Bork (Monique) v. State ( 2015 )

 sentence." Rondell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993)
(quoting People v. Macke& 276 Cal. Rptr. 559, 563 (Ct. App. 1990)). Here,
the brief statement by the challenged witness merely thanked the victim's
grandmother and adoptive parents for the care they provided, did not
specifically address the defendant or the crime, and did not make a
sentencing recommendation. The district court also heard from the
victim's adoptive parents, see NRS 176.015(3), (5)(d)(3), who both asked
the district court to impose the maximum sentence after providing details
about the victim's life after his severe brain injury and his extensive
medical history preceding his death. The State, as well, argued for the
maximum sentence and the district court imposed the maximum prison
term of 96-240 months. 2 Bork fails to demonstrate that the challenged
statement unduly influenced the district court, and we conclude that the
district court did not commit plain error entitling her to a new sentencing
hearing. See Dieudonne v. State, 127 Nev. , 245 P.3d 1202, 1204-
05 (2011) (reviewing the failure to object to victim impact statements for
plain error). 3
Second, Bork contends that the district court abused its
discretion by imposing an excessive and disproportionate sentence
2 The
Division of Parole and Probation recommended a prison term of
53-240 months.
3Additionally,according to documents provided by Bork on appeal,
at the hearing on her motion for resentencing, the district court, who also
presided over the codefendant's trial, stated that in sentencing Bork, it
considered "everything that was presented to me in the course of this
case," and that "[a] s far as that one speaker, quite frankly it would have
been pretty nominal, the impact, given the breadth of information that
was provided to me before sentencing."
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constituting cruel and unusual punishment. We disagree. This court will
not disturb a district court's sentencing determination absent an abuse of
discretion. Parrish v. State, 116 Nev. 982, 989, 12 P.3d 953, 957 (2000).
Bork fails to demonstrate that the district court relied solely on
impalpable or highly suspect evidence or allege that the sentencing
statutes are unconstitutional. See Chavez v. State, 125 Nev. 328, 347-48,
213 P.3d 476, 489-90 (2009). Bork's prison term of 96-240 months falls
within the parameters provided by the relevant statute, see NRS
200.508(1)(a)(2), and the sentence imposed is not so unreasonably
disproportionate to the gravity of the offense as to shock the conscience,
see CuIverson 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). We conclude that the district court did not abuse its discretion at
sentencing.
Third, Bork contends that the district court violated her right
to due process and a fair tribunal by using "publicity about this case for
campaign purposes." Bork takes issue with the district court judge
posting a link on her Facebook page to an article about the sentencing
hearing after the sentenced was imposed. Bork claims that the district
court abused its discretion by denying her motion for resentencing and
that she is entitled to a new sentencing hearing before a different district
court judge. We disagree.
Initially, we note that no statute or court rule provides for an
appeal from an order denying a motion for resentencing, and a challenge
to the denial of the motion is not properly raised in this direct appeal. See
Castillo v. State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990)
(explaining that the right to appeal is statutory; where no statute or court
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rule provides for an appeal, no right to appeal exists). Bork never moved
to disqualify the district court judge, see Towbin Dodge, LLC v. Eighth
Judicial Dist. Court, 121 Nev. 251, 260, 112 P.3d 1063, 1069 (2005) ("[I]f
new grounds for a judge's disqualification are discovered after the time
limits in NRS 1.235(1) have passed, then a party may file a motion to
disqualify based on [NCJC Canon 2, Rule 2.11]."), and a challenge to the
district court's impartiality is not properly raised in this appeal.
Additionally, we are not persuaded that the posting of a link to an article
about Bork's sentencing hearing on the district court judge's Facebook
page, after the sentence was imposed, indicates bias or impropriety. See
Sonner v. State, 112 Nev. 1328, 1335, 930 P.2d 707, 712 (1996) (holding
that a bare allegation of bias is insufficient to rebut the presumption of
impartiality). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
—rPu
to
Parraguirr
J.
J.
Do s
CHERRY, J., dissenting:
I respectfully dissent from the panel's decision to affirm the
judgment of conviction.
The Division of Parole and Probation recommended a prison
term of 53-240 months. Nevertheless, the district court imposed a prison
term of 96-240 months, nearly doubling the minimum prison time Bork
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would be required to serve. In my opinion, this significant upward
departure from the minimum recommended prison term indicates that the
district court was unduly influenced by the unnoticed witness who spoke
in the voice of the victim at the sentencing hearing, and demonstrates
prejudice affecting Bork's substantial rights.
For this reason, I would order full briefing, see NRAP 3C(k);
NRAP 28; NRAP 32, and schedule oral argument.
J.
Cherry
cc: Hon. Stefany Miley, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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