Krieger (Matthew) v. State ( 2014 )

 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). Regardless of its severity, a sentence within the statutory limits is
not "cruel and unusual punishment unless the statute fixing punishment
is unconstitutional or the sentence is so unreasonably disproportionate to
the offense as to shock the conscience." Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (quoting CuIverson v. State, 95 Nev. 433, 435, 596
P.2d 220, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion). Moreover, "sentencing is an
individualized process; therefore, no rule of law requires a court to
sentence codefendants to identical terms." Nobles v. Warden, 106 Nev. 67,
68, 787 P.2d 390, 391 (1990).
Here, the district court was presented with evidence that
Krieger goaded the victim into a confrontation, knocked him unconscious,
and beat his unconscious body, causing his death. Krieger's consecutive
prison terms of 48-120 months and 72-180 months and fine of $10,000 fall
within the parameters imposed by the relevant statutes, see NRS 200.080;
NRS 200.340(2), and Krieger fails to demonstrate that these statutes are
unconstitutional or that the district court relied solely upon impalpable or
highly suspect evidence when imposing sentence. We conclude that the
district court did not abuse its discretion.
Second, Krieger contends that the State erroneously cross-
examined his mother at sentencing regarding her knowledge of offenses he
committed as a juvenile without following the proper procedure to unseal
his juvenile records, and that the district court erroneously considered his
juvenile offenses when imposing sentence. We disagree with these
contentions. Krieger does not demonstrate that the information regarding
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his juvenile offenses was obtained from sealed records. See generally Zana
v. State, 125 Nev. 541, 546, 216 P.3d 244, 247 (2009) (the act of sealing a
juvenile's records only erases the official record of his involvement with
the criminal justice system, "not his actual conduct and certainly not his
conduct's effect on others"). Moreover, Krieger did not object to the
inclusion of the juvenile offenses in the presentence investigation report,
the district court's consideration of the offenses, or the cross-examination
of his mother, and we conclude that he fails to demonstrate plain error
affecting his substantial rights. See Mendoza-Lobos v. State, 125 Nev.
634, 644, 218 P.3d 501, 507 (2009) (reviewing unobjected to errors at
sentencing for plain error).
Third, Krieger contends that (1) the district court's order that
he pay $5,000 in attorney's fees violates his right to equal protection, (2)
NRS 178.3975 is unconstitutionally vague, and (3) the $5,000 attorney fee
demand was excessive and constituted an impermissible fine because the
district court failed to consider the burden that paying the fees would
place on him and his family. We disagree with these contentions.
Krieger's equal protection challenge fails because MRS 178.3975 does not
burden a suspect class and is reasonably related to a legitimate
government interest. See Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d
812, 817 (2005). Moreover, the statute is not penal, see State v. Webster,
102 Nev. 450, 454, 726 P.2d 831, 833-34 (1986), and therefore does not
implicate the void-for-vagueness doctrine, see Glauner v. Miller, 184 F.3d
1053, 1055 (9th Cir. 1999). Finally, Krieger did not object to the
imposition of attorney's fees and he fails to demonstrate that the district
court did not consider all relevant factors when imposing them. See NRS
178.3975(2).
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Having considered Krieger's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
P C*4.ALCLir,
Parraguirre
Saitta
PICKERING, J., concurring in part and dissenting in part:
I agree that Krieger's claims lack merit and concur with the
denial of these claims. I write separately to address respondent's counsel's
failure to file a fast track response.
When a party fails to file a brief on appeal, this court can
impose any number of meaningful sanctions. See NRAP 3C(n); NRAP
31(d). By rule, this court may dismiss an appeal where the appellant fails
to file an opening brief, NRAP 31(d), but when the appellant has a
constitutional right to effective assistance of appellate counsel, the court
typically imposes sanctions other than dismissal of the appeal. See, e.g.,
Burke v. State, 110 Nev. 1366, 887 P.2d 267 (1994) (imposing monetary
and other sanctions against appellant's counsel, rather than dismissing
the appeal, for counsel's failure to brief the appeal). In contrast, the
respondent's failure to file a brief can be treated as a confession of error.
NRAP 31(d); Polk v. State, 126 Nev. „ 233 P.3d 357, 359-60 (2010).
This court, however, will not impose this sanction if the claims raised by
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appellant clearly lack merit. See Hewitt v. State, 113 Nev. 387, 392, 936
P.2d 330, 333 (1997), overruled on other grounds by Martinez v. State, 115
Nev. 9, 11-12 & n.4, 974 P.2d 133, 134-35 & n.4 (1999). Because Krieger's
claims clearly lack merit, I agree that treating respondent's failure to file a
fast track statement as a confession of error is not appropriate.
Nevertheless, respondent's counsel's complete failure to file a fast track
response was a material violation of our procedural rules, see NRAP
3C(f)(1)(A) ("Within 20 days from the date a fast track statement is served,
the respondent shall serve and file a fast track response." (emphasis
added)), and for that reason I would impose a monetary sanction against
respondent's counsel, see NRAP 3C(n) (identifying the failure to file a fast
track response as a sanctionable action).
J.
Pickering
cc: Hon. Michael Montero, District Judge
Karla K. Butko
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
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