Hermansen (Branden) v. State ( 2013 )

 from the chaff and have extensive experience in sentencing, along with the
legal training necessary to determine an appropriate sentence."
(alteration in original) (quoting People v. Mockel, 276 Cal. Rptr. 559, 563
(Ct. App. 1990))); see also Norwood v. State, 112 Nev. 438, 440, 915 P.2d
277, 278 (1996) ("A sentencing court is privileged to consider facts and
circumstances which would clearly not be admissible at trial."). Notably,
the district court based its sentencing determination on Hermansen's prior
record, which included a conviction for firearm possession as a felon, and
the facts of the instant crime. The court stated that it considered the
impact of the crime on the victim and his family, but did not specifically
mention the scrapbook or the evidence presented therein.
Second, Hermansen contends that the district court erred in
admitting graphic photographs of the victim at sentencing. We discern no
abuse of discretion. See Sherman, 114 Nev. at 1012, 965 P.2d at 913 ("The
trial court's determination regarding the admissibility of evidence during
a sentencing hearing will not be disturbed on appeal absent an abuse of
discretion."). The photographs assisted the court by illustrating the
nature of the crime. See Martinez v. State, 114 Nev. 735, 738, 961 P.2d
143, 145 (1998) (providing that "the sentencing judge [may] consider a
wide, largely unlimited variety of information to insure that the
punishment fits not only the crime, but also the individual defendant").
Further, the record does not indicate that the photographs improperly
affected the district court's sentencing decision. See Randell, 109 Nev. at
7-8, 846 P.2d at 280.
Third, Hermansen argues that his sentence violates the
Eighth Amendment prohibition against cruel and unusual punishment
and is based on impalpable and highly suspect evidence. Specifically, he
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contends that the district court improperly based the sentence on
accusations concerning a stolen computer, a recording of a phone call from
jail, and improper argument from the State. He also asserts that the
district court failed to consider mitigation evidence. We disagree.
Hermansen's sentence of life with the possibility of parole after 10 years
for murder and sentence of 20 years with the possibility of parole after 8
years for the deadly weapon enhancement fall within the parameters
provided by relevant statutes, see NRS 200.030(5)(a) (category A felony
punishable by sentence of life with the possibility of parole after 10 years);
NRS 193.165(1) (authorizing sentence of 1-20 years for deadly weapon
enhancement), and the sentences imposed are not so unreasonably
disproportionate to the gravity of the offense as to shock the conscience,
see 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). Further, Hermansen has not demonstrated that the district
court relied on "impalpable or highly suspect evidence." Silks v. State, 92
Nev. 91, 94, 545 P.2d 1159, 1161 (1976). In imposing sentence, the district
court did not indicate that it considered Hermansen's phone call from jail
in determining his sentence. While the district court mentioned the
accusation regarding the stolen computer, about which the State
presented testimony during the hearing, it did not ground its sentencing
decision on those facts. The State's argument concerning the nature of the
shooting was proper based on the evidence before the district court and did
not amount to presentation of evidence. Lastly, the district court noted
the mitigating evidence but did not find it persuasive. Therefore, the
district court did not abuse its discretion in sentencing Hermansen. See
Randell, 109 Nev. at 8, 846 P.2d at 280.
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Having considered Hermansen's contentions and concluded
that they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Douglas
Saitta
cc: Hon. Jerome Polaha, District Judge
Washoe County Alternate Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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