IN RE: APPLICATION OF SMITH (BRECK)

138 Nev., Advance Opinion 11
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IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 82696
APPLICATION OF BRECK WARDEN
SMITH FOR A WRIT OF HABEAS
CORPUS.
FL
THE STATE OF NEVADA,
Appellant,
vs.
BRECK WARDEN SMITH,
Respondent.
Appeal from a district court order granting a postconviction
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Kathleen E. Delaney, Judge.
Affirmed.
Aaron D. Ford, Attorney General, and Katrina A. Samuels, Deputy
Attorney General, Carson City,
for Appellant.
McAvoy Arnaya & Revero Attorneys and Michael J. McAvoy-Amaya and
Timothy E. Revero, Las Vegas,
for Respondent.
Claggett & Sykes Law Firm and Micah S. Echols, Las Vegas; Sharp Law
Center and A.J. Sharp, Las Vegas; The Powell Law Firm and Tom W.
Stewart, Las Vegas,
for Amicus Curiae Nevada Justice Association.
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BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
OPINION
By the Court, SILVER, J.:
When a parolee is detained for a parole violation and returned
to the custody of the Nevada Department of Corrections (NDOC), NRS
213.1517(3) requires the Nevada Board of Parole Commissioners (the
Parole Board) to hold a hearing on the matter within 60 days. NRS
213.1517(4) sets out an exception to this 60-day rule when the parolee is
detained on a new criminal charge but not returned to NDOC until after
the final adjudication of that new charge. At issue in this appeal is whether
subsection Ts exception applies where the Parole Board executes a warrant
to return the parolee to NDOC before the final adjudication on the new
criminal charge. We conclude that the parolee's return to NDOC pursuant
to a warrant triggers subsection 3's 60-day hearing requirement. We
therefore determine that the district court here correctly applied NRS
231.1517 and ordered the Parole Board to credit respondent for the time he
spent incarcerated pending adjudication on his new criminal charges.
FACTS
In 2008, respondent Breck Smith was adjudicated as a habitual
criminal and sentenced to serve a prison term of ten years to life. He was
released on parole in March 2017. One year later, in March 2018, he was
arrested on new criminal charges of attempted burglary and possession of
burglary tools and remanded into the custody of the Clark County Sheriff.
As a result of his new arrest, he was incarcerated at the Clark County
Detention Center.
2
Soon after, the Division of Parole and Probation issued parole
violation reports based on the new criminal charges. Based on the new
arrest report, the Division found probable cause for the parole violation. On
April 11, 2018, the Parole Board issued a retake warrant that resulted in
Smith being remanded back into the custody of NDOC. Although Smith
was remanded into NDOC's custody and physically incarcerated in the
prison, Smith's parole revocation hearing was continued for over a year,
until June 25, 2019, the day after Smith entered an Alford plea to the new
attempted burglary charge. On that date, the Parole Board revoked Smith's
parole for one year, until July 1, 2020. Because Smith received a
consecutive sentence on his new charge, he did not begin serving his new
sentence until July 2, 2020, after he was paroled on the previous charges.
In January 2021, Smith filed an emergency petition for a writ
of habeas corpus, arguing that under NRS 213.1517, the Parole Board
exceeded its authority by immediately returning Smith to NDOC's custody
but deferring the parole revocation hearing until he pleaded guilty on the
new criminal charges—far beyond the 60 days allowed by that statute.
Because he was not given proper credit for any time served after the 60-day
statutory period, he claimed that he effectively lost over a year of credit for
time served due to him on his parole violation case. The district court
agreed and ordered NDOC to ensure Smith was awarded flat time and
statutory credit from June 12, 2018, to June 17, 2019—the dates by which
his parole revocation hearing should have been held and his one-year parole
revocation penalty would have expired, respectively. The State appeals,
arguing that NRS 213.1517(4) creates an exception to the 60-day statutory
'North Carolina v. Alford, 400 U.S. 25 (1970).
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rule that allowed the Parole Board to defer the parole revocation hearing to
after Smith entered his Alford plea on the new criminal charges.
DISCUSSION
We review questions of statutory interpretation de novo, giving
the statute its plain meaning unless doing so would create an unreasonable
result. Moore v. State, 136 Nev. 620, 622-23, 475 P.3d 33, 36 (2020);
Lofthouse v. State, 136 Nev. 378, 380, 467 P.3d 609, 611 (2020). We will
avoid interpretations that would render words or phrases superfluous or
nugatory. Harvey v. State, 136 Nev. 539, 543, 473 P.3d 1015, 1019 (2020).
Before the Parole Board may revoke parole, a parolee is entitled
to a parole revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 487-
88 (1972). Minimal due process requires that this hearing "be tendered
within a reasonable time after the parolee is taken into custody." Id. at 488;
see also Scarbo v. Eighth Judicial Dist. Court, 125 Nev. 118, 124, 206 P.3d
975, 979 (2009) (explaining the due process protections of the United States
and Nevada Constitutions require an opportunity to be heard where a
liberty interest is at stake). This is so because the execution of a parole
violation warrant, and custody under that warrant, together are "the
operative event triggering any loss of liberty attendant upon parole
revocation." Moody v. Daggett, 429 U.S. 78, 87 (1976).
To this end, the Legislature established that where probable
cause exists for a parolees detention, the Parole Board must conduct the
parole revocation hearing within 60 days after a parolee is returned to
NDOC's custody. NRS 213.1517(3). NRS 213.1517(4) provides an exception
to that rule:
If probable cause for continued detention of a
paroled prisoner is based on conduct which is the
subject of a new criminal charge, the Board may
consider the prisoner's case under the provisions of
4
subsection 3 or defer consideration until not more
than 60 days after his or her return to the custody
of the Department of Corrections following the final
adjudication of the new criminal charge.
The State argues that under subsection 4, where a parolee is
detained on new criminal charges, the Parole Board may defer the parole
revocation hearing up to 60 days after the final adjudication on the new
criminal charges, even where, as here, the parolee is in NDOC's custody
pending the adjudication. Smith counters that subsection Ts exception to
the 60-day requirement applies only where the parolee remains in local
custody pending adjudication on the new charges and returns to NDOC
after that adjudication.
We read NRS 213.1517 with a due process overlay and are
persuaded by Smith's arguments. NRS 213.1517(4) provides that where the
probable cause for the parolees continued detention is based on conduct
underlying a new criminal charge, the Parole Board may either conduct the
revocation hearing in accordance with subsection 3—return the parolee to
NDOC's custody and hold the hearing within 60 days—or defer the
revocation hearing until no later than 60 days after the parolees return to
NDOC's custody following final adjudication of the new charge. The phrase
"following the final adjudication of the new criminal charge in subsection
4 attaches to the phrase "after [the parolee's] return to the custody of the
Department of Corrections," creating separate and sequential requirements
here: final adjudication on the new charges, followed by a return to NDOC's
custody. And because each of these conditions must be met to defer
consideration under subsection 4, it follows that subsection Ts exception
will not apply where the Parole Board executes a warrant and returns the
parolee to NDOC's custody before adjudication on the new charges. This
interpretation avoids rendering the phrase "after [the parolee's] return to
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the custody of the Department of Corrections" superfluous. It also comports
with due process considerations, as a parolee loses liberty once the parolee
is taken into custody under the warrant and this loss triggers due process
protections. See Moody, 429 U.S. at 87 (explaining that the trigger for the
parolee's loss of liberty is the execution of the warrant and the return to
custody); Morrissey, 408 U.S. at 487-88 (explaining that once a parolee is
taken into custody, due process requires the Parole Board hold a hearing
within a reasonable time).2
Here, the Parole Board issued a retake warrant in April 2018,
at which point Smith was immediately remanded back into the custody of
NDOC and returned to incarceration at the prison. His parole revocation
hearing was continued until after adjudication on his new criminal charges
in June 2019—well in excess of the 60 days allowed by NRS 213.1517. We
therefore conclude that the Parole Board exceeded its authority under that
statute and that the district court properly ordered NDOC to reflect a parole
2A1though the State argued below that Smith requested the
continuances of his parole revocation hearing and thus created the
complained-of error, the State does not renew these arguments in its
opening brief on appeal and, moreover, the State failed to provide us with a
sufficient record to review that point. See Cooper v. State, 134 Nev. 860,
861 n.2, 432 P.3d 202, 204 n.2 (2018) (declining to consider an argument
raised for the first time in the reply brief); Johnson v. State, 113 Nev. 772,
776, 942 P.2d 167, 170 (1997) ("It is appellant's responsibility to make an
adequate appellate record. We cannot properly consider matters not
appearing in that record." (citation omitted)). We note, however, that a
petitioner may not leverage an error he or she invited or waived. See
Jeremias v. State, 134 Nev. 46, 52-53, 412 P.3d 43, 50 (2018). Thus, where
a parolee delays the revocation hearing by requesting continuances pending
the outcome of the parolee's new criminal charges, neither due process nor
NRS 213.1517 will require the Parole Board to hold the revocation hearing
within 60 days of the parolee's return to NDOC.
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revocation date of June 12, 2018, and to ensure that any credits, expiration
date of his parole revocation case, and start date of the sentence for his new
case reflect the June 12, 2018, parole revocation date.3
CONCLUSION
When probable cause exists to detain a parolee, NRS
213.1517(3) requires the Board of Parole Commissioners to consider the
parolees case within 60 days of the date the parolee returns to the custody
of the Department of Corrections. NRS 213.1517(4) provides an exception
to the 60-day rule and allows the Parole Board to defer consideration until
the parolee is adjudicated on the new criminal charge and subsequently
returned to NDOC. Each of the conditions set forth in NRS 213.1517(4)
must be met to defer consideration beyond 60 days from the date the parolee
is returned to the custody of NDOC. Because, here, the Parole Board
executed a retake warrant and returned Smith to the custody of NDOC
before Smith's new criminal charges were adjudicated, this exception did
not apply and the Parole Board exceeded its authority by deferring the
revocation hearing beyond 60 days after Smith's return to the custody of
3We do not reach the States arguments against the district coures
remedy of ordering the recalculation of Smith's time, as the State neither
raised its arguments below nor supports them with adequate authority on
appeal. See Jeremias, 134 Nev. at 50, 412 P.3d at 48 ("The failure to
preserve an error, even an error that has been deemed structural, forfeits
the right to assert it on appear); Mazzan v. Warden, 116 Nev. 48, 75, 993
P.2d 25, 42 (2000) ("Contentions unsupported by specific argument or
authority should be summarily rejected on appeal.").
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NDOC. Accordingly, we affirm the district court order granting Smith's
postconviction petition for a writ of habeas corpus.
J.
Silver
We concur:
J.
Cadish
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J.
Pickering
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