Nemcek (Mark) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MARK NEMCEK, No. 68919
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAY 09 2016
TV CLEk
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
guilty plea, of attempted sexual assault and luring children or mentally ill
persons with use of technology with the intent to engage in sexual
conduct. Eighth Judicial District Court, Clark County; Eric Johnson,
Judge.
Appellant contends that the district court abused its discretion
by declining to place him on probation as recommended by the Division of
Parole and Probation. He specifically contends that the district court
arbitrarily ignored the statutorily mandated psychosexual evaluation in
determining sentencing. We disagree.
We review a district court's sentencing decision for an abuse of
discretion. Parrish v. State, 116 Nev. 982, 989,12 P.3d 953, 957 (2000).
Appellant's sentence is within the statutory limits, see NRS 200.366(3)(b);
NRS 193.330(a)(1); NRS 201.560(4)(a), and it is within the district court's
discretion to impose a sentence different from that recommended by the
Division, Collins v. State, 88 Nev. 168, 171, 494 P.2d 956, 957 (1972).
Further, while the district court questioned the usefulness of psychosexual
evaluations, the court specifically said it had reviewed the psychosexual
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evaluation in this case and found it unpersuasive considering the nature
of the crime itself, the threat to the community, and appellant's lack of
success with previous counseling. See Silks v. State, 92 Nev. 91, 94, 545
P.2d 1159, 1161 (1976) (explaining that 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"); Martinez v. State, 114 Nev. 735, 738, 961 P.2d 143, 145
(1998) (providing that the sentencing judge has discretion "to consider a
wide, largely unlimited variety of information to insure that the
punishment fits not only the crime, but also the individual defendant").
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
J.
Saitta
J.
Pickering
cc: Hon. Eric Johnson, District Judge
Turco & Draskovich
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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