Oliver (Vaneshia) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
VANESHIA OLIVER, A/K/A VENESHIA No. 83276
LANETTE OLIVER,
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Res ondent.
AUG 1 1 2022
ELIZABETI-1 A. BROWN
CLERKpF p4PREME COURT
BY
DEPUlY CLERK
ORDER AFFIRMING IN PART,
VACATING IN PART AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of robbery, coercion, possession of a debit or credit card without
cardholder's consent, possession of burglary tools, two counts of fraudulent
use of a credit or debit card, three counts of burglary of a business, four
counts of theft, four counts of attempted fraudulent use of a credit or debit
card, five counts of conspiracy to commit burglary, five counts of conspiracy
to commit larceny, five counts of residential burglary, and five counts of
invasion of the home.' Eighth Judicial District Court, Clark County;
Michael Villani, Judge.
A jury found appellant Vaneshia Oliver and a codefendant
guilty of perpetrating a series of burglaries that involved Oliver and the
codefendant prying open hotel room doors while the guests were away and
stealing various items, including electronics and credit cards. First, Oliver
'Pursuant to NRAP 34(0(4 we have determined that oral argument
is not warranted.
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argues that she is entitled to the guilty plea agreement that the State
withdrew after her codefendant rejected the package plea offer. We
disagree because a defendant has no right to a plea bargain, and the
prosecutor is not obliged to negotiate a case if she prefers to go to trial. See
Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The State offered a guilty
plea agreement that was "contingent upon both defendants accepting the
negotiation." Oliver's codefendant chose to defend against the criminal
charges at trial, and the State withdrew its offer. Oliver's argument that a
conditional guilty plea offer based on the decision of a third party is
fundamentally unfair is without merit as the weight of authority refutes her
contention. See, e.g., United States v. Williams, 827 F.3d 1134, 1164-65
(D.C. Cir. 2016) (explaining that "a plea deal contingent on a co-defendant's
guilty plea" did not violate defendant's due process rights); United States v.
Gonzalez-Vazquez, 219 F.3d 37, 43 (1st Cir. 2000) (explaining that a
"package deal" plea offer would not violate defendant's constitutional
rights); United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir. 1992)
("Package deal plea bargains, in which a prosecutor makes an agreement
with one defendant contingent upon a co-defendant also pleading guilty, are
permissible provided that the defendant's decision to forego a trial is
otherwise voluntary."), superseded by statute for other reasons as stated in
United States v. Corrado, 53 F.3d 620, 624 (3d Cir. 1995); United States v.
Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (declining to declare 'package-
deal' plea bargains" per se impermissible). Therefore, we conclude that
Oliver has not shown she is entitled to relief.
Next, Oliver argues that the district court erred in denying her
motion to sever her trial from her codefendant's because her codefendant's
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counsel acted as a "second prosecutor" against her during closing argument.
After reviewing the record, we disagree. A district court has discretion to
sever a trial and its decision will not be reversed on appeal unless the
appellant shows that the court abused its discretion. See Marshall v. State,
118 Nev. 642, 646-47, 56 P.3d 376, 379 (2002). "[M]isjoinder requires
reversal only if it has a substantial and injurious effect on the verdict." Id.
at 647, 56 P.3d at 379. While Oliver points to codefendant's counsel telling
the jury that surveillance video depicted Oliver using stolen credit cards,
counsel qualified the comment by stating, "or whoever it was."
Furthermore, Oliver's codefendant did not testify or present evidence to
exonerate himself and inculpate Oliver in any of the other crimes. Thus, to
the extent that Oliver and her codefendant presented antagonistic defenses,
she has not shown that the joint trial had a substantial and injurious effect
on the verdict. See id. at 648, 56 P.3d at 379 (explaining that "antagonistic
defenses are a relevant consideration but not, in themselves, sufficient
grounds for concluding that joinder of defendants is prejudicial").
Accordingly, we conclude that the district court did not abuse its discretion
in denying Oliver's motion to sever.2
Next, Oliver argues that her sentence constitutes cruel and
unusual punishrnent because it exceeds the sentence conterriplated in the
2 Likewise, Oliver has not shown that the district court abused its
discretion in not granting her related request for a mistrial based on the
argument of codefendant's counsel. See Rudin v. State, 120 Nev. 121, 142,
86 P.3d 572, 586 (2004) ("The trial court has discretion to determine
whether a mistrial is warranted, and its judgment will not be overturned
absent an abuse of discretion.").
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withdrawn guilty plea agreement. The district court has wide discretion in
its sentencing decision. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376,
1379 (1987). Regardless of its severity, "[a] sentence 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) (internal quotation marks
omitted).
Here, Oliver was sentenced for victimizing multiple individuals
and businesses. The parties agree that Oliver's sentence for coercion is
outside the statutory range and thus illegal. See NRS 207.190(2)(a). We
agree and therefore vacate the sentence for coercion and remand to the
district court for resentencing and to recalculate the aggregate sentence.3
The other sentences imposed are within the parameters provided by the
relevant statutes. See NRS 193.130; NRS 193.140; NRS 193.153; NRS
199.480; NRS 200.380(2); NRS 205.060(2)(c)-(d); NRS 205.067(2); NRS
205.080; NRS 205.0835; NRS 205.220(1); NRS 205.690; NRS 205.760(1).
Oliver neither alleges that those statutes are unconstitutional, nor has she
shown that the sentences were disproportionate to the crimes committed.
Therefore, Oliver has not shown that the sentences constitute cruel and
unusual punishment.
31n entering an amended judgment of conviction, the district court
must also correct clerical errors that omitted counts 1, 2, 9, 10, 19, 20, 26,
27, 31, 32, and 37 from the charges for which the jury found Oliver guilty.
Additionally, count 36 must be corrected to reflect that the jury found Oliver
guilty of violating NRS 205.690 not NRS 205.465.
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Finally, Oliver argues that cumulative error warrants relief.
We disagree because Oliver has shown only one error in her sentence; thus,
there is nothing to cumulate. See Lipsitz v. State, 135 Nev. 131, 139 n.2,
442 P.3d 138, 145 n.2 (2019) (concluding that there were no errors to
cumulate when the court found only a single error). Accordingly, we
ORDER the judgment of conviction AFFIRMED IN PART AND
VACATED IN PART AND REMAND this matter to the district court for the
entry of an amended judgment of conviction consistent with this order.4
Parraguirre
r..
Silver
cc: Chief Judge, Eighth Judicial District Court
Department 17, Eighth Judicial District Court
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
The Honorable Mark Gibbons, Senior Justice, participated in the
4
decision of this matter under a general order of assignment.
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