Opinion
No. 66207
01-21-2015
LARONDA WINZER, Appellant, 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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.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 from a judgment of conviction, pursuant to a guilty plea, of possession of credit or debit card without cardholder's consent. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
Appellant contends that her sentence of 12-34 months, for a non-violent offense, constitutes cruel and unusual punishment. She asserts that she should have been afforded the benefit of probation as was contemplated in her plea negotiations.
The granting of probation is discretionary. See NRS 176A.100(1)(c). See generally Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987) ("The sentencing judge has wide discretion in imposing a sentence . . . ."). This court will refrain from interfering with the sentence imposed "[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). Further, 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 the Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime).
Although the State agreed to recommend probation as part of the plea negotiations, the court found that, upon appellant's failure to appear at the initial sentencing hearing, the State regained the right to argue at sentencing for any appropriate sentence. After noting that appellant had a significant criminal history, she had traffic warrants out against her, she was on probation at the time she committed the instant offense, and she failed to appear at sentencing and picked up a new charge while sentencing was pending, the district court rejected appellant's request for probation and imposed a prison term of 12-34 months.
The sentence imposed is within the parameters provided by the relevant statutes, see NRS 193.130(2)(d), NRS 205.690(2), and appellant does not allege that those statutes are unconstitutional or that the district court relied on impalpable or highly suspect evidence. The district court did not abuse its discretion in declining to suspend the sentence and place appellant on probation. The sentence imposed is not so grossly disproportionate to the crime as to constitute cruel and unusual punishment. Accordingly, we conclude appellant's claim lacks merit, and we
ORDER the judgment of conviction AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Elissa F. Cadish, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk