Bey (Dearcy) v. State ( 2014 )

 directed toward the codefendant's sentence, the prosecutor commented, "I
want to point out to the Court, however, and we did this with both
defendants," that the agreed-upon sentence did not reflect the total range
of punishment possible for the offenses but that "we're going to stick to our
negotiations and not ask for more than seven years." The prosecutor
further commented that there were "pluses and minuses to doing
negotiations that way" and that the disadvantage was that the district
court "kind of focuses on, well, the maximum seven years, when really the
maximum for attempt robbery is ten years, we're merely agreeing not to
argue for more than seven. So we're arguing for, essentially, what would
be a mid-range sentence." Appellant acknowledges that these comments
were made during the codefendant's sentencing but argues that the
prosecutor's statement that "we did this with both of the defendants"
referred to him and breached the spirit of his plea agreement by
reminding the district court that a sentence greater than the agreed-upon
sentence could be imposed. He argues that the State's breach was further
evidenced by the prosecutor's comments during his sentencing that the
agreed-upon sentence was not the maximum sentence possible for his
offenses, describing the recommended sentence as "mid-range," and the
prosecutor's request that appellant be sentenced to the "maximum of 18
(eighteen) that [the State] can argue for." Because appellant did not object
during the sentencing hearing, we review his claim for plain error
affecting his substantial rights. See Sullivan v. State, 115 Nev. 383, 387
n.3, 990 P.2d 1258, 1260 n.3 (1999); see also Hanley v. State, 97 Nev. 130,
137, 624 P.2d 1387, 1391 (1981) (concluding that the defendant's failure to
object to an alleged plea bargain violation during the sentencing hearing
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waived appellate review of the claim), abrogated on other grounds as
stated in Woods v. State, 114 Nev. 468, 475-76, 958 P.2d 91, 96 (1998). 2
When the State enters into a plea agreement, it "is held to the
most meticulous standards of both promise and performance" in
fulfillment of both the terms and the spirit of the plea bargain. Van
Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986) (quoting
Kluttz v. Warden, 99 Nev. 681, 683-84, 669 P.2d 244, 245 (1983)). "[I]n
arguing in favor of a sentencing recommendation that the state has agreed
to make, the prosecutor must refrain from either explicitly or implicitly
repudiating the agreement." Sullivan, 115 Nev. at 389, 990 P.2d at 1262.
Considering the challenged comments in context, we conclude that the
prosecutor's statements made during the codefendant's sentencing were
not a call to the district court to impose a sentence greater than the
agreed-upon sentence and the State did not explicitly or implicitly
repudiate the agreement but merely conveyed to the district court during
appellant's sentencing that although the agreed-upon sentence was not
the maximum possible sentence, it was appropriate under the facts and
2 Wenote that appellant filed a motion to vacate the judgment of
conviction, arguing that the State breached the plea agreement on the
grounds asserted in this appeal. The district court denied the motion,
concluding that the prosecutor's comments made during the codefendant's
sentencing were unequivocally directed toward the codefendant, not
appellant, and that the State "wholeheartedly embraced the terms of
[appellant's] plea agreement, referring to the agreed-upon 18-year
maximum multiple times throughout their argument."
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circumstances of the offenses. Because appellant has not demonstrated
plain error, we
ORDER the judgment of conviction AFFIRMED.
p!dem tuf
t J.
Pickering
1 caA...A ex-961— J. J.
Parrag-airre Saitta
cc: Hon. Jerome T. Tao, District Judge
Keith C. Brower
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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