Martin (Shanell) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SHANELL CATHRINE MARTIN, No. 83665
Appellant,
vs. FIL
THE STATE OF NEVADA,
Respondent. OCT 03 2022
ELIZABETH k BROWN
CLERK9FaJPREME COURT
BY D. Y
1?'- ;tit;t1.-(114k
DEP111-
ORDER VACATING AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
guilty plea, of possession of a controlled substance. Fourth Judicial District
Court, Elko County; Kriston N. Hill, Judge.
Appellant Shanell Cathrine Martin argues that the district
court erroneously adjudicated her guilty and sentenced her to prison. She
argues that this was her second category E felony conviction for possession
of a contrölled substance, see NRS 453.336(2)(a), so deferral of judgment
was mandatory under NRS 176.211(3)(a)(1). Martin contends that she
consented to deferral at the sentencing hearing, and the written plea
agreement stated that deferral of judgment was• mandatory, so the district
court lacked discretion to deny deferment. We agree.
Because this case invokes a question of statutory
interpretation, our review is de novo. See State v. Lucero, 127 Nev. 92, 95,
249 P.3d 1226, 1228 (2011). We recently held that the plain language of
•NRS 453.336(2)(a) and cross-referencing NRS 176.211(3)(a) require
judgment deferral for first or second offenses under NRS 453.336(2)(a). See
Locker v. State, 138 Nev., Adv. Op. 62, P.3d (2022) (interpreting NRS
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176.211(3)(a)(1) and NRS 453.336(2)(a)). Because this was Martin's second
conviction for possession of a controlled substance, and she consented to
deferral of the judgment,1 the district court was required to defer entry of
her judgment.2 Instead, the district court entered a judgment of conviction
•and sentenced Martin to prison. We conclude that the district court's
decision to do so was erroneous.
Insofar as the State argues that Martin's sentence was proper,
we are unpersuaded. The State contends—for the first time on appeal—
that Martin had at least three convictions for possession of a controlled
substance and, therefore, Martin's sentence was not erroneous. Different
subsections of NRS 453.336 prescribe varying punishment depending on the
number of previous convictions a person has had. Compare NRS
453.336(2)(a) (listing a first or second offense as a category E felony), with
NRS 453.336(2)(b) (listing a third or subsequent offense as a category D
felony). In this case, the State charged Martin with the category E felony,
NRS 453.336(2)(a), which specifically concerns a first or second offense
possession of a controlled substance. Martin pleaded guilty to a category E
felony, NRS 453.336(2)(a), and not a category D felony, NRS 453.336(2)(b).
Thus, her prison sentence cannot be affirmed by applying NRS
'Martin consented when she requested deferral of judgment at her
sentencing hearing. Moreover, the plea agreement stated that deferral of
judgment was mandatory for a first or second offense under NRS
453.336(2)(a).
2We reject the State's argument that NRS 176.211(3)(a)(1) applies
only if the defendant pleads guilty without a plea agreement based on the
language in the last sentence of NRS 176.211(1). We recently held that this
language does not apply in cases covered by NRS 176.211(3)(a)(1). See
Locher, 138 Nev., Adv. Op. 62, P.3d at .
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453.336(2)(b). Further, the only proof of Martin's prior convictions in the
record is in the presentence investigation report, which we have held "is not
prima facie evidence of a prior felony conviction." Hudson v. Warden, 117
Nev. 387, 395, 22 P.3d 1154, 1159 (2001). In sum, this argument is
meritless.
We recognize that the district court may have been under the
impression that NRS 176A.100(1)(b), a discretionary probation statute,
applied to Martin's sentencing. However, given the 2019 amendments to
NRS 176.211(3)(a)(1), see 2019 Nev. Stat., ch. 633, § 19, at 4389, and NRS
453.336(2)(a), see 2019 Nev. Stat., ch. 633, § 113, at 4470, the district court
lacked discretion to sentence Martin to prison.3 Based on the foregoing,4 we
ORDER the judgment of conviction VACATED AND REMAND
this matter to the district court for proceedings consistent with this order.5
, J.
Cadish
J.
3The 2021 amendment to NRS 453.336(2) added a reference to NRS
453.336(5), which governs possession of marijuana. See 2021 Nev. Stat., ch.
389, § 32, at 2442-43. This amendment does not affect our analysis because
Martin was not charged with possession of marijuana.
4Martin also argues that the State breached the plea agreement. In
light of the disposition of this appeal, we need not reach this issue.
5Due to the retirement of the Honorable Abbi Silver, she did not
participate in the decision in this matter.
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cc: Hon. Kriston N. Hill, District Judge
Ben Gaumond Law Firm, PLLC
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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