Sangster (Brian) v. State ( 2013 )

 guilty while under the influence or unable to think clearly, and (3) there
were no other grounds for withdrawing the guilty plea. Conflict-free
counsel suggested that an evidentiary hearing could be conducted to
determine Sangster's and defense counsel's credibility. The district court
did not conduct an evidentiary hearing or make a ruling on whether
Sangster could withdraw his guilty plea. We note that throughout
Sangster's criminal proceeding, the district court was in a position to
evaluate both Sangster's and defense counsel's credibility; Sangster
acknowledged in his written plea agreement that he was not intoxicated
and defense counsel certified that Sangster was not intoxicated; the
district court was in a position to observe whether Sangster was
intoxicated during the plea canvass; and neither conflict-free counsel nor
defense counsel requested an evidentiary hearing. Under these
circumstances, we conclude that Sangster has not demonstrated that the
district court abused its discretion. See generally Crawford v. State, 117
Nev. 718, 721, 30 P.3d 1123, 1125 (2001) (reviewing a district court's
decision to grant or deny a presentence motion to withdraw guilty plea for
abuse of discretion).
Second, Sangster contends the district court erred by imposing
a sentence under the habitual criminal statute that is cruel and unusual
because it is grossly disproportionate to his crime. Sangster has not
demonstrated that the habitual criminal punishment statute is
unconstitutional, see Nelson v. State, 123 Nev. 534, 540, 170 P.3d 517, 522
(2007); Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996), his
sentence falls within the parameters of that statute, see NRS
207.010(1)(a), and we are not convinced that the sentence is so grossly
disproportionate to the gravity of the offense and Sangster's long history of
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felony recidivism as to shock the conscience, see Ewing v. California, 538
U.S. 11, 29 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion); Blume, 112 Nev. at 475, 915 P.2d at
284). Accordingly, we conclude that the sentence does not violate the
constitutional proscriptions against cruel and unusual punishment.
Having concluded that Sangster is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
, J.
Douglas Saitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
The Kice Law Group, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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