Opinion
No. 60758.
12-12-2012
Jamahl PATTERSON, Appellant, v. Gregory SMITH, Warden, Respondent.
Jamahl Patterson Attorney General/Carson City
Jamahl Patterson
Attorney General/Carson City
ORDER OF AFFIRMANCE
This is a proper person appeal from an order denying a post-conviction petition for a writ of habeas corpus. First Judicial District Court, Carson City; James Todd Russell, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See
In his petition filed on December 21, 2011, appellant claimed that the Nevada Department of Corrections had structured his sentences incorrectly. Having reviewed the record on appeal, we conclude that substantial evidence supports the decision of the district court to deny relief and that the district court did not err as a matter of law. Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994). We therefore affirm the denial of the petition for the reasons stated in the attached district court order. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR CARSON CITY
JAMAHL PATTERSON, # 90336, Petitioner,
vs.
GREGORY SMITH, WARDEN, Respondent.
ORDER
This matter comes before the Court on Petitioner's Petition for Writ of Habeas Corpus filed on December 21, 2011, An Answer was filed on March 7, 2012. A Request to Submit was filed the same date.
1. FACTS AND PROCEDURAL HISTORY
A Judgement of Conviction was filed May 1, 2006. in Case No, 06–00149C, in the First Judicial District Court of the State of Nevada, in and for Carson City, in which the Petitioner was found guilty of Leaving the Scene of an Accident (Hit & Run) Involving injury. The Petitioner was sentenced to a minimum of twenty-six (26) months to a maximum of one hundred twenty (120) months and imposed a fine of $2000. (“2006 Case”).
While in the custody of the Nevada Department of Corrections serving his sentence in the 2006 case, the Petitioner escaped from Stewart Conservation Camp, on April 16, 2007. While on escape status he committed the crime of Attempted Invasion of the Home in Washoe County (“2007 Case”).
A Judgment of Convection was filed on December 13, 2007, in Case No. CR07–1518, in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, in which the Petitioner was found guilty of Attempted invasion of the Home. The Petitioner was sentenced to 3 minimum of twelve (12) months to a maximum of thirty-six (36) months to run consecutive with the sentence imposed in the 2006 case, Case No. 06–00149C. Additionally, this sentence was to run consecutive with any other sentence the Petitioner was obligated to serve.
A Judgement of Conviction was filed October 21, 2008, in Case No, 08 CR 00058 IB in the first Judicial District Court of the State of Nevada, in and for Carson City, in which the Petitioner was found guilty of Escape. (“2008 Case”). The Petitioner was sentenced to a minimum of twelve (12) months to a maximum of sixty (60) months. This sentence was to run consecutive to the 2006 case, Case No. 06–00149C.
Therefore, both the 2007 and 2003 Judgments of Conviction specifically required the sentenced imposed by each respective Judgment of Conviction run consecutive with the 2006 case. The Petitioner claims in his Petition that NDCC has unlawfully run his current 2008 sentence consecutive to the 2007 case. Petitioner asserts that the sentence imposed in the 2008 case was to be ran concurrent with the sentence imposed in the 2007 case. The Petitioner further argues, in the alternative, that if his 2007 and 2008 sentences were 10 run consecutive, that this Court should now modify his sentence in the 2008 case and provide that the 2008 sentence run concurrent with the 2007 sentence.
On December 4, 2008, the Petitioner filed a Motion with this Court requesting Clarification whether the 2008 case was being run consecutively or concurrently with the 2007 case. On December 15, 2008 the Office of the Attorney General filed a Response to the Petitioner's Motion. In his Response, the Deputy Attorney General declared the Petitioner's Motion moot, pursuant to his belief that the 2008 case and 2007 case were already running concurrent to one another, and not consecutive. The Deputy Attorney General based his. reasoning on NRS 176.035(1), which states:
Except as otherwise provided in subsection 2, whenever a person is convicted of two or more offenses, and sentence has been pronounced for one offense, the court in imposing any subsequent sentence may provide that the sentences Subsequently pronounced ran either concurrently or consecutively with the sentence first imposed. Except as otherwise provided in subsections 2 and 3, if the court makes no order with reference thereto, all such subsequent sentences run concurrently.
Based on this Court not addressing specifically whether the 2008 case and 2007 ease were to be run concurrently or consecutively, when the Court had the discretion to do so, the Deputy Attorney General concluded, under NRS 176.035(1) that the sentences were to be run concurrently. Furthermore, the Deputy Attorney General concluded that the provisions of NRS 176.035(2). mandating concurrent sentences when a subsequent felony is committed by a person already serving a sentence for a prior felony, did not apply to this case. NRS 176.035(2) provides:
Except as otherwise provided in this subsection, whenever a person under sentence of imprisonment for committing a felony commits another crime constituting a felony and is sentenced to another term of imprisonment for the felony, the latter term must not begin until the expiration of all prior terms.
The Deputy Attorney General concluded NRS 176.035(2) did not apply to this matter based on the case, Forbes v. State, 96 Nev. 17 (1980). In Forbes, the Court held that a sentencing court has discretion to run a sentence for escape concurrent or consecutive to the defendant's original sentence when, the defendant was not under a term of imprisonment at the time he escaped. Id. at 18 (emphasis added). The defendant in Forbes escaped from a hospital while in custody, awaiting trial. In this case, the Deputy Attorney General in 2008, stated in his Response that because the Judgment of Conviction in the 2007 case was entered after the crime of escape was committed, under Forbes, the provisions of NRS 176.035(2) did not apply. (Emphasis added).
Presumably, the Deputy Attorney General in 2008 misunderstood the holding of the Forbes case as allowing the sentencing court to exercise discretion with regards to imposing a consecutive or concurrent sentence if, when the defendant escaped from custody, he was not serving a sentence for the later crime(s) but was instead serving a sentence for another, prior crime. Because in 2007, at the time of the escape, the Petitioner was not serving time for the 2007 case, the Deputy Attorney General concluded that the Court maintained discretion and was not required to run the sentences consecutively, pursuant to NRS 176.035(2). Under the Deputy Attorney General's reasoning because the Court was not required to run the 2007 and 2008 sentences consecutively under NRS 176.035(2), and did not specifically state in its Judgment of Conviction whether the 2007 and 2008 sentences were to be run consecutively or concurrently, under NRS 176.035(1), the sentences ran concurrently. Based on this representation, she Petitioner's Motion was thus denied as moot by this Court on December 16, 2008.
II. DISCUSSION
The Petitioner's 2007 and 2008 sentences are to run consecutively. This Court's 2008 Judgment of Conviction did not need to provide whether the 2007 and 2008 sentences were to be run consecutively or concurrently because the Court's, discretion with regards to that issue was removed by NRS 3 76, 035(2), Based on prevailing Nevada law, the Court may not modify the terms of the Petitioner's sentence.
Under NRS 176,035(2), when a defendant, already under a term of imprisonment, commits a subsequent felony for which he is sentenced to another term of imprisonment, all prior terms of imprisonment must be served before the defendant may serve the term of imprisonment for the subsequent offense. NRS 176.035(2) thus removes a court's discretion, provided for in NRS 176.035(1), in determining whether multiple sentences may be run concurrently or consecutively Felonies committed by a defendant while incarcerated and serving a term of imprisonment for smother crime may not be run concurrently,
The Deputy Attorney General's understanding of the holding in the Forbes ease in 2008 was misguided. The defendant in Forbes was not under a term of imprisonment at the time of his escape from custody. He was merely in custody, awaiting trial. In this case, the Petitioner was serving a term of imprisonment for the 2006 case at the time he committed the crime of escape. In this situation, NRS 176.035(2) explicitly removes the trial court's discretion with regards to running sentences concurrent or consecutive, and mandates that they run consecutive. This Court's 2008. Judgment of Conviction specified that the 2008 sentence was to run consecutive to the 2006 sentence. This Court did not address whether to run the 2008 sentence consecutive or concurrent with the 2007 sentence, which was not an error because its discretion was removed by statute.
Generally, a district court may not modify the terms of a sentence after the defendant has begun serving it, Staley v. The State of Nevada, 106 Nev. 75 (1990), NRS 176.185(4). Exceptions to this rule may be made when a court makes a mistake in judgment that works to the extreme detriment of the defendants based on his due process rights. Id. at 79. The defendant begins to serve a sentence when a judgment of conviction is signed by the judge. Id .
As an alternative argument, the Petitioner requests that this Coon modify the 2008 science 10 run concurrency with the 2007 sentence. However, the law with regards to this area is unequivocal. This Court may not modify the terms of the 2008 sentence after the Judgement of Conviction was signed unless the original sentence was mistaken and this mistake worked to the extreme detriment of the Petitioner. This Court's original 2008 sentence, which effectively ran the 2008 sentence consecutive to the 2007 and 2006 sentences, was correct, pursuant to NRS 176.035(2). Based on the absence of mistake by the Court in the 2008 sentencing, the potential detriment to the Petitioner need not be addressed.
III. JUDGMENT
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DENIED pursuant to NRS 176.035(2), which requires the 2007 and 2008 sentences run consecutively.
/s/
JAMES T. RUSSELL
District Judge
Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911(1975).