Herrera (Julio) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JULIO HERRERA, No. 69482
Appellant,
VS.
THE STATE OF NEVADA,
Respondent.
FILED
JUN 1 7 2016
IE K. LINDEMAN
COU
CLEM<
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a motion
to correct an illegal sentence. Eighth Judicial District Court, Clark
County; William D. Kephart, Judge.
Appellant argues that his sentence is illegal because he was
entitled to be sentenced by a jury rather than the district court where he
did not stipulate to waiving that right as required by NRS 175.552(1), (2).
A motion to correct an illegal sentence may only challenge the facial
legality of the sentence: either the district court was without jurisdiction
to impose a sentence or the sentence was imposed in excess of the
statutory maximum. Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321,
324 (1996). "A motion to correct an illegal sentence 'presupposes a valid
conviction and may not, therefore, be used to challenge alleged errors in
proceedings that occur prior to the imposition of sentence." Id. (quoting
Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985). At the time
appellant was sentenced, NRS 175.552 did not require the parties to
stipulate to a waiver of the right to a separate penalty hearing before a
jury, see 1977 Nev. Stat., ch. 585, § 7, at 1543, and this court has
construed the previous version•of the statute as providing for a separate
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penalty hearing only when the death penalty was a sentencing option. See
Kazalyn v. State, 108 Nev. 67, 77, 825 P.2d 578, 584 (1992), receded from
by Byford u. State, 116 Nev. 215, 994 P.2d 700 (2000); McCabe v. State, 98
Nev. 604, 607, 655 P.2d 536, 538 (1982). The record shows that the death
penalty was not a sentencing option in appellant's case. Therefore, the
district court was not without jurisdiction to impose sentence nor was the
sentence imposed in excess of the statutory maximum. Therefore, the
district court did not err by denying the motion.' Accordingly, we
ORDER the judgment of the district court AFFIRMED.
r.{-1„
, J.
cc: Hon. William D. Kephart, District Judge
Julio Herrera
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'We note that appellant previously filed a motion to correct an
illegal sentence in the district court based on the same grounds. The
Court of Appeals upheld the district court's denial of that motion. Herrera
v. State, Docket No. 67243 (Order of Affirmance, May 20, 2015).
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