Opinion
No. 74973
07-17-2018
MARK MICHAEL FORD, Appellant, v. JO GENTRY, WARDEN; AND THE STATE OF NEVADA, Respondents.
ORDER VACATING JUDGMENT AND REMANDING
Mark Michael Ford appeals from an order of the district court denying the postconviction petition for a writ of habeas corpus filed on September 29, 2017. Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
In his petition, Ford claimed the Nevada Department of Corrections has not been applying his statutory credits toward his minimum terms. The district court denied this claim because Ford is currently serving a sentence for the deadly weapon enhancement which, by virtue of the underlying offense, requires a minimum term of 10 years to be served prior to parole eligibility. Therefore, the district court determined Ford was not entitled to credits toward his minimum parole eligibility pursuant to NRS 209.4465(7)(b).
We note the record before this court does not contain a copy of Ford's judgment of conviction indicating the nature of the crime committed or the charging document indicating when Ford committed his crime. However, Ford has not challenged this finding by the district court.
It appears from the record Ford may be serving an aggregated sentence that includes an enhancement sentence for the use of a deadly weapon related to a second-degree murder committed prior to July 1, 2007. Pursuant to NRS 209.4465(7)(b) (1997), Ford would not be entitled to have the credits he has earned applied to his parole eligibility on that weapon-enhancement sentence because it was imposed pursuant to a statute that required he serve a minimum of ten years before he is eligible for parole. See NRS 193.165 (1995) (providing the sentence for the deadly weapon enhancement is based on the sentence for the primary offense); NRS 200.030(5) (setting forth sentencing range for second-degree murder). Therefore, the district court was correct that NRS 209.4465(7)(b) does not apply to the weapon enhancement,
However, it also appears the aggregated sentence includes another sentence for burglary while in possession of a firearm, which was imposed pursuant to a statute requiring a minimum term of not less than a set number of years but did not expressly mention parole eligibility. See NRS 205.060(4). If that is accurate, then pursuant to NRS 209.4465(7)(b) (1997) and Williams v. State Department of Corrections, 133 Nev. ___, 402 P.3d 1260 (2017), credits earned under NRS 209.4465 would apply to Ford's parole eligibility on that sentence. See generally NRS 213.1212 (addressing eligibility for parole where prisoner's sentences have been aggregated). Therefore, if the sentences were aggregated, the district court should have considered whether NRS 209.4465(7)(b) applied to Ford's sentence for burglary while in possession of a firearm. Because the record is not sufficiently developed to resolve this issue, we
It is unclear from the record whether Ford has appeared before the parole board on the aggregated sentence; if so, the district court cannot grant him any relief. See Williams, 133 Nev. ___ n.7, 402 P.3d at 1265 n.7. The district court may consider any evidence in that respect on remand.
ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.
We also note the district court's order did not adequately address Ford's claim his statutory credits were not being applied to his maximum term and his claims regarding due process and ex post facto violations. --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Linda Marie Bell, District Judge
Mark Michael Ford
Attorney General/Carson City
Attorney General/Las Vegas
Eighth District Court Clerk