LaChance v. State , 2014 NV 29 ( 2014 )

130 Nev., Advance Opinion 2.1
IN THE SUPREME COURT OF THE STATE OF NEVADA
DARREN GABRIEL LACHANCE, No. 62129
Appellant,
vs.
FILED
THE STATE OF NEVADA, APR 0 3 2014
Respondent.
TRAC1E K. LINDEMAN
CLLRIANOF SLIEREI
M
BY
Appeal from a judgment of conviction, pursualit to a jury
verdict, of domestic battery by strangulation, domestic battery causing
substantial bodily harm, possession of a controlled substance for the
purpose of sale, possession of a controlled substance, false imprisonment,
and unlawful taking of a motor vehicle. Second Judicial District Court,
Washoe County; Patrick Flanagan, Judge.
Affirmed in part and reversed in part.
Richard F. Cornell, Reno,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
Attorney, Washoe County,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
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OPINION
By the Court, CHERRY, J.:
In this opinion, we address whether the charge of possession of
a controlled substance is a lesser-included offense of possession of a
controlled substance for the purpose of sale. Under the Double Jeopardy
Clause, a criminal defendant may not be punished multiple times for the
same offense unless the Legislature has clearly authorized the
punishments. Missouri v. Hunter, 459 U.S. 359, 366 (1983). Because we
conclude that possession of a controlled substance is a lesser-included
offense of possession of a controlled substance for the purpose of sale, we
conclude that appellant may not be punished for both crimes. To remedy
the double-jeopardy violation, we look to the range of punishment for the
principal offenses and reverse the conviction with the lesser penalty.
Based on appellant's criminal history, we conclude that simple possession
was the less severely punishable offense, and we, accordingly, reverse that
conviction. However, we affirm the remainder of the judgment of
conviction, including the adjudication of appellant as a habitual criminal.
FACTS
After Darren LaChance returned home from a three-day
gambling binge, he and his girlfriend, Starleen Lane, got into an argument
in the early hours of the morning. Their roommate, Conrad Coultre (CJ),
also became involved in the argument later that morning. Lane testified
that after LaChance and CJ started arguing, LaChance hit her on the
right side of her forehead with a flashlight. Then, after CJ left for work,
LaChance grabbed her by the arm and flung her into the bedroom while
yelling, belittling, and threatening to kill and maim her. He began to
punch and slap her face and ear, threw her on the bed, and got on top of
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her with his knee on her chest and his hand around the lower part of her
neck. LaChance used his body weight to put pressure on her chest and
lower neck. Lane had difficulty breathing and saw stars because of the
pressure and because of her fear and anxiety. After Lane started to
scream, LaChance covered her mouth with his hand.
Lane further stated that LaChance repeatedly slapped her
ear, and it "just went blank." She could no longer hear and became
immediately nauseous. Lane was able to roll into a fetal position while he
kicked her in the shins and tailbone and hit her with the flashlight. When
she tried to get up, LaChance stomped on her feet.
According to Lane, LaChance eventually left the room, and
Lane opened the patio door, jumped off the balcony, and fled with
LaChance chasing her. LaChance caught up to her but, after a neighbor
yelled that she was calling the cops, LaChance fled to Lane's car and drove
off without her permission. The neighbor testified that she saw LaChance
beating Lane, and after she yelled at him, he ran off The neighbor then
called the police. Lane waited for the police to arrive, and she made a
report before going to the hospital.
At the hospital, Lane was treated for multiple contusions on
her face, back, legs, feet, and ear. She suffered pain in that ear and
tenderness in her neck, abdomen, pelvis, and extremities. Lane stated
that she was immobile for a few days afterward. She has permanent shin
splints and can no longer run. Due to her tailbone injuries, she is unable
to sit for long periods of time Lane testified that she suffers from hearing
loss and ongoing pain. But, due to a lack of medical insurance, she does
not go to the doctor for these problems
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Lane testified that following the assault, she received a
number of intimidating text messages from LaChance, indicating that she
needed to make the case go away. Lane decided not to press charges out of
fear.
About a week after the incident, Lane met with LaChance at a
Motel 6. She indicated that the detectives knew of their meeting as her
phones were tapped. Lane stayed with LaChance at the motel for two
nights.
On the second morning, Lane stated that she left the motel
room to smoke a cigarette, rounded the corner, and ran into a group of
police officers looking for LaChance. They had established a perimeter
when Lane happened upon them. Lane granted consent to the police to
enter and search the motel room. Detective Curtis English testified that
LaChance did not immediately exit the motel room and was alone in the
room for approximately 10 minutes.
When police finally searched the room, they found marijuana
floating in the toilet and plastic bags. Police obtained a warrant to search
LaChance's duffel bags for controlled substances as the result of a canine
alert. Detective English testified that they found approximately 4.6
pounds of marijuana and several scales.
LaChance was subsequently charged by way of information
with domestic battery by strangulation, domestic battery causing
substantial bodily harm, felony possession of a controlled substance for the
purpose of sale (NRS 453.337), felony possession of a controlled substance
(NRS 453.336), false imprisonment, and unlawful taking of a motor
vehicle. He pleaded not guilty to all counts.
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The jury ultimately found LaChance guilty on all counts. The
State subsequently gave notice on the record of its intent to pursue
habitual criminal enhancements due to LaChance's five prior felony
convictions. When asked what the State needed to do to meet the
statutory requirements to provide notice, defense counsel and the district
court agreed that written notice would be sufficient. A notice of habitual
criminal enhancement was filed.
In discussing the sentence, the district court noted LaChance's
young age, the victim impact statements, the severity of the beating, and
the five prior felony convictions. The district court determined that the
habitual criminal enhancement applied and adjudicated LaChance as a
habitual criminal on two of the principal offenses: domestic battery
causing substantial bodily harm and possession of a controlled substance.
The district court then sentenced LaChance to 24 to 60 months for
domestic battery by strangulation, 10 years to life for domestic battery
causing substantial bodily harm, 72 to 180 months for felony possession of
a controlled substance for the purpose of sale, 10 years to life for felony
possession of a controlled substance, 12 months for false imprisonment,
and 12 months for unlawful taking of a motor vehicle. A judgment of
conviction was entered. LaChance appealed.
DISCUSSION
Sufficiency of the evidence
We first address LaChance's challenge to the sufficiency of the
evidence to support the convictions for domestic battery by strangulation
and domestic battery causing substantial bodily harm. Under a challenge
to the sufficiency of the evidence, this court reviews the evidence in the
light most favorable to the prosecution and determines whether "any
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rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Mitchell v. State, 124 Nev. 807, 816, 192 P.3d
721, 727 (2008) (emphasis and internal quotation marks omitted). The
jury is tasked with assessing the weight of the evidence and the witnesses'
credibility, id.; Rose v. State, 123 Nev. 194, 202-03, 163 P.3d 408, 414
(2007), and may rely on both direct and circumstantial evidence in
returning its verdict, Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
(1980).
Domestic battery by strangulation
LaChance contends that there was insufficient evidence of
strangulation, and therefore, he could not be convicted of felony battery
under NRS 200.485(2). He argues that the strangulation element was
only supported by speculation and ambiguous statements and that any
difficulty in breathing resulted from Lane's anxiety.
NRS 200.481(1)(a) defines battery as "any willful and
unlawful use of force or violence upon the person of another." See also
NRS 33.018 (defining acts of domestic violence). When the battery is
committed by strangulation, the perpetrator is guilty of a felony rather
than a misdemeanor. NRS 200.485(2). The Legislature defined
strangulation as "intentionally impeding the normal breathing or
circulation of the blood by applying pressure on the throat or neck or by
blocking the nose or mouth of another person in a manner that creates a
risk of death or substantial bodily harm." NRS 200.481(1)(h).
In reviewing the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could have found
beyond a reasonable doubt that LaChance strangled Lane. The State
presented evidence that LaChance placed his knee on Lane's chest and his
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hands on her clavicle/lower part of her neck and then put pressure on the
area, impeding her breathing to the point that her vision was impaired.
Depriving Lane of oxygen to the point where she lost vision supports a
findingS that LaChance applied pressure to Lane's throat or neck in a
manner that created a risk of death or substantial bodily harm.
Accordingly, we affirm the conviction for domestic battery by
strangulation.
Domestic battery causing substantial bodily harm
LaChance also challenges the sufficiency of the evidence
supporting the substantial-bodily-harm element of the domestic-battery-
causing-substantial-bodily-harm conviction. He also contends that where
the substantial-bodily-harm element is based on prolonged pain, the pain
must also be substantial, and here it was not.'
"LaChance also avers that the Collins v. State, 125 Nev. 60, 203 P.3d
90 (2009), definition of "prolonged physical pain" is inadequate and that
this court should adopt the "prolonged. . . pain" standard elucidated in the
dissent of State v. King, 827 N.E.2d 398, 402 (Ohio Ct. App. 2005) (Rocco,
J., dissenting). Because LaChance's counsel acquiesced to the use of the
definition found in Collins during trial, appellate consideration of this
issue is limited to constitutional or plain error. Saletta v. State, 127 Nev.
„ 254 P.3d 111, 114 (2011) (noting that failure to object during trial
generally precludes appellate consideration of an issue); Somee v. State,
124 Nev. 434, 443, 187 P.3d 152, 159 (2008) ("[T]his court has the
discretion to review constitutional or plain error."). Because there is no
alleged constitutional component to this argument, the error here must be
plain. "An error is plain if the error is so unmistakable that it reveals
itself by a casual inspection of the record." Saletta, 127 Nev. at , 254
P.3d at 114 (internal quotation omitted). The error must also be clear
under current Nevada law. Id. Accordingly, plain error cannot exist here
because such a finding would be inconsistent with Collins, the controlling
Nevada authority.
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Where a battery results in substantial bodily harm, the
battery becomes a felony. See NRS 200.485(2); NRS 200.481(2)(b). NRS
0.060 defines substantial bodily harm as "[b[odily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any
bodily member or organ; or... [plrolonged physical pain." We have stated
that "the phrase 'prolonged physical pain' must necessarily encompass
some physical suffering or injury that lasts longer than the pain
immediately resulting from the wrongful act." Collins v. State, 125 Nev.
60, 64, 203 P.3d 90, 92-93 (2009). "In a battery, for example, the
wrongdoer would not be liable for 'prolonged physical pain' for the
touching itself. However, the wrongdoer would be liable for any lasting
physical pain resulting from the touching." Id. at 64 n.3, 203 P.3d at 93
n.3.
Reviewing the evidence in the light most favorable to the
prosecution, we conclude that the State presented sufficient evidence to
establish that Lane suffered prolonged physical pain. Lane was treated at
the hospital for hemorrhaging of the ear and multiple contusions and
welts. She testified that she was immobile for a few days afterward and
that her injuries have resulted in permanent shin splints, which prevent
her from running. The injuries to her tailbone hinder her ability to sit for
long periods. She also has hearing loss as a result of the injuries suffered
from the assault. We conclude that Lane's testimony and the medical
records support a finding that Lane suffered "some physical suffering or
injury that lasts longer than the pain immediately resulting from the
wrongful act." Collins, 125 Nev. at 64, 203 P.3d at 92-93. Accordingly,
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LaChance's conviction for domestic battery causing substantial bodily
harm is supported by sufficient evidence.
Lesser-included offenses
LaChance argues that the convictions and sentences for
possession of a controlled substance for the purpose of sale (MRS 453.337)
and the lesser-included offense of simple possession (NRS 453.336) based
on the same controlled substance violates the Double Jeopardy Clause. 2
The State argues that because NRS 453.336 includes a weight element
and NRS 453.337 includes an intent element, simple possession under
NRS 453.336 is not a lesser-included offense of possession for sale under
NRS 453.337. 3
2 LaChance cites to Fairman v. State, for the proposition that
possession of a controlled substance is a lesser-included offense of
possession of a controlled substance for the purpose of sale. 83 Nev. 137,
141, 425 P.2d 342, 344-45 (1967), abrogated on other grounds by Bigpond
v. State, 128 Nev. „ 270 P.3d 1244, 1249 (2012). However, the
Fairman court dealt with a situation where the defendant was found
guilty of two crimes under the same statute and determined that only one
conviction may arise out of a single statute. 83 Nev. at 141, 425 P.2d at
344-45. The statutory scheme has since changed, with possession for sale
and simple possession separated into different statutes.
3 The State asserts that because LaChance never gave the district
court the opportunity to address the double jeopardy issue and because
double jeopardy protections are waivable, this court should decline to
consider the challenge. While double jeopardy challenges may be waived
under certain conditions, United States v. Brace, 488 U.S. 563, 568 (1989),
waiver of a fundamental constitutional right must be knowing and
intentional. Raquepaw v. State, 108 Nev. 1020, 1023, 843 P.2d 364, 366-
67 (1992), overruled on other grounds by DeRosa v. First Judicial Dist.
Court, 115 Nev. 225, 234, 985 P.2d 157, 163 (1999), overruled on other
grounds by City of Las Vegas v. Walsh, 121 Nev. 899, 906, 124 P.3d 203,
208 (2005), overruled on other grounds by City of Reno v. Howard, 130
continued on next page...
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"Although failure to object at trial generally precludes
appellate review, this court has the discretion to review constitutional or
plain error." Somee v. State, 124 Nev. 434, 443, 187 P.3d 152, 159 (2008);
see also United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008)
(reviewing unobjected-to double jeopardy claims under a plain error
standard). Plain error exists when the error was clear and it affects a
defendant's substantial rights. Mclellan v. State, 124 Nev. 263, 269, 182
P.3d 106, 110 (2008).
"The Double Jeopardy Clause protects against .. . multiple
punishments for the same offense." Jackson v. State, 128 Nev. ,
291 P.3d 1274, 1278 (2012). The Supreme Court of the United States has
clarified that the Double Jeopardy Clause does not prohibit multiple
punishments if the legislature clearly authorizes them. Missouri v.
Hunter, 459 U.S. 359, 366 (1983). If legislative intent is unclear, this
court utilizes the Blockburger v. United States, 284 U.S. 299, 304 (1932),
test to determine the permissibility of multiple punishments for the same
offense. Jackson, 128 Nev. at , 291 P.3d at 1278. There, the Supreme
Court held that "where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of am n additional] fact which the other does not."
Block burger, 284 U.S. at 304. The Blockb urger test asks "whether the
offense in question cannot be committed without committing the lesser
offense." Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006)
...continued
Nev. 318 P.3d 1063, 1067 (2014), An intentional relinquishment
has not been demonstrated here.
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(internal quotation omitted). A person cannot be convicted of both a
greater- and lesser-included offense. Id.
The statute proscribing possession with an intent to sell
provides that "it is unlawful for a person to possess for the purpose of
sale . . . any controlled substance classified in schedule I or II." NRS
453.337(1). 4 The possession statute simply provides that "[a] person shall
not knowingly or intentionally possess a controlled substance." NRS
453.336(1). 5
The elements of simple possession are included in possession
for sale—if one is guilty of possession for sale, he or she will necessarily be
guilty of simple possession. See NRS 453.337(1); NRS 453.336(1); see also
Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594-95 (1966) ("No sale of
narcotics is possible without possession, actual or constructive?" (quoting
People v. Rosales, 38 Cal. Rptr. 329, 331 (Ct. App. 1964)). The State relies
on the additional weight element under NRS 453.336(4) 6 to distinguish
4NRS 453.337(1), unlawful possession for sale, provides that
leixcept as otherwise authorized by the provisions of NRS 453.011 to
453.552, inclusive, it is unlawful for a person to possess for the purpose of
sale . . . any controlled substance classified in schedule I or II."
5 NRS 453.336(1), unlawful possession not for purpose of sale,
provides that "a person shall not knowingly or intentionally possess a
controlled substance."
6 NRS 453.336 provides, in pertinent part, that:
4. Unless a greater penalty is provided
pursuant to NRS 212.160, a person who is
convicted of the possession of 1 ounce or less of
marijuana:
(a) For the first offense, is guilty of a
misdemeanor and shall be:
continued on next page...
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the offenses. However, the weight element under NRS 453.336 is a factor
to be considered in sentencing and is not an element of the offense for
purposes of Blockburger. The weight does not affect guilt; it only
determines the sentence for simple possession of marijuana. And because
all of the elements of simple possession under NRS 453.336 are subsumed
within the elements of possession for the purpose of sale under NRS
453.337, it is irrelevant for purposes of the double-jeopardy analysis that
possession for the purpose of sale has an additional intent element that is
not an element of simple possession. See Rosas v. State, 122 Nev. 1258,
...continued
(1) Punished by a fine of not more than
$600; or
(2) Examined by an approved facility for
the treatment of abuse of drugs to determine
whether the person is a drug addict and is likely to
be rehabilitated through treatment and, if the
examination reveals that the person is a drug
addict and is likely to be rehabilitated through
treatment, assigned to a program of treatment
and rehabilitation pursuant to NRS 453.580.
(b) For the second offense, is guilty of a
misdemeanor and shall be:
(1) Punished by a fine of not more than
$1,000; or
(2) Assigned to a program of treatment
and rehabilitation pursuant to NRS 453.580.
(c) For the third offense, is guilty of a gross
misdemeanor and shall be punished as provided in
NRS 193.140.
(d) For a fourth or subsequent offense, is
guilty of a category E felony and shall be punished
as provided in NRS 193.130.
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1263, 147 P.3d 1101, 1105 (2006) ("A lesser offense is included in a greater
offense when all of the elements of the lesser offense are included in the
elements of the greater offense." (internal quotation omitted).
Accordingly, the convictions for both violate double jeopardy.
The parties disagree as to which conviction should be vacated
to remedy the double-jeopardy violation. The State argues that Meador v.
State, 101 Nev. 765, 771, 711 P.2d 852, 856 (1985), disapproved of on other
grounds by Talancon v. State, 102 Nev. 294, 301 & n.3, 721 P.2d 764, 768
n.3, 769 (1986), makes it clear that the crime with the more lenient
sentence should be vacated. Applying that rule to this case, the State
argues that the possession-for-sale conviction should be vacated because it
carries the lesser sentence as a result of the district court adjudicating
LaChance as a habitual criminal on simple possession and increasing the
sentence for that offense accordingly. LaChance contends that we should
look at the maximum punishment for the principal offense, ignoring any
habitual criminal adjudication, to determine which is the lesser offense.
We ordinarily look to the range of punishment to determine
which offense is the lesser-included offense. See Brown v. State, 113 Nev.
275, 287, 934 P.2d 235, 243 (1997) (vacating the conviction for child abuse
and maintaining the convictions for sexual assault based on the conclusion
that "while the child abuse count required proof of an extra element, i.e.,
that the sexual assault caused physical pain and mental suffering, the
extra element did not transform the child abuse charge into the greater
crime at issue"); Meador, 101 Nev. at 771, 711 P.2d at 856 (relying on a
California case for the proposition that if a defendant is "convicted of two
offenses which are actually one, [the] conviction of [the] less severely
punishable offense should be set aside" (citation omitted)). Under that
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approach, simple possession would be the lesser offense. Compare MRS
453.336(2)-(4) (penalties for simple possession of controlled substance),
with MRS 453.337(2) (penalties for possession for sale of schedule I and II
controlled substance), and MRS 453.338(2) (penalties for possession for
sale of schedule III, W, or V controlled substance).
The issue is only complicated in this case because the district
court adjudicated LaChance as a habitual criminal on the simple-
possession offense but not the possession-for-sale offense. This had the
effect of increasing both the category and range of punishment for the
simple-possession offense, see NRS 207.010, making the possession-for-
sale offense the less severely punishable offense. Because the double-
jeopardy analysis is based solely on the elements of the principal offenses,
we conclude that the district court should look to the range of punishment
for the principal offenses in deciding which conviction to vacate.
Based on LaChance's criminal history, the charge for
possession of a controlled substance is a category D felony, MRS
453.336(2)(b), with a sentencing range of 1 to 4 years, MRS 193.130(2)(d).
However, his charge for possession of a controlled substance for the
purpose of sale is a category B felony, with a sentencing range of 3 to 15
years. MRS 453.337(2)(c). Looking solely at the principal offenses, simple
possession is the less severely punishable offense. Accordingly, we reverse
the conviction for felony possession of a controlled substance (count II), the
lesser-included offense in this instance.
Notice of intent to seek habitual criminal adjudication
LaChance argues that the district court committed plain error
and violated his constitutional rights to a fair trial and due process in
allowing habitual offender adjudication without an information or an
arraignment indicating that the State was seeking habitual offender
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treatment. He avers that while his counsel did not object to a notice being
filed, this notice could not have replaced the required charging document.
The State points out that adequate actual notice of the habitual criminal
enhancement was provided and that no arraignment was necessary as
being a habitual criminal is an allegation of a status, not a criminal
charge.
LaChance's failure to object to this issue below results in this
court conducting plain error review of this issue. Saletta v. State, 127 Nev.
„ 254 P.3d 111, 114 (2011) (noting that failure to object during trial
generally precludes appellate consideration of an issue). Plain error
review requires this court to "examine whether there was error, whether
the error was plain or clear, and whether the error affected the
defendant's substantial rights." Id. (internal quotation omitted).
Even if it was error to file a notice rather than filing a
separate count or amending the information to include the habitual
criminal allegation, NRS 207.016(2), LaChance cannot demonstrate that
his substantial rights were affected for two reasons. First, he agreed to
the procedure used in this case. See Pearson v. Pearson, 110 Nev. 293,
297, 871 P.2d 343, 345 (1994) (holding plain error does not exist when the
complaining party contributed to the error because a defendant "will not
be heard to complain on appeal of errors which he himself induced or
provoked the court or the opposite party to commit" (citation and internal
quotation omitted)).
Second, the clear purpose of NRS 207.010(2) is to ensure that
the defendant has notice that the State will request habitual criminal
adjudication. See NRS 207.016(2) (allowing the habitual criminal to be
added right before trial or at any time before sentence is imposed, so long
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as there is sufficient time between addition and sentence). Here, he had
written notice. Moreover, habitual criminal adjudication is not an offense,
it is a status determination, Schneider v. State, 97 Nev. 573, 575, 635 P.2d
304, 305 (1981), that is not subject to jury determination, O'Neill v. State,
123 Nev. 9, 15, 153 P.3d 38, 42 (2007). So, there is no need for a
preliminary hearing or arraignment. See NRS 174.015; Hanley v. Zenoff,
81 Nev. 9, 12, 398 P.2d 241, 242 (1965) (requiring a new arraignment for
material changes to the charges). Since LaChance does not have those
rights as to habitual criminal allegation, the error could not have
substantially affected those rights. Accordingly, plain error was not
demonstrated.
Adjudicating La Chance as a habitual criminal
Adjudication of a defendant as a habitual criminal is "subject
to the broadest kind of judicial discretion." Tanksley v. State, 113 Nev.
997, 1004, 946 P.2d 148, 152 (1997) (internal quotation omitted). In
determining if a finding of habitual criminal is proper, "this court looks to
the record as a whole to determine whether the sentencing court actually
exercised its discretion." O'Neill, 123 Nev. at 16, 153 P.3d at 43 (internal
citation omitted). A sentencing court meets its obligations so long as it
"was not operating under a misconception of the law regarding the
discretionary nature of a habitual criminal adjudication." Id. (internal
citation omitted). Moreover, in considering the enhancement, the "court
may consider facts such as a defendant's criminal history, mitigation
evidence, victim impact statements and the like." Id.
The court may "dismiss a count under NRS 207.010 when the
prior offenses are stale or trivial, or in other circumstances where an
adjudication of habitual criminality would not serve the purposes of the
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statute or the interests of justice." French v. State, 98 Nev. 235, 237, 645
P.2d 440, 441 (1982). The "habitual criminality statute exists to enable
the criminal justice system to deal determinedly with career criminals
who pose a serious threat to public safety." Sessions v. State, 106 Nev.
186, 191, 789 P.2d 1242, 1245 (1990).
LaChance asserts that he has a constitutionally protected
liberty interest under the due process clause of the Fourteenth
Amendment to have the State adhere to NRS 207.010. See Walker v.
Deeds, 50 F.3d 670, 673 (9th Cir. 1995) ("Nevada's law requiring a court to
review and make particularized findings that it is lust and proper' for a
defendant to be adjudged a habitual offender also creates a
constitutionally protected liberty interest in a sentencing procedure.").
Concerning the requisite number of previous felonies for the habitual
criminal enhancement, LaChance argues that this court should adopt the
majority rule that multiple punishments entered during the same time
period are considered only one felony. He then points out that because of
the time periods for the felonies, he only was imprisoned twice.
The State argues that the habitual criminal enhancement is
not concerned with the number of times the individual passes through the
prison system but is concerned with the number of convictions. The State
avers that this court should recognize the statute as written by the
Legislature, which makes no reference to the number of prison sentences,
and decline to usurp the legislative function. 7
7 LaChance argues for the first time in the reply brief that NRS
207.010(1) is ambiguous. Because the Nevada Rules of Appellate
Procedure do not allow litigants to raise new issues for the first time in a
reply brief, we decline to consider this argument. NRAP 28(c).
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The governing statute, NRS 207.010(1)(b), states that a person
who has been convicted of at least three felonies is a habitual criminal and
shall be punished for a category A felony. 8 However, "[t]he trial judge
may, at his or her discretion, dismiss a [habitual criminal]
count[,] . . . which is included in any indictment or information." NRS
207.010(2).
The determination of the number of prior felonies for the
habitual criminal enhancement is based on the statutory scheme created
by the legislature, not on extrajurisdictional caselaw. See Cynthia L.
Sletto, Annotation, Chronological or Procedural Sequence of Former
Convictions as Affecting Enhancement of Penalty Under Habitual Offender
Statutes, 7 A.L.R. 5th 263 (1992) (revealing a split of authority on the
subject of whether "prior offenses and convictions must have occurred in
chronological sequence, with each subsequent offense having been
committed after conviction of the immediately preceding offense . . . the
resolution of which often depends on the language of the particular statute
under consideration and the court's opinion of what purpose such a statute
is intended to serve"); 24 C.J.S. Criminal Law § 2316 (2006) (stating that
the circumstantial application of enhancements is statutorily based).
8NRS 207.010(1)(a) provides that a person convicted of
[a]ny felony, who has previously been two times
convicted, whether in this State or elsewhere, of
any crime which under the laws of the situs of the
crime or of this State would amount to a felony is
a habitual criminal and shall be punished for a
category B felony by imprisonment in the state
prison for a minimum term of not less than 5
years and a maximum term of not more than 20
years.
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Based on the language and intent of NRS 207.010, we have
held "that where two or more convictions grow out of the same act,
transaction or occurrence, and are prosecuted in the same indictment or
information, those several convictions may be utilized only as a single
'prior conviction' for purposes of applying the habitual criminal statute."
Rezin v. State, 95 Nev. 461, 462, 596 P.2d 226, 227 (1979); see also
Halbower v. State, 96 Nev. 210, 211-12, 606 P.2d 536, 537 (1980) (same).
This rule "is consistent with the policy and purpose of the recidivist
statute. By enacting the habitual criminal statute, the legislature sought
to discourage repeat offenders and to afford them an opportunity to
reform." Rezin, 95 Nev. at 462-63, 596 P.2d at 227.
LaChance has given us no reason to depart from our prior
interpretation of the statutory scheme and impose additional time-period
constraints on prior convictions that are not provided for in the statute.
NRS 207.010 allows for reform between felonious acts. This time for
reform does not hinge on arrests and to so limit reform to time periods
between prison terms would hobble the district court's discretion "to deal
determinedly with career criminals who pose a serious threat to public
safety." Sessions, 106 Nev. at 191, 789 P.2d at 1245. Accordingly, we
decline to impose additional constraints on the district court's
discretionary determination of whether habitual criminal adjudication is
warranted.
LaChance had been convicted of five prior felonies—(1) a
November 14, 2002, conviction for felony battery causing substantial
bodily harm for an event that took place on May 13, 2001; (2) a November
14, 2002, felony conviction for possession of 4 grams or more but less than
14 grams of a schedule I controlled substance for an event that took place
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on May 29, 2002; (3) a February 27, 2003, felony conviction for possession
of a stolen motor vehicle for an event that took place on October 9, 2002;
(4) an April 3, 2007, felony conviction for trafficking in a controlled
substance for an event that took place on October 3, 2006; and (5) an
August 23, 2012, felony conviction for possession of a controlled substance
for an event that took place on July 12, 2007. The record thus establishes
that LaChance has at least three separate and distinct prior felony
convictions for purposes of applying the habitual criminal statute. Our
analysis of Nevada's law on habitual offender enhancement leads us to
conclude that the district court was well within its discretion in sentencing
LaChance as a habitual offender.
Accordingly, we reverse the conviction for felony possession of
a controlled substance (count II), the lesser-included offense in this
instance, and otherwise affirm the judgment of conviction.
J.
We concur:
J.
Hardesty
Parraguirre
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