Stockmeier v. Nev. Bd. of Parole Comm'rs ( 2014 )

 parole is without merit. Under NRS 213.1099(2)(e), the Parole Board is
required to consider any documents or statements from the victim. See
also NRS 213.005(3)(c) (defining victim to include the victim's immediate
family). This is true even if the statements concern allegations for which
the appellant was not charged with or was not found guilty. See Gometz v.
U.S. Parole Comm'n, 294 F.3d 1256, 1261 (10th Cir. 2002) (recognizing
parole board's ability to "make independent findings of criminal conduct
and even consider unadjudicated offenses that are connected to the offense
of conviction"); Kajevic v. Baer, 588 F. Supp. 1061, 1065 (E.D. Mich. 1984)
("The Parole Commission is not restricted to considering information only
about the offense for which a prisoner was formally convicted, but may
also consider information about the prisoner's total offense." (citations
omitted)); State ex rel. Lipschutz v. Shoemaker, 551 N.E.2d 160, 162 (Ohio
1990) (affirming parole board's consideration of unadjudicated illegal
conduct to determine inmate's pattern of criminal behavior).'
Appellant's next argument is that by denying appellant parole
based on unadjudicated charges, the Parole Board was infriniging on the
powers of the judicial branch and violated separation of powers. See Nev.
Const. art. 3, § 1 (separating Nevada's government into three separate
branches). While the Parole Board is a part of the executive branch, it
made no attempt to lengthen the sentence imposed on appellant by the
district court, and thus, did not violate separation of powers. See Nev.
lAppellant also argues that the district court abused its discretion in
denying the writ due to appellant's failure to cite Nevada caselaw on
point. A review of the district court order, however, shows that the district
court's denial was not premised on a failure to cite caselaw to support his
claim, but simply stated that the caselaw appellant cited did not support
his proposition. Thus, this argument is also without merit.
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Dept. of Prisons v. Kimsey, 109 Nev. 519, 523, 853 P.2d 109, 111-12 (1993)
(recognizing that the parole board is part of the executive branch); Artez v.
Mulcrone, 673 F.2d 1169, 1170 (10th Cir. 1982) ("In granting or denying
parole, the Parole Commission does not modify a trial court's sentence, but
merely determines whether the individual will serve the sentence inside or
outside the prison walls."); Smaldone v. United States, 458 F. Supp. 1000,
1003 (D. Kan. 1978) (refusing to find a violation of separation of powers
because "a decision to grant or deny parole does not modify or otherwise
alter a prisoner's sentence"); Simmons v. Commonwealth of Ky., 232
S.W.3d 531, 535 (Ky. Ct. App. 2007) (recognizing parole board as part of
the executive branch and holding that denial of parole did not usurp
judicial authority); Padilla v. Utah Bd. of Pardons & Parole, 947 p.2d 664,
669 (Utah 1997) (finding no violation of separation of powers because "the
Board merely exercises its . . . authority to commute or terminate an
indeterminate sentence").
For the reasons discussed above, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
cc: Hon. Michael Montero, District Judge
Robert Leslie Stockmeier
Attorney General/Dep't of Public Safety/Carson City
Pershing County Clerk
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