Delapinia (Ryan) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
RYAN LOPAKA DELAPINIA, No. 68339
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUN 1 7 2016
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
guilty plea, of one count each of sexual assault with the use of a deadly
weapon, first-degree kidnapping with the use of a deadly weapon,
burglary, and robbery with the use of a deadly weapon. Eighth Judicial
District Court, Clark County; Eric Johnson, Judge. The district court
sentenced appellant Ryan Lopaka Delapinia to a total aggregate sentence
of life in prison with the possibility of parole after 43 years. Delapinia
challenges the sentence imposed by the district court on two grounds.'
"Delapinia asserts that cumulative errors "in this trial violated [his]
right to a fair trial." There was no trial in this case; Delapinia pleaded
guilty. So there are no trial errors to cumulate for purposes of reversing
the judgment of conviction. And, there are not multiple sentencing errors
to cumulate. We therefore reject Delapinia's cumulative-error claim.
SUPREME COURT
OF
NEVADA
0) 1947A -PoS1
First, Delapinia argues that he is entitled to a new sentencing
hearing on the weapon enhancements because the district court failed to
articulate separate and specific findings to support the sentences imposed
for those enhancements, as required by NRS 193.165(1) and Mendoza-
Lobos v. State, 125 Nev. 634, 218 P.3d 501 (2009). Because Delapinia
failed to object below, we review for plain error, meaning that Delapinia
must show that the error is plain from the record and affected his
"substantial rights, by causing 'actual prejudice or a miscarriage of
justice." Mendoza-Lobos, 125 Nev. at 644, 218 P.3d at 507 (quoting
Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (quoting
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003))). Although the
record shows that the district court heard argument, testimony, and
evidence relevant to the factors set forth in• NRS 193.165(1)(a)-(e), the
record clearly shows that the district court did not comply with this court's
directive in Mendoza-Lobos to "articulate findings on the record, for each
enumerated factor. .. [and] for each enhancement," 125 Nev. at 644-45,
218 P.3d at 508. Having reviewed the record and the parties' arguments,
we cannot say that the district court's failure to make the required
findings on the record had no bearing on its sentencing decision as to the
weapon enhancements. Cf id. at 644, 218 P.3d at 508. We therefore
conclude that the district court's omission prejudiced Delapinia with
respect to the sentences on the weapon enhancements.
Second, Delapinia argues that the sentences constitute cruel
and unusual punishment in violation of the Nevada Constitution and the
United States Constitution. Because we reverse and remand as to the
sentences for the weapon enhancements, we consider this argument only
SUPREME COURT
OF
NEVADA
2
(0) I 947A ein
in relation to the other sentences. 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 Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22
(1979)); see also Harmelin Ti. Michigan, 501 U.S. 957, 1000-01 (1991)
(plurality opinion) (explaining that Eighth Amendment does not require
strict proportionality between crime and sentence; it forbids only an
extreme sentence that is grossly disproportionate to the crime). Delapinia
does not allege that the sentencing statutes are unconstitutional, and the
sentences imposed in this case are within the parameters provided by the
relevant statutes, NRS 200.320(2) (providing for sentence of life with the
possibility of parole after 5 years or definite term of 5-15 years for first-
degree kidnapping with no substantial bodily harm to the victim); NRS
200.366(2)(b) (providing for sentence of life with the possibility of parole
after 10 years for sexual assault with no substantial bodily harm to the
victim); NRS 200.380(2) (providing for sentence of 2 to 15 years for
robbery); NRS 205.060(2) (providing for sentence of 1 to 10 years for
burglary). Considering the circumstances of the crimes, particularly that
Delapinia kidnapped a 22-year-old woman who was out for a run, robbed
her, forced her to commit fellatio on him, and threatened her while
brandishing a weapon, we are not convinced that the sentences imposed
are so grossly disproportionate to those crimes as to constitute cruel and
unusual punishment.
SUPREME COURT
OF
NEVADA
3
(0) I U47A
Having considered Delapinia's claims and concluded that he is
entitled to relief on the sentences for the weapon enhancements, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order. 2
J.
a
Douglas
kilarzetv j.
Cherry
GIBBONS, J., concurring and dissenting:
I agree that the cruel-and-unusual-punishment challenge
lacks merit. I disagree, however, that the district court's failure to
articulate findings for the factors relevant to the weapon enhancement
sentences warrants reversal. In my opinion the omission did not cause
any prejudice or a miscarriage of justice. I therefore would affirm the
judgment of conviction.
Gibbons
2We further direct that this matter be assigned to a different district
court judge for resentencing on the weapon enhancements.
SUPREME COURT
OF
NEVADA
4
(0) 1947.4 sexu.
cc: Chief Judge, Eighth Judicial District Court
Hon. Eric Johnson, District Judge
Eric G. Jorgenson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
JO) 1917A