Opinion
No. 71367
11-01-2017
BRIAN MARCUS WILSON, Appellant, v. ELDON K. MCDANIELS, INTERIM DIRECTOR, NDOC; AND HAROLD WICKHAM, WARDEN, WSCC, Respondents.
ORDER VACATING AND REMANDING
This is a pro se appeal from a district court order denying a postconviction petition for a writ of habeas corpus. First Judicial District Court, Carson City; William A. Maddox, Senior Judge.
Appellant Brian Marcus Wilson argues that the credits he has earned pursuant to NRS 209.4465 must be applied to his parole eligibility as provided in NRS 209.4465(7)(b) (1997). In rejecting Wilson's claim, the district court did not have the benefit of our recent decision in Williams v. State, 133 Nev., Adv. Op. 75, ___ P.3d ___ (2017). There, we held that credits apply to parole eligibility as provided in NRS 209.4465(7)(b) (1997) where the offender was sentenced pursuant to a statute that requires a minimum term of not less than a set number of years but does not expressly mention parole eligibility. Wilson is serving a sentence pursuant to such a statute for the use of a deadly weapon during robberies committed on or between July 17, 1997, and June 30, 2007. See NRS 193.165 (1995) (providing sentence for weapon enhancement based on sentence for primary offense); NRS 200.380(2) (providing sentence for robbery). Consistent with Williams, the credits that Wilson has earned pursuant to NRS 209.4465 should be applied to his parole eligibility for the sentence he is serving. The district court erred in ruling to the contrary. We therefore
Having considered Wilson's pro se brief and given our decision in Williams, we conclude that a response is not necessary. NRAP 46A(c). This appeal therefore has been submitted for decision based on the pro se brief and the record. See NRAP 34(f)(3).
If Wilson has already expired the sentence or appeared before the parole board on the sentence, then the court cannot grant any relief. Williams, 133 Nev., Adv. Op. 75 at 10 n.7. Thus, the court cannot grant relief as to the sentences that Wilson already discharged for the robbery convictions. It is unclear from the record whether Wilson has appeared before the parole board on the enhancement sentences. The district court may consider any evidence in that respect on remand. --------
ORDER the judgment of the district court VACATED AND REMAND this matter for the district court to reconsider its decision in light of Williams.
/s/_________, J.
Hardesty /s/_________, J.
Parraguirre /s/_________, J.
Stiglich cc: Chief Judge, The First Judicial District Court
Hon. William A. Maddox, Senior Judge
Brian Marcus Wilson
Attorney General/Carson City
Attorney General/Las Vegas
Carson City Clerk