Garcia (Ubaldo) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
UBALDO SALDANA GARCIA, No. 83971
Appellant,
VS.
THE STATE OF NEVADA,
NOV 1 6 2022
Respondent.
ELI I3ETH A. OWN
LERK COURT
ORDER OF AFFIRMANCE a
LERK
This is an appeal from an amended judgment of conviction.
Eighth Judicial Distriet Court, Clark County; Ronald J. Israel, Judge.'
On March 11, 2013, the district court convicted appellant of 13
counts of sexual assault on a child under the age of 14 years and 14 counts
of lewdness with a child under the age of 14 years. The district court
sentenced appellant to serve two consecutive terms of life with the
possibility of parole after 35 years and various concurrent terms. This
court affirmed the judgment of conviction. Garcia v. State, No. 62921,
2015 WL 918769 (Nev. Mar. 2, 2015) (Order of Affirmance). The Nevada
Court of Appeals affirmed the denial of appellant's postconviction petition
for a writ of habeas corpus. Saldana-Garcia v. State, Docket No. 74376- •
COA, 2018 WL 6433085 (Nev. Ct. App. Dec. 4, 2018) (Order of
Affirmance).
On October 13, 2021, the State filed a motion to amend the
judgment of conviction to vacate the convictions and corresponding
concurrent sentences imposed for the lewdness counts because they were
pleaded as alternatives to the sexual assault counts. At a hearing on the
motion, appellant agreed that the lewdness counts should be vacated, but
he argued that the remedy should also include a new sentencing hearing.
SUPREME COURT 'Pursuant to NRAP 34(f)(1), we have determined that oral argument
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is not warranted in this appeal.
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The district court rejected appellant's request and subsequently vacated
the lewdness convictions and dismissed those counts in an amended
judgment of conviction. This appeal follows.
Appellant argues that the district court should have held a
new sentencing hearing because the redundant lewdness convictions likely
influenced the overall sentence. Appellant further notes that the
sentencing judge did not preside over the trial and therefore did not know
the details about the case, and he argues that the State made inaccurate
statements at sentencing about the victim's purported recantation.
The district court generally has wide discretion in sentencing
matters, and "absent an abuse of discretion, the district court's
determination will not be disturbed on appeal." Brake v. State, 113 Nev.
579, 584, 939 P.2d 1029, 1033 (1997) (quoting Randell v. State, 109 Nev. 5,
8, 846 P.2d 278, 280 (1993)). Having considered the record and the
parties' briefs, we conclude that the district court did not abuse its
discretion in declining to conduct a new sentencing hearing.2 Appellant
has not cited relevant authority or provided a cogent argument that a new
sentencing is required in the circunistances presented here. See Maresca
v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (recognizing "[i]t is
appellant's responsibility to present relevant authority and cogent
argument"). On multiple occasions, we have vacated or reversed
redundant convictions and related sentences without directing the district
court to conduct a new sentencing hearing. See, e.g., Shue v. State, 133
Nev. 798, 809, 407 P.3d 332, 340-41 (2017) (vacating redundant
2 We reject the State's argument that the denial of appellant's
request for a new sentencing hearing is not cognizable in this appeal given
that decision relates to proceedings on the motion to amend the judgment
of conviction. See NRS 177.045 (providing that intermediate decisions of
SUPREME COURT the district court may be raised in an appeal from a final judgment).
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convictions and directing the district court to enter an amended judgment
of conviction); Byars v. State, 130 Nev. 848, 866, 336 P.3d 939, 951 (2014)
(reversing a conviction where the district court improperly adjudicated
appellant guilty of an offense that the parties agreed had merged with
another offense and requiring the district court to correct the judgment of
conviction); Braunstein v. State, 118 Nev. 68, 78-79, 40 P.3d 413, 420-21
(2002) (concluding the district court properly struck convictions for
lewdness as lewdness and sexual assault are mutually exclusive offenses
when involving the same conduct); Dossey v. State, 114 Nev. 904, 910, 964
P.2d 782, 785 (1998) (vacating redundant convictions and sentences). And
appellant's arguments about his counsel's performance and the
prosecutor's arguments at the sentencing hearing are not properly raised
in this appeal. See Jackson v. State, 133 Nev. 880, 881-82, 410 P.3d 1004,
1006 (Ct. App. 2017) ("[W]e conclude that in an appeal taken from an
amended judgment of conviction, the appellant may only raise challenges
that arise from the amendments made to the original judgment of
conviction."). But even if we considered those arguments in the context of
determining whether a new sentencing hearing is required because of the
combined prejudicial effect of the redundant lewdness convictions and
allegedly improper arguments at the sentencing hearing, appellant has
not demonstrated that the sentencing judge considered improper
arguments or impalpable or highly suspect evidence in imposing
consecutive sentences. See generally Echeverria v. State, 119 Nev. 41, 44,
62 P.3d 743, 745 (2003) (requiring a new sentencing hearing in front of a
different sentencing judge when the State breaches the plea agreement);
Brake, 113 Nev. at 585, 939 P.2d at 1033 (requiring a new sentencing
hearing when the district court improperly relied on the defendant's
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refusal to admit guilt and show remorse); Norwood v. State, 112 Nev. 438,
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440, 915 P.2d 277, 278-79 (1996) (recognizing that consideration of
impalpable or highly suspect evidence requires a new sentencing hearing
in front of a different district court judge). Instead, the record shows that
the sentencing judge was informed of the facts of the case before imposing
the sentences.3 And the State's arguments about the alleged recantation
do not amount to impalpable or highly suspect evidence. It also does not
appear that the lewdness counts influenced the sentencing judge's decision
to impose consecutive sentences for two of the sexual assault counts. A
more reasonable reading of the record, as appellant appears to
acknowledge in his briefs, indicates the sentencing judge imposed two of
the sentences to be served consecutively because there were two victims.
Accordingly, we
ORDER the amended judgment of conviction AFFIRMED.4
Barraguirre
s z.
j ecat,-0 J. ti/94 , Sr.J.
Stiglich Giflons
cc: Hon. Ronald J. Israel, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3As appellant notes, the sentencing judge did not preside over the
trial. Nevertheless, there is no indication that the sentencing judge was
not prepared for sentencing in this case.
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
SUPREME COURT
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