Wenker (Ronald) v. State ( 2013 )

 wide discretion in its sentencing decision, see, e.g., Houk v. State, 103 Nev.
659, 664, 747 P.2d 1376, 1379 (1987), and will refrain from interfering
with the sentence imposed by the district court "[s]o long as the record
does not demonstrate prejudice resulting from consideration of
information or accusations founded on facts supported only by impalpable
or highly suspect evidence," Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
1161 (1976).
Wenker does not allege that this statement or any other
evidence was founded on impalpable or highly suspect evidence but
nonetheless contends that the district court abused its discretion by
admitting the statement in violation of the Eighth Amendment. Wenker
has failed to demonstrate that the statement violated his rights under the
Eighth Amendment. See McNelton v. State, 111 Nev. 900, 906, 900 P.2d
934, 938 (1995) (victim impact evidence is "not categorically barred by the
Eighth Amendment") (citing Payne v. Tennessee, 510 U.S. 808, 825 (1991));
see also State v. Martinez, 304 P.3d 54, 59 (Utah 2013) ("[T]he Eighth
Amendment doctrine of Payne, which establishes an absolute bar on
certain types of victim impact testimony, does not apply to sentencing
proceedings where death is not an option."). NRS 176.145(1)(c) requires
that presentence investigation reports contain, "[i]nformation concerning
the effect that the offense committed by the defendant has had upon the
victim. . . to the extent that such information is available from the victim
...continued
issues for the first time in a reply brief. NRAP 28(c). Therefore, we
decline to address these issues on appeal.
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or other sources." "[T]he extent of the information to be included in the
report is solely at the discretion of the Division." NRS 176.145(1)(c).
Given that this court has held that it was not error for the district court to
hear an oral victim-impact statement requesting that the defendants
"spend the rest of their lives in jail," Randell v. State, 109 Nev. 5, 6-7, 846
P.2d 278, 279-80 (1993), we conclude that the district court did not abuse
its discretion at sentencing by considering a similar statement in the
Division of Parole and Probation's written report.
Second, Wenker contends that the district court imposed a
disproportionate sentence constituting cruel and unusual punishment in
violation of the United States Constitution. U.S. Const. amend. VIII.
Wenker argues that because he is 65 years old and not likely to live to the
age of 95, his sentence of three consecutive life terms, each carrying a
minimum parole eligibility after 10 years, is unconstitutionally
disproportionate to the gravity of his offenses because it amounts to a
sentence of life without the possibility of parole. In other words, Wenker
argues that his punishment is cruel and unusual because the last third of
his life will likely be spent in prison. Wenker pleaded guilty to sexually
assaulting and committing lewd acts with the child victim on multiple
occasions over a period of five years, more than a third of the child's entire
life. Wenker's sentence falls within the parameters provided by the
relevant statutes, see NRS 201.230(2); NRS 200.366(2)(b), and we conclude
that his sentence is not so unreasonably disproportionate to the gravity of
the offenses as to shock the conscience, see Culverson v. State, 95 Nev. 433,
435, 596 P.2d 220, 221-22 (1979); Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion); see also People v. Cisneros, 855 P.2d
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822, 826 (Colo. 1993) (en bane) ("[M]itigating factors, such as the
defendant's [old] age, are irrelevant in determining whether a punishment
is proportionate to the crime under the Eighth Amendment"); United
States v. Murphy, 899 F.2d 714, 719 (8th Cir. 1990) ("[Old] age is
irrelevant to the validity of. . . sentences under the Eighth Amendment.").
Therefore, Wenker's sentence did not amount to cruel and unusual
punishment, and we
ORDER the judgment of conviction AFFIRMED.
/
Hardesty
J.
cc: Hon. Lidia Stiglich, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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