Gaon (Francis) v. Dist. Ct. (State) ( 2015 )

 offense for driving under the influence and his custody is based upon that
charge. Gaon fails to demonstrate that his present prosecution is a breach
of his 1985 plea agreement as he has provided no documentary proof that
a term of his 1985 plea agreement was that he could only be charged with
a felony for a subsequent offense for a period of only 7 years.'
More importantly, Gaon's ex post facto argument is without
merit. Although Gaon's 1985 felony conviction occurred before the 2005
enactment of the provision making a subsequent offense a felony
regardless of the timing, see 2005 Nev. Stat., ch. 193, § 3, at 607-08, 2 at the
time he committed the instant offense, reference to NRS 484C.410(1)
informed Gaon that he was subject to a felony prosecution for any driving-
under-the-influence offenses because of his prior felony convictions. See
Dixon v. State, 103 Nev. 272, 274, 737 P.2d 1162, 1164 (1987) (holding that
the third-offense felony provision was not an ex post facto law, despite the
fact that the prior convictions antedated enactment of the provision,
because the statute in effect at the time the defendant committed the
subsequent offense informed him of the penalty); see also Weaver v.
Graham, 450 U.S. 24, 30 (1981) (stating that the Ex Post Facto Clause
"forbids the imposition of punishment more severe than the punishment
assigned by law when the act to be punished occurred" (emphasis added));
1 Thedeclarations provided by Gaon merely indicate the advice given
in 1985, which was accurate given the law at the time of his prior offense,
see 1983 Nev. Stat., ch. 426, § 10, at 1070-71, and do not support an
argument that the plea agreement contained a term that any subsequent
felony prosecution was limited to 7 years.
Legislature made the amendment applicable to all offenses
2 The
committed before October 1, 2005. See 2005 Nev. Stat., ch. 193, § 14, at
617.
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United States v. Katuna, 192 F.3d 1188, 1199 (9th Cir. 1999) (providing
that recidivist statutes do not violate the Ex Post Facto Clause if the
recidivist statutes exist at the time of commission of the subsequent
offense). Accordingly, we
ORDER the petition DENIED.
Saitta
cc: Hon. Jennifer P. Togliatti, District Judge
Law Offices of John G. Watkins
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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