Opinion
No. 73374
04-11-2018
THOMAS WILSON, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF REVERSAL AND REMAND
Thomas Wilson appeals from a judgment of conviction, entered pursuant to a guilty plea, of robbery. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Wilson argues the district court abused its discretion at sentencing and his sentence constitutes cruel and unusual punishment. Specifically, Wilson argues the district court's sentence exceeded the recommendations of the Division of Parole and Probation and the State, was contrary to the substantial mitigating factors presented at sentencing, and was grossly disproportionate to the crime.
The district court has wide discretion in its sentencing decision. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987). Regardless of its severity, "[a] sentence "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 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).
Even assuming we had authority to entertain Wilson's request to overrule Campbell v. Eighth Judicial Dist. Court, 114 Nev. 410, 957 P.2d 1141 (1998), we conclude he has failed to demonstrate such action is warranted.
We have considered the sentence and the crime and we conclude the sentence imposed is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment. However, we note Wilson's sentence of 60 to 144 months is illegal because the minimum term exceeds 40 percent of the maximum term. See NRS 193.130(1). Therefore, we conclude the district court abused its discretion when imposing sentence. Accordingly, we
ORDER the judgment of conviction REVERSED AND REMAND this matter to the district court for resentencing.
We remind the district court it "may correct an illegal sentence only to the extent necessary to bring the sentence into compliance with the statute." Miranda v. State, 114 Nev. 385, 387, 956 P.2d 1377, 1378 (1998) (internal quotations omitted). --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Valerie Adair, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk