Cibulka (James) v. State ( 2013 )

 deference to the court's factual findings if supported by substantial
evidence and not clearly erroneous, but review the court's application of
the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
The district court found that Cibulka was informed in the
guilty plea agreement that if he was charged with any new offense,
excluding minor traffic violations, the State would be free to argue for any
legal sentence. At the plea canvass, Cibulka acknowledged that his
counsel reviewed the plea agreement with him and he had read and
understood the plea agreement. Cibulka conceded below that he only
wanted to withdraw his plea because the State had regained the right to
argue for a prison term at sentencing and he wanted the State to have to
go through the expense of a trial if he was going to go to prison for $10
worth of methamphetamine. The district court determined that Cibulka
failed to demonstrate that his counsel was ineffective, see Hill v. Lockhart,
474 U.S. 52, 58-59 (1985) (setting forth two-part test for proving
ineffective assistance of counsel based on a judgment of conviction entered
pursuant to a guilty plea); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d
1102, 1107 (1996), or that his plea was invalid, see Molina, 120 Nev. at
191, 87 P.3d at 538. We conclude that the district court did not err by
determining that counsel was not ineffective and did not abuse its
discretion by denying Cibulka's motion to withdraw his guilty plea.
Cibulka also claims that the district court abused its
discretion at sentencing and imposed a sentence constituting cruel and
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unusual punishment. "The sentencing judge has wide discretion in
imposing a sentence." Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376,
1379 (1987). This court will refrain from interfering with the sentence
imposed "[s] o long as the record does not demonstrate prejudice resulting
from consideration of information or 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 that is 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) (explaining that the Eighth Amendment does not
require strict proportionality between crime and sentence; it forbids only
an extreme sentence that is grossly disproportionate to the crime).
Cibulka's 14- to 48-month sentence is within the parameters
provided by the relevant statutes, see NRS 193.130(2)(e) (category E felony
punishable by a term of 1 to 4 years); NRS 193.330(1)(a)(6) (attempt to
commit a category E felony is punishable as a category E felony); NRS
453.336(2)(a), and he does not allege that the statutes are
unconstitutional. He also does not allege that the district court relied on
impalpable or highly suspect evidence. Having considered the sentence
and the crime, we are not convinced that the sentence imposed is so
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grossly disproportionate to the crime as to constitute cruel and unusual
punishment or that the district court abused its discretion when imposing
the sentence.
Having considered Cibulka's claims and determined they lack
merit, we
ORDER the j • en of conviction AFFIRMED. 2
IP
Gibbons
J.
Douglas
cc: Hon. James M. Bixler, District Judge
Brent D. Percival
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 The fast track statement does not comply with NRAP 3C(h)(1) and
NRAP 32(a)(4) because it does not have 1-inch margins on all four sides
and it does not appear that the text is double-spaced. It also appears that
the fast track response does not comply with NRAP 3C(h)(1) and NRAP
32(a)(4) because it appears that the text is not double-spaced. We caution
counsel for the parties that future failure to comply with formatting
requirements when filing briefs with this court may result in the
imposition of sanctions. See NRAP 3C(n); NRAP 32(e).
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