Yarell (Marvin) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MARVIN YARELL A/K/A MARVIN No. 66649
JOHNSON,
Appellant,
vs. FILED
THE STATE OF NEVADA, MAR 0 1 2016
Respondent.
TRACE K. LINDEMAN
CLERK F S PREME COURT
ORDER OF AFFIRMANCE BY •
DEPUTY CLERK
This is an appeal from a judgment of conviction, pursuant to a
guilty plea, of two counts of possession of a controlled substance. Eighth
Judicial District Court, Clark County; Elissa F. Cadish, Judge.
In 2014, Las Vegas Metropolitan Police Department officers
conducted a traffic stop of a vehicle driven by appellant Marvin Yarell.
The officers found methamphetamine and cocaine in Yarell's possession.
Yarell was subsequently arrested and arraigned in district court, where he
pleaded guilty to two counts of possession of a controlled substance.
Approximately two weeks later, the State filed a notice of intent to seek
punishment as a habitual criminal. The State sought to adjudicate Yarell
as a habitual criminal based on his six prior felonies, which spanned from
1988 to 2008 in California and Nevada.
Yarell filed a motion to strike the notice, arguing that the
notice was untimely because the State failed to file it before he entered his
guilty plea. The district court denied the motion. Yarell then requested a
continuance of his sentencing to determine whether he wanted to
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withdraw his plea. The court agreed, taking the sentencing off calendar
and scheduling a status check. At the status check, Yarell confirmed that
he did not wish to withdraw his plea and instead wanted to proceed with
sentencing.
On appeal, Yarell argues that the State was precluded from
filing its notice of intent to seek punishment as a habitual criminal
because he already entered a plea of guilty. According to Yarell, NRS
207.016 required the State to file its notice not less than two days before
he entered his guilty plea.
"Statutory interpretation is a question of law," and this court
reviews the district court's interpretation of a statute de novo. State v.
Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). "When a statute
is plain and unambiguous, this court will give that language its ordinary
meaning and not go beyond it." State v. Allen, 119 Nev. 166, 170, 69 P.3d
232, 235 (2003).
NRS 207.016(2) provides:
If a count pursuant to NRS 207.010, 207.012
or 207.014 is included in an information charging
the primary offense, each previous conviction must
be alleged in the accusatory pleading, but no such
conviction may be alluded to on trial of the
primary offense, nor may any allegation of the
conviction be read in the presence of a jury trying
the offense or a grand jury considering an
indictment for the offense. A count pursuant to
NRS 207.010, 207.012 or 207.014 may be filed
separately from the indictment or information
charging the primary offense, but if it is so filed,
the count pursuant to NRS 207.010, 207.012 or
207.014 must be filed not less than 2 days before
the start of the trial on the primary offense, unless
an agreement of the parties provides otherwise or
the court for good cause shown makes an order
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extending the time. For good cause shown, the
prosecution may supplement or amend a count
pursuant to NRS 207.010, 207.012 or 207.014 at
any time before the sentence is imposed, but if
such a supplement or amendment is filed, the
sentence must not be imposed, or the hearing
required by subsection 3 held, until 15 days after
the separate filing.
This court has previously noted that NRS 207.016(2) allows "the habitual
criminal to be added right before trial or at any time before [the] sentence
is imposed, so long as there is sufficient time between [the] addition and
sentence." LaChance v. State, 130 Nev., Adv. Op. 29, 321 P.3d 919, 928
(2014).
Here, NRS 207.016(2) clearly provides that the notice "must
be filed not less than 2 days before the start of the trial on the primary
offense." The provision does not encompass cases where the defendant
enters a guilty plea. Because this statute is plain and unambiguous, we
give that language its ordinary meaning and do not resort to the rules of
construction. We conclude that the district court did not err in its
interpretation of NRS 207.016(2). 1
'On appeal, Yarell also argues that the district court erred in
sentencing him as a habitual criminal because his prior felony convictions
were old, stale, and trivial. We conclude that the district court did not
abuse its discretion in adjudicating Yarell as a habitual criminal. See
Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998) ("The
sentencing judge is accorded wide discretion in imposing a sentence.");
Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992) ("NRS
207.010 makes no special allowance for non-violent crimes or for the
remoteness of convictions; instead, these are considerations within the
discretion of the district court.").
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Accordingly, we
ORDER the judgment of conviction AFFIRMED.
C.J.
Parraguirre
----30L4- J.
Douglas
, J.
cc: Hon. Elissa F. Cadish, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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