STATE VS. DIST. CT. (KEPHART (JOHN))

134 Nev., Advance Opinion 50
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 73389
Petitioner,
vs.
THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FILED
IN AND FOR THE COUNTY OF JUL iS 2018
WASHOE; AND THE HONORABLE El 't4 B ROWN
WILLIAM A. MADDOX, CLE
BY IV■1111
/
"
Respondents,
and
JOHN THOMAS KEPHART,
Real Party in Interest.
Original petition for a writ of mandamus in a criminal matter.
Petition granted.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe
County,
for Petitioner.
Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy
Public Defender, Washoe County,
for Real Party in Interest.
BEFORE PICKERING, GIBBONS and HARDESTY, JJ.
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OPINION
By the Court, PICKERING, J.:
Nevada law imposes increasingly serious penalties on repeat
domestic battery offenders. A first offense is a misdemeanor, while a third
domestic battery offense within seven years of the first constitutes a felony.
A jury convicted John Kephart of domestic battery, his third such offense in
seven years. Kephart's second domestic battery conviction resulted from a
plea bargain by which Kephart pleaded guilty to and was sentenced for a
"first offense" domestic battery. The district court has ruled that it will not
consider Kephart's second conviction at sentencing because it would be
unfair, given the earlier plea deal, to use the second "first offense" conviction
to enhance Kephart's most recent offense to a felony.
Kephart received the benefit of his earlier plea deal when he
was given the shorter sentence and lower fine only available to a first-time
offender. Before entering his plea, Kephart signed a written
acknowledgment that, while he would be sentenced for a "first offense," the
State could use that offense and any other prior offenses for enhancement
purposes should he commit another domestic battery within seven years.
Under these circumstances, using Kephart's two prior "first offense"
convictions to enhance his third domestic battery conviction to a felony does
not violate the plea bargain by which the second conviction was obtained.
We therefore grant the State's petition for a writ of mandamus and direct
the district court to take both of Kephart's prior convictions into account in
imposing sentence and entering the judgment of conviction in this case.
I.
Kephart has three domestic battery convictions The first
conviction dates back to May 2010, when Kephart pleaded no contest to
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"Domestic Battery—lst Offense." Kephart was represented by counsel and
signed an admonishment of rights form in which he acknowledged that "the
State will use this conviction. . . to enhance the penalty for any subsequent
offense." The form also set out the range of penalties for a "Second Offense
within 7 years (Misdemeanor)" and a "Third Offense or any subsequent
offense within 7 years (Category C felony)."
Kephart's second conviction came two months later, in July
2010. Citing the May 2010 conviction, the criminal complaint in the second
case charged Kephart with "domestic battery with one prior conviction
within the last seven years." A second domestic battery offense in seven
years remains a misdemeanor but it carries a longer mandatory minimum
term of imprisonment (ten days instead of two days), a higher minimum
fine ($500 instead of $200), and more hours of community service (100-200
hours instead of 48-120 hours) than a "first offense" domestic battery
conviction. See NRS 200.485(1)(a), (b) (2015). 1
Kephart represented himself in the second case He did so after
being advised of his constitutional rights and signing a written waiver of
the right to court-appointed counsel 2 Initially, Kephart pleaded not guilty.
'The Legislature amended NRS 200.485 in 2017, see 2017 Nev. Stat.,
ch. 496, § 9, at 3183, but this opinion refers to the pre-amendment version
of NRS 200.485, since the underlying offense predates the amendment.
2See Koenig v. State, 99 Nev. 780, 788, 672 P.2d 37, 42 (1983) (holding
that a prior uncounseled misdemeanor conviction can be used for
enhancement purposes if preceded by a valid waiver of counsel and the
record establishes the proceedings were constitutionally adequate) (citing
Baldasar v. Illinois, 446 U.S. 222 (1980) (plurality opinion)). Although the
Supreme Court later overruled Baldasar in Nichols v. United States, 511
U.S. 738, 748-49 (1994), it did so on grounds not argued to undermine
Koenig's application here.
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Later, after the prosecutor amended the complaint by crossing out the
references to the May 2010 conviction and writing in "1st" offense
everywhere "2nd" offense appeared, Kephart changed his plea from not
guilty to guilty. No transcript exists of the change-of-plea hearing, but the
district court minutes note the district attorney "couldn't prove the prior
domestic battery." The district court accepted Kephart's guilty plea and
sentenced him to the statutory minimums applicable to a first offense
domestic battery—two days in jail with the remaining 28-day sentence
suspended, a $200 fine, and 48 hours of community service.
The plea was not memorialized in a formal plea agreement.
Instead, Kephart signed and initialed an "admonishment of rights" form
like the one he signed in connection with his May 2010 conviction. This
form advised Kephart of the rights he waived by pleading guilty and
reminded him of the increasingly severe sentences Nevada law imposes on
repeat domestic battery offenders. In signing, Kephart acknowledged that:
I understand that the State will use this conviction,
and any other prior conviction from this or any
other state which prohibits the same or similar
conduct, to enhance the penalty for any subsequent
offense.
(emphasis added).
Kephart's third, and current, conviction came in January 2017,
when the jury found him guilty of one count of domestic battery. In charging
the offense, the State relied on Kephart's May and July 2010 domestic
battery convictions to enhance the offense to a Category C felony. See NRS
200.485(1)(c). Kephart objected to the State using the July 2010 conviction
for felony enhancement since the conviction resulted from plea negotiations
which, he alleged, obligated the State to treat the conviction as a first
offense for all purposes.
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The district judge deferred decision on Kephart's objection until
trial concluded. See NRS 200.485(4) (in prosecuting a repeat domestic
battery offense the "facts concerning a prior offense must. . . not be read to
the jury or proved at trial but must be proved at the time of sentencing").
After the jury returned its verdict, the district court conducted a hearing on
Kephart's objection. At the hearing, Kephart testified that he thought
pleading guilty to the second conviction as a "first offense" meant that if he
reoffended the next conviction would be a second offense. On cross-
examination, Kephart admitted signing the admonishment of rights form
and that he "kind of' understood the acknowledgment about the State using
the conviction and any other prior conviction for future enhancement
purposes. The district court did not find that the State affirmatively agreed
not to use the July 2010 conviction for enhancement purposes, but
nonetheless ruled in Kephart's favor. It deemed the notice to Kephart that
the July 2010 conviction could be used to enhance a subsequent offense to a
felony inadequate and entered an order stating that it would not consider
Kephart's July 2010 conviction in sentencing him
The district court vacated the sentencing date so the State could
appeal. After this court dismissed the State's direct appeal for want of
jurisdiction, see State v. Kephart, Docket No. 72481 (Order Dismissing
Appeal, June 6, 2017), the State filed the petition for a writ of mandamus
now presented. We exercise our discretion in favor of granting
extraordinary writ relief, Smith v. Eighth Judicial Dist. Court, 107 Nev.
674, 677, 818 P.2d 849, 851 (1991), because the State has no other adequate
remedy at law, see NRS 34.170; MRS 177.015(3), and the district court's
refusal, on this record, to take Kephart's July 2010 conviction into account
at sentencing violates the statutory mandate in MRS 200.485(1)(c). See
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State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 932, 267
P.3d 777, 780 (2011).
A.
Each of Kephart's convictions has been for the crime of
"domestic battery, a violation of NRS 33.018, NRS 200.481, and NRS
200.485." Though three statutes are cited, they cross-reference each other
and together establish the elements of battery constituting domestic
violence and its associated penalties. The cross-referenced statutory
scheme dates back to 1997 when the Legislature enacted NRS 200.485 and
reorganized NRS 200.481 to discourage recidivism by enhancing the
penalties for repeat domestic violence offenses. See English u. State, 116
Nev. 828, 832-35, 9 P.3d 60, 62-64 (2000) (chronicling the history of NRS
200.485 and its relationship to NRS 33.018 and NRS 200.481).
NRS 200.485 states the penalties for convictions for the crime
of battery constituting domestic violence:
1. Unless a greater penalty is provided
pursuant to subsection 2 or NRS 200.481, a person
convicted of a battery which constitutes domestic
violence pursuant to NRS 33.018:
(a) For the first offense within 7 years, is
guilty of a misdemeanor and shall be sentenced to:
(1) Imprisonment in the city or county
jail or detention facility for not less than 2 days, but
not more than 6 months; and
(2) Perform not less than 48 hours, but
not more than 120 hours, of community service.
The person shall be further punished by a fine of
not less than $200, but not more than $1,000. . . .
(b) For the second offense within 7 years, is
guilty of a misdemeanor and shall be sentenced to:
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(1) Imprisonment in the city or county
jail or detention facility for not less than 10 days,
but not more than 6 months; and
(2) Perform not less than 100 hours,
but not more than 200 hours, of community service.
The person shall be further punished by a fine of
not less than $500, but not more than $1,000.
(c) For the third and any subsequent offense
within 7 years, is guilty of a category C felony and
shall be punished as provided in NRS 193.130.
The statute further provides: "An offense that occurred within 7 years
immediately preceding the date of the principal offense or after the
principal offense constitutes a prior offense for the purposes of this section
when evidenced by a conviction, without regard to the sequence of the
offenses and convictions." NRS 200.485(4) (2015), now codified in revised
form as NRS 200.485(5) (2017); see note 1, supra.
The 1997 Legislature modeled NRS 200.485 on Nevada's DUI
enhancement statutes, now principally codified at NRS 484C.400 (2017).
See English, 116 Nev. at 834, 9 P.3d at 63; compare NRS 200.485(1) & (4)
(2015), with NRS 484C.400(1) & (2). In interpreting NRS 200.485 and its
related statutes, this court thus looks to cases that have construed Nevada's
DUI enhancement laws. English, 116 Nev. at 834, 9 P.3d at 63.
B.
A plain-text reading of NRS 200.485 undercuts the district
court's decision not to count Kephart's July 2010 conviction against him
because it purported to be for a "first offense." What determines felony
enhancement under the statute is the defendant having committed three
domestic battery offenses within seven years, two of which are evidenced by
judgments of conviction—not the designation of the prior offenses as "first"
and "second" offenses. Cf. Speer v. State, 116 Nev. 677, 679-80, 5 P.3d 1063,
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1064-65 (2000) (holding that the DUI enhancement statute that NRS
200.485(4) copies "does not limit offenses that may be used for enhancement
to those designated as a 'first offense' or a 'second offense"). Even treating
Kephart's July 2010 conviction as a "first offense" for all purposes leaves his
May 2010 conviction for his first "first offense." And NRS 200.485(4) says
that the sequence of the prior offenses and convictions does not matter, only
how many of them there are. So, calling the July 2010 conviction a first
offense still leaves Kephart with two prior offenses evidenced by convictions
within seven years of his current offense, making his current offense a
felony under NRS 200.485(1)(c).
Our cases construing the DUI enhancement statutes complicate
this plain-text approach. Citing Santobello v. New York, 404 U.S. 257, 262
(1971) ("when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled"), and Van
Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216(1986) (in enforcing
a plea bargain we hold the State to "the most meticulous standards of both
promise and performance"), we held in State v. Smith, 105 Nev. 293, 299,
774 P.2d 1037, 1041 (1989), abrogated on other grounds as recognized by
Byars v. State, 130 Nev. 848, 854, 336 P.3d 939, 943 (2014), that unless a
defendant is told otherwise, it is reasonable to expect that, in being allowed
to plead guilty to a "first offense" DUI for a known second offense, the State
is agreeing to treat the conviction as a first offense for all purposes,
including future enhancement. Part of the incentive to resolve a second
DUI charge by pleading guilty to a first offense is "the knowledge that a
first-time offense, for purposes of minimizing criminal penalties for future
drunk-driving convictions, [is] preferable to a second offense." Id. at 298,
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774 P.2d at 1041. Thus, when a defendant pleads a second DUI charge
down to a first offense, "Mlle spirit of constitutional principles" require
"appropriate clarification and warning" that the conviction will count as a
second offense for future enhancement purposes for it to be later so used.
Id. Because the record did not show that Smith received such clarification
or warning, the court interpreted the plea bargain as an agreement to treat
the offense as a first offense for both sentencing and future enhancement
purposes. Id. at 299, 774 P.2d at 1041. Accord Perry v. State, 106 Nev. 436,
438,794 P.2d 723, 724 (1990) (reaffirming Smith); see State v. Grist, 108
Nev. 1058, 1059, 843 P.2d 368, 369 (1992) (declining to reconsider Smith
and extending it to out-of-state pleas). But see Johnson v. Arkansas, 932
S.W.2d 347, 349 (Ark. Ct. App. 1996) (declining to follow Grist as
inconsistent with statutory enhancement penalty scheme, which bases
felony enhancement on the number of prior offenses not their designation
as first, second, or third).
We returned to the issue of using a second DUI pleaded to as a
first offense to enhance a third offense to a felony in Speer v. State, 116 Nev.
677, 5 P.3d 1063 (2000). The defendant in Speer pleaded guilty to his third
DUI offense in seven years. Id. at 678, 5 P.3d at 1064. The first conviction
was for a felony DUI as the result of three DUI convictions during the
preceding seven-year period. Id. The second conviction was for a
misdemeanor pleaded to and sentenced as a "first offense." Id. But unlike
Smith, where the record was silent as to future enhancement, in entering
the guilty plea in Speer, "the parties agreed that the conviction would not
be treated as a 'first offense' for all purposes and that Speer's next offense
could be treated as a felony." Id.SUPREME COURT
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Speer mainly argued that the State could not use his prior
felony conviction as one of three convictions within seven years, because the
applicable statute only allowed use of first-offense and second-offense
misdemeanor convictions, and not a prior felony conviction, for
enhancement. Speer, 116 Nev. at 679, 5 P.3d at 1064. Rejecting Speer's
argument, the court deemed the statute plain and unambiguous in
providing that "any two prior offenses may be used to enhance a subsequent
DUI so long as they occurred within 7 years of the principal offense and are
evidenced by a conviction." Id. at 679-80, 5 P.3d at 1064. Thus, the DUI
sentencing statute did "not limit offenses that may be used for enhancement
to those designated as a 'first offense' or a 'second offense,' and a felony
DUI conviction could be used as one of the three offenses within seven years.
Id. at 680, 5 P.3d at 1064. Speer distinguished Smith, Perry, and Grist as
cases in which
this court has held a second DUI conviction may not
be used to enhance a conviction for a third DUI
arrest to a felony where the second conviction was
obtained pursuant to a guilty plea agreement
specifically permitting the defendant to enter a plea
of guilty to first offense DUI and limiting the use of
the conviction for enhancement purposes. . . . The
rule recognized [Smith, Perry, and Grist] is not
applicable where, as here, there is no plea
agreement limiting the use of the prior conviction
for enhancement purposes. Because [Smith, Perry,
and Grist] depend on the existence of a plea
agreement limiting the use of the prior conviction
for enhancement purposes, they do not stand for
the general proposition that only offenses
designated as a "first" or "second" offense may be
used for enhancement purposes.
Speer, 116 Nev. at 680, 5 P.3d at 1065.
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The State quotes this language from Speer and urges that,
because the plea agreement did not specifically limit the State's use of the
conviction for felony enhancement, it may use the conviction. But Speer
misdescribes or at least oversimplifies Smith and its progeny. The plea
agreement in Smith did not "specifically. . . limit[ I the use of the conviction
for enhancement purposes," Speer, 116 Nev. at 680, 5 P.3d at 1065; the
record evidencing the plea agreement in Smith was silent on the subject of
felony enhancement. Smith, 105 Nev. at 298, 774 P.2d at 1041 ("Nothing
in the record indicates that, in 1986, the State advised Smith that after
receiving treatment as a first-offender, the 1986 conviction would thereafter
revert to a second offense in the event of further drunk-driving
convictions."); accord Perry, 106 Nev. at 437, 794 P.2d at 724 (quoting this
language from Smith and saying "the facts [in Smith] were similar to those
in the instant case"). Smith holds that a defendant who pleads guilty to a
first offense DUI originally charged as a second may reasonably expect the
State to treat the conviction as a first offense for all purposes, if the State
allows the plea to be entered "without appropriate clarification and
warning." 105 Nev. at 298, 774 P.2d at 1041.
It was in Speer, not Smith, that the plea deal specifically
addressed enhancement: In Speer, "the parties agreed that the conviction
would not be treated as a 'first offense' for all purposes and that Speer's next
offense could be treated as a felony," 116 Nev. at 678, 5 P.3d at 1064(emphasis added). Because the plea agreement allowed the State to use the
second conviction, pleaded to as a first offense, for felony enhancement, the
defendant could not reasonably expect the State to forgo that option.
Having provided Speer the "appropriate clarification and warning" Smith
requires, 105 Nev. at 298, 774 P.2d at 1041, the State could use Speer's
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second "first offense" to enhance his third offense in seven years to a felony.
Speer, 116 Nev. at 681, 5 P.3d at 1065-66.
C.
Consistent with Smith and Speer, we hold that, when a plea
agreement allows a defendant to plead guilty to a first offense for a second
domestic battery conviction, it is reasonable for the defendant to expect
first-offense treatment of the conviction for all purposes, see Smith, 105 Nev.
at 298, 774 P.2d at 1041; Perry, 106 Nev. at 438, 794 P.2d at 724; Crist, 108
Nev. at 1059, 843 P.2d at 368-69, unless the defendant receives "appropriate
clarification and warning" (Smith, 105 Nev. at 298, 774 P.2d at 1041)—or
explicitly agrees (Speer, 116 Nev. at 678, 5 P.3d at 1064)—that the State
may count the conviction as a second offense for future enhancement
purposes.
Applying these principles to this case, we must decide whether
Kephart's July 2010 plea to "first offense" domestic battery is more like
Smith, where it was reasonable for the defendant to expect first-offense
treatment for all purposes, or Speer, where the agreement provided for the
defendant to be sentenced for a first offense but for the conviction to count
as a second offense for enhancement purposes. In interpreting a plea
agreement, the object is to enforce the reasonable expectations of the
parties. See State v. Crockett, 110 Nev. 838, 842, 877 P.2d 1077, 1079(1994);
Van Buskirk, 102 Nev. at 244, 720 P.2d at 1217. Contract principles apply
but, because plea agreements "implicate the deprivation of human freedom,
the rules governing their interpretation, although having their roots in the
principles of contract law, also acknowledge that 'concern for due process
outweigh [s] concern for freedom of contract." United States v. Mankiewicz,
122 F.3d 399, 403 n.1 (7th Cir. 1997) (quoting United States v. Sandles, 80
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Kephart did not sign a formal plea agreement establishing the
terms of his July 2010 plea. The record includes, though, Kephart's May
2010 judgment of conviction for his first "first offense" domestic battery, the
written admonishment of rights Kephart signed in pleading guilty to his
second "first offense" domestic battery in July of 2010, and the July 2010
judgment of conviction. In signing the July 2010 admonishment of rights
form, Kephart specifically acknowledged that "I understand that the State
will use this conviction, and any other prior conviction from this or any other
state which prohibits the same or similar conduct, to enhance the penalty
for any subsequent offense." He was also told what the penalties were for
first-offense, second-offense, and third-offense domestic battery over a
seven-year period. This information, combined with the reference to the use
of "any other prior conviction" for "same or similar conduct," provided
Kephart "appropriate clarification and warning" that the July 2010
conviction, in conjunction with his prior conviction from May 2010, would
be used to enhance a subsequent third offense to a felony under NRS
200.485.
Kephart testified that he "understood" the July 2010 conviction
would be a first offense for all purposes, but this understanding appears
entirely subjective and not based on anything the State or the district court
said or did to contradict the acknowledgment Kephart signed. Compare
Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975) ("mere subjective
belief of a defendant as to potential sentence, or hope of leniency,
unsupported by any promise from the State or indication by the court, is
insufficient to invalidate a guilty plea"), with United States v. Malone, 815
F.3d 367, 370 (7th Cr. 2016) ("we give unambiguous terms in the plea
agreement their plain meaning"). Kephart received the benefit of his July
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2010 plea deal when he was given the shorter sentence, lower fine, and
lighter community service obligation only first offenders are eligible for.
The record does not establish that, in entering into this plea deal, the State
also agreed to treat Kephart's July 2010 conviction as a first offense for
future enhancement purposes. Kephart's belief otherwise, in the face of the
admonishment he acknowledged, was unreasonable. Under NRS
200.485(1)(c), Kephart has sustained three domestic battery convictions
over a seven-year period for which the district court must now sentence him
We therefore, grant the State's request for extraordinary relief
and direct the clerk of this court to issue a writ of mandamus directing the
district court to admit Kephart's July 2010 conviction for domestic battery
to enhance his third conviction to a felony.
J.
We concur:
J.
Hardesty
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