Opinion
No. 61330
2013-10-16
ANDRA A. GAINES A/K/A ANTHONY RAY GAINES, Appellants, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal under NRAP 4(c) from a judgment of conviction, pursuant to an Alford plea, of conspiracy to commit burglary, burglary, and grand larceny. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
Worth Carolina v. Alford, 400 U.S. 25 (1970).
Appellant argues that his sentence constitutes cruel and unusual punishment under the United States and Nevada Constitutions because his current convictions and the convictions supporting his sentence under the habitual criminal statute, NRS 207.010, are nonviolent. Regardless of its severity, a sentence that is within the statutory limits is not '"cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience.'" Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining that Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime). The sentence imposed is within the parameters provided by the relevant statute, see NRS 207.010(1)(b), and appellant does not allege that the statute is unconstitutional. Further, this court has consistently observed that "NRS 207.010 makes no special allowance for non-violent crimes"; rather, that is a consideration within the district court's sentencing discretion. Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992); see Tillema v. State, 112 Nev. 266, 271, 914 P.2d 605, 608 (1996). We are not convinced that the sentence imposed is so grossly disproportionate to the crime and appellant's history of recidivism as to constitute cruel and unusual punishment. See Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
__________, J.
Hardesty
__________, J.
Parraguirre
__________, J.
Cherry
cc: Hon. James M. Bixler, District Judge
Keith C. Brower
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk