State v. Dist. Ct. Barreras (Jose) ( 2013 )

 petitioner has a plain, speedy and adequate remedy in the ordinary course
of law. NRS 34.170. Further, mandamus is an extraordinary remedy, and
it is within the discretion of this court to determine if a petition will be
considered. See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455,
652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. v.
Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). Here, petitioner
has no adequate remedy in the ordinary course of the law. See NRS
177.015(3) (only the defendant may appeal from the final judgment in a
criminal case). We elect to exercise our discretion and consider the
petition.
Real party in interest Jose Barreras was charged with
burglary and grand larceny auto. He agreed to plead guilty to attempted
burglary. The district court accepted the guilty plea and sentenced
Barreras to prison for a minimum term of 12 months and a maximum
term of 32 months, suspended the sentence, and placed Barreras on
probation for three years. The judgment was filed on September 9, 2011.
More than one year later, Barreras filed a motion to withdraw the plea
and vacate the sentence, alleging that counsel failed to correctly advise
him regarding the immigration consequences of his guilty plea. See
Padilla v. Kentucky, 559 U.S. 356 (2010). The motion primarily sought to
withdraw the guilty plea and vacate the judgment of conviction, but it also
summarily suggested that the court should modify the sentence to 364
days or less. The State opposed the motion. Without making any specific
findings on the two prongs of the ineffective-assistance claim, see id. at
366-69, the district court orally denied the motion to withdraw the plea
but agreed to modify the sentence as "a good and just result in this
particular instance." The court subsequently entered the amended
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judgment of conviction. The amended judgment of conviction notes the
original sentence and probationary term and then orders the "sentence
MODIFIED to THREE HUNDRED SIXTY FOUR (364) DAYS."
Petitioner asserts that the district court exceeded its authority
when it modified the sentence to impose a minimum term less than the
penalty set by the Legislature. We agree. "The power to define crimes
and penalties lies exclusively in the legislature." Lapinski v. State, 84
Nev. 611, 613, 446 P.2d 645, 646 (1968). Although the district court has
broad discretion in its sentencing decision, see, e.g., Houk v. State, 103
Nev. 659, 664, 747 P.2d 1376, 1379 (1987), so long as the statute fixing
punishment is constitutional, the district court must impose a sentence
that is within the statutory limits, see Mendoza-Lobos v. State, 125 Nev.
634, 639-40, 218 P.3d 501, 505 (2009) ("[I]t is the function of the judiciary
to decide what penalty, within the range set by the Legislature, if any, to
impose on an individual defendant"); Schmidt v. State, 94 Nev. 665, 668,
584 P.2d 695, 697 (1978) (observing that when determining whether a
sentence is cruel and unusual, "the courts are not to encroach upon [the
Legislature's] domain [to determine punishments] lightly"). And the
district court's limited authority to modify a sentence based on a mistake
or misapprehension about the defendant's criminal record that worked to
the defendant's detriment, see Edwards v. State, 112 Nev. 704, 708, 918
P.2d 321, 324 (1996), does not allow the district court to invade the
legislative function and impose a sentence less than that authorized by
statute. See generally NRS 193.130(1) (providing that except for category
A felonies and as otherwise provided by specific statute, "a person
convicted of a felony shall be sentenced to a minimum term and a
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maximum term of imprisonment which must be within the limits
prescribed by the applicable statute" (emphasis added)).
The Legislature has determined that a person, like Barreras,
who is convicted of attempted burglary must be sentenced to prison "for a
minimum term of not less than 1 year and a maximum term of not more
than 5 years." NRS 193.130(2)(c) (emphasis added) (setting forth
punishment for category C felony); see also NRS 205.060(2) (burglary is a
category B felony with a sentence of 1 to 10 years); NRS 193.330(1)(a)(3)
(attempt to commit a category B felony for which the maximum term of
imprisonment is 10 years or less is a category C felony and shall be
punished as provided in NRS 193.130). When the district court modified
the sentence to impose a minimum term of less than 1 year (364 days), it
exceeded its judicial function and encroached upon the Legislature's
domain. 2 Barreras offered no authority to support his representation that
the district court could modify the sentence in this fashion, and the district
court referred to none. We conclude that the district court manifestly
abused its discretion in modifying the sentence to impose a minimum
sentence that is less than the sentence authorized by statute for
attempted burglary. See State v. Eighth Judicial Dist. Court (Armstrong),
127 Nev. 267 P.3d 777, 780 (2011) (defining manifest abuse of
2 The amended judgment also seemingly eliminates the maximum
term. To the extent that it did so, this also violated the district court's
sentencing authority as a maximum term is required under NRS
193.130(2)(c). See NRS 193.130(1) (providing that with specified
exceptions not applicable here, a person convicted of a felony must be
sentenced to a minimum term and a maximum term of imprisonment).
4
discretion as clearly erroneous interpretation or application of a law or
rule). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate the amended judgment of conviction. 3
Gibbons
J.
Douglas
cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney General/Carson City
Clark County District Attorney
Driggs Law Group
Eighth District Court Clerk
3 If the district court determines that Barreras has demonstrated
both prongs of his ineffective-assistance claim under Padilla, the
appropriate remedy is to grant his motion and allow him to withdraw his
guilty plea and face the original charges. We express no opinion on the
merits of Barreras' ineffective-assistance claim.
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