CASSINELLI (DOMINIC) VS. STATE , 2015 NV 62 ( 2015 )

131 Nev., Advance Opinion 62.
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
DOMINIC SANTINO CASSINELLI, No. 64881
Appellant, FILED
vs.
THE STATE OF NEVADA, AUG 2 7 2015
Respondent. TRACiT K. LINDEMAN!
CLELINFVSORichiN CQL.KRT
BY
RK
Appeal from a judgment of conviction, entered pursuant to an
Alford plea,' of coercion and preventing or dissuading a person from
testifying. Sixth Judicial District Court, Pershing County; Richard
Wagner, Judge.
Affirmed in part, vacated in part, and remanded.
Law Offices of John E Oakes and John E. Oakes, Reno; Richard F.
Cornell, Reno,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; R. Bryce Shields,
District Attorney, Pershing County,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
'North Carolina v. Alford, 400 U.S. 25 (1970).
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OPINION
By the Court, SILVER, J.:
Appellant Dominic Cassinelli pleaded guilty to coercion and
preventing or dissuading a person from testifying. The guilty plea
resulted from allegations made by Cassinelli's long-time girlfriend that he
had sexually abused her. Cassinelli requested the district court to defer
sentencing and assign him to a treatment program for alcohol abuse under
NRS Chapter 458 rather than impose a term of incarceration.
The primary legal issue before this court is whether NRS
458.300(1)(d) precludes eligibility for a drug or alcohol treatment program
for the crime of coercion, where the acts underlying the crime fall within
the definition of domestic violence, but the defendant had not pleaded
guilty to a charged felony "which constitutes domestic violence as set forth
in NRS 33.018." We hold that when determining eligibility to elect a
program of treatment, the district court may only consider the actual
crime the defendant pleaded guilty to or was found guilty of by a jury.
We further determine whether, in this case, the district court
erred by finding Cassinelli ineligible for a treatment program, whether the
district court abused its discretion by denying Cassinelli's motion to elect a
program of treatment under Chapter 458 on alternate grounds, whether
there was prosecutorial misconduct, whether error arises from Cassinelli's
inability to cross-examine the victim during her victim-impact statement,
and whether the sentence imposed is illegal.
We conclude the district court erred by determining that the
acts underlying the crime involved domestic violence and, thereafter,
concluding that Cassinelli was ineligible for a treatment program under
Chapter 458. We nevertheless affirm the district court's decision not to
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assign Cassinelli to a treatment program, as ultimately sentencing is left
to the sound discretion of the district court. We also affirm the district
court on the remaining issues, with the exception of the sentence imposed
on Count II (preventing or dissuading a person from testifying), which we
hold is illegal. We vacate Cassinelli's sentence on Count II and remand
this case only for the district court to resentence him on the gross
misdemeanor.
FACTUAL AND PROCEDURAL HISTORY
Appellant Dominic Cassinelli and the victim were involved in
a romantic relationship from 2006 to 2012. They had two children
together. During that time, Cassinelli was employed as a police officer in
Winnemucca.
At the preliminary hearing, testimony established that the
pair engaged in sadomasochistic sex acts. The victim testified that she
consented in the beginning of the relationship, but over time, the violence
escalated to the point where she no longer wished to participate in
sadomasochistic sex acts. Eventually the victim took the couple's children
and moved away. After the victim discovered that Cassinelli began seeing
another woman, the victim reported to the Winnemucca Chief of Police
that Cassinelli had sexually assaulted her. Although the victim had
accused him of domestic violence in the past, Cassinelli had no convictions
on his record.
The case was referred to the Nevada Division of Investigation.
The victim reported specific incidents of sexual assault, involving
handcuffing, binding, blindfolding with duct tape, and suspension from the
ceiling with harnesses and straps. The victim also reported that
Cassinelli threatened to kill her and pointed a loaded assault rifle and
handgun at her while their children were present. Further, the victim
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advised investigators that the children witnessed Cassinelli sexually
assaulting her. The victim provided investigators with photographs and
an event journal to substantiate her claims.
Prosecutors charged Cassinelli with four counts of sexual
assault; five counts of battery with intent to commit sexual assault or, in
the alternative, domestic battery with strangulation; two counts of abuse,
neglect, or endangerment of a child; two counts of misdemeanor domestic
battery; and two counts of unlawful capture/distribution/display of image
of private area of another.
The parties reached a plea agreement, wherein Cassinelli
entered an Alford plea to coercion, a felony (Count I), and preventing or
dissuading a person from testifying, a gross misdemeanor (Count II). The
parties agreed Count I would not be treated as "sexually motivated."
Further, Count I contained no language in the information reflecting that
the coercion constituted domestic violence. The State agreed it would not
oppose treatment if Cassinelli was eligible for a program of treatment
under Chapter 458. The parties were free to argue during sentencing
regarding punishment with regard to Count II.
At sentencing, Cassinelli requested and the State
recommended to the district court, a program involving treatment under
NRS 458.300 for Count I because it believed Cassinelli was eligible based
upon his evaluation recommending alcohol treatment. The State then
argued for the maximum sentence of 364 days in jail for Count II.
Cassinelli had already spent 279 days in custody. As the final component
of the combined hearing on the motion to elect treatment and sentencing,
the victim addressed the court with her impact statement.
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The district court acknowledged that Cassinelli was eligible
for alcohol treatment under NRS 458.300 but stated "whether that's to be
given is another issue. That's up to me as the judge." The district court,
however, did not subsequently specifically address Cassinelli's request for
a program of treatment under Chapter 458. Instead, the court sentenced
Cassinelli to a prison term of 14-48 months for Count I, and a consecutive
jail term of 364 days for Count II. The court suspended the sentence on
Count II and imposed a three-year term of probation, to run consecutive to
Count I.
Cassinelli appealed, claiming that his sentence was illegally
imposed because the district court failed to adjudicate his motion for
treatment pursuant to NRS 458.290 et seq., prior to imposing sentence.
The parties filed a "Stipulation for Order of Remand," in which the parties
agreed that the record did not reveal that the district court had expressly
adjudicated the motion for election of treatment prior to sentencing
Cassinelli. Because the record revealed the district court had determined
that Cassinelli was eligible for treatment and implicitly denied the motion,
but the record was silent on the basis for the denial, the Nevada Supreme
Court approved the parties' stipulation and remanded the appeal to the
district court for the limited purpose of entering an order explaining its
ruling. Cassinelli v. State, Docket No. 64881 (Order of Limited Remand,
June 11, 2014).
On remand, the district court entered a written "Order
Adjudicating Motion for Election of Treatment." The district court
reconsidered its original position that Cassinelli was eligible for
assignment to a program for alcohol treatment under NRS 458.300. The
district court ruled that the acts underlying Cassinelli's guilty plea
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constituted domestic violence as defined in NRS 33.018. Therefore,
despite the fact Cassinelli pleaded guilty to coercion pursuant to NRS
207.190, the court found that Cassinelli was not eligible to elect a program
of treatment pursuant to NRS 458.300(1)(d). The court further ruled that
even if Cassinelli were eligible for treatment, Cassinelli was not likely to
be rehabilitated through alcohol treatment and was not otherwise a good
candidate for treatment, therefore his motion was denied. We now
consider Cassinelli's direct appeal from his judgment of conviction and
sentence.
ANALYSIS
On appeal, Cassinelli argues that (1) the district court
incorrectly determined that he was not eligible for assignment to a
program of treatment for alcohol abuse under Chapter 458; (2) assuming
he was eligible to elect a program of treatment under Chapter 458, the
district court abused its discretion by denying his motion to elect
treatment; (3) the prosecutor engaged in misconduct during sentencing; (4)
the district court erred by not allowing cross-examination of the victim
after her impact statement to the court; and (5) the sentence the district
court imposed was illegal. For the following reasons, we affirm in part.
The district court erred by ruling that Cassinelli was not eligible for
alcohol treatment under Chapter 458
NRS 458.300(1)(d) provides that a person who is convicted of a
crime that is "Lain act which constitutes domestic violence as set forth in
NRS 33.018" is not eligible for assignment to a program of treatment for
the abuse of alcohol or drugs. Cassinelli argues that nothing in NRS
458.300(1) makes a person ineligible for treatment if convicted of the
crime of coercion pursuant to NRS 207.190. The State counters that
Cassinelli was ineligible under NRS 458.300(1)(d) because the underlying
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facts in this case constitute acts of domestic violence as defined by NRS
33.018(1)(c).
We review questions of statutory interpretation de novo.
Hobbs v. State, 127 Nev. 234, 237, 251 P.3d 177, 179 (2011). In
interpreting a statute, we give the statute its plain meaning and consider
the statute as a whole, awarding meaning to each word, phrase, and
provision. Haney v. State, 124 Nev. 408, 411-12, 185 P.3d 350, 353 (2008).
We strive to avoid rendering any words or phrases superfluous or
nugatory. Id. Nevada's criminal statutes should be interpreted to provide
both fairness and simplicity. NRS 169.035 (also referring to "the
elimination of unjustifiable expense and delay").
Only if the statute is ambiguous do we look beyond the
statute's language to legislative history or other sources to determine the
intent of the statute. Attaguile v. State, 122 Nev. 504, 507, 134 P.3d 715,
717 (2006). Ambiguity arises where the statute's "language lends itself to
two or more reasonable interpretations." State v. Catanio, 120 Nev. 1030,
1033, 102 P.3d 588, 590 (2004). When a criminal statute is ambiguous, we
construe the statute in favor of the accused. Haney, 124 Nev. at 412, 185
P.3d at 353.
The portion of NRS 458.300 at issue here provides:
[A]n alcoholic. . . who has been convicted of a
crime is eligible to elect to be assigned by the court
to a program of treatment for the abuse of alcohol
or drugs . . . unless:
1. The crime is:
(d) An act which constitutes domestic
violence as set forth in NRS 33,018.
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The statute plainly removes from eligibility a person who is
convicted of a crime constituting domestic violence. Less clear is what the
sentencing judge may consider when determining whether the crime is "an
act which constitutes domestic violence."
Cassinelli argues that a district court should only consider the
crime for which the defendant is convicted of in determining eligibility.
The State argues that when determining eligibility, the court may look at
the underlying facts in each case. 2
Both interpretations are reasonable. The language stating
"Mlle crime is. . . [a] n act which constitutes domestic violence" may be
construed as requiring that the actual crime the defendant is convicted of
be delineated in the charging document as "constituting domestic violence"
before a court may preclude eligibility under the statute. NRS
458.300(1)(d) (emphasis added). Yet, because subsection (d) uses the
broader term "act," while the remaining subsections provide that the
disqualifying crime must itself be a "crime" or "offense," an inference is
raised that, in situations where the facts of the crime may fall within the
definition of domestic violence, the sentencing judge may look at the acts
underlying the crime in determining eligibility. Because the language of
the statute supports two reasonable interpretations, we turn to the
legislative history in determining the legislative intent. See Catanio, 120
Nev. at 1033, 102 P.3d at 590 ("Legislative intent is the controlling factor
in statutory construction.").
2We note the State conceded below and at oral argument that, prior
to the district court's ruling on remand, the State believed Cassinelli was
eligible for a treatment program.
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NRS 458.300 was amended in 1975, see 1975 Nev. Stat., ch.
553, § 1, at 971, although the language now found in subsection (1)(d) was
not added until 1995 through Assembly Bill 84. See 1995 Nev. Stat., ch.
157, § 1(1), at 235; Hearing on A.B. 84 Before the Assembly Judiciary
Comm., 68th Leg. (Nev., April 19, 1995); Hearing on A.B. 84 Before the
Senate Judiciary Comm., 68th Leg. (Nev., May 15, 1995). A.B. 84
proposed several amendments to the statute, and the legislative history
makes clear this bill was meant to expand, as opposed to limit, eligibility
for drug and alcohol treatment programs. Hearings on A.B. 84 Before the
Assembly Judiciary Comm , 68th Leg. (Nev., February 6 and 24, 1995). At
several points, legislators referred to A.B. 84 as encompassing persons
who had been charged with or convicted of domestic violence. 3 Hearings
on A.B. 84 Before the Assembly Judiciary Comm., 68th Leg. (Nev.,
February 24 and April 19, 1995); Hearings on A.B. 84 Before the Senate
Judiciary Comm., 68th Leg. (Nev., May 15, 1995). However, it appears the
Legislature wished to exclude defendants who pleaded guilty or were
found guilty of "battery constituting domestic violence" because these
defendants had access to other programs tailored to stop recidivism.
Hearing on A.B. 84 Before the Assembly Judiciary Comm., 68th Leg.
(Nev., April 19, 1995); Hearings on A.B. 84 Before the Senate Judiciary
Comm., 68th Leg. (Nev., May 15, 1995).
3 For example, it was specifically noted that the amendment would
exclude "misdemeanor domestic violence convictions{.]" Hearing on A.B.
84 Before the Senate Judiciary Comm., 68th Leg. (Nev., February 24,
1995).
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Nothing in the legislative history indicates the Legislature
intended for the sentencing judge to consider whether the underlying acts
of a crime constitute domestic violence for the purpose of determining
eligibility. In fact, it appears quite the opposite is true and the
Legislature intended the eligibility determination to be based solely on the
crime with which the defendant was charged with or found guilty of. The
primary focus of A.B. 84 was increasing eligibility for drug and alcohol
treatment programs. The Legislature recognized that plea bargaining
within the criminal justice system is very common and some defendants
would be able to plead down their charges and be eligible for a program of
treatment. Hearings on A.B. 84 Before the Assembly Judiciary Comm.,
68th Leg. (Nev., February 6 and 24, 1995).
Prosecutors are granted the authority to consider each case
individually and charge or negotiate pleas in most criminal cases.
Further, prosecutors consider both the underlying facts of a crime and
punishment sought in negotiating a charge when prosecuting a case
within the system. The Legislature could have precluded plea bargains
that would make an otherwise ineligible defendant eligible for a program
of treatment under Chapter 458, however it did not do so.
Here, the prosecutor plea bargained charges in this case to
coercion without specifically delineating the coercion as constituting
domestic violence. In the guilty plea agreement, the prosecutor
affirmatively agreed not to oppose a program for alcohol treatment if an
evaluation confirmed that Cassinelli was a good candidate for alcohol
treatment pursuant to Chapter 458. At sentencing, based on the
evaluation, the prosecutor affirmatively recommended an alcohol
treatment program with probation on the coercion charge. Even the
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district court believed that Cassinelli was eligible for treatment under this
statute. Thus, the prosecutor, the district court, and Cassinelli all
believed he was eligible for alcohol treatment despite the fact that the
underlying acts involved domestic violence in this case. Moreover,
Cassinelli pleaded guilty to felony coercion. The information and the
guilty plea agreement did not specifically delineate Cassinelli's coercion as
constituting domestic violence, which would have placed all parties on
notice that Cassinelli was ineligible for alcohol treatment under Chapter
458.
We hold that in considering eligibility under NRS
458.300(1)(d), the sentencing judge is limited to considering only the
delineated crime that the defendant pleaded guilty to or was found guilty
of, rather than considering whether the underlying acts involved in the
crime constitute domestic violence. Fairness and due process ensure that
defendants know at the time they plead guilty whether they may be
eligible for a treatment program pursuant to Chapter 458. The prosecutor
has discretion to resolve a criminal charge, including whether to add
language to an information or indictment alleging that the crime itself
constitutes domestic violence. This effectively gives all criminal
defendants notice at the time of pleading guilty whether they may be
eligible for drug and alcohol treatment under NRS 458.300 and removes
any ambiguity otherwise arising from requiring the district court to
determine whether the underlying facts constitute or do not constitute
domestic violence.
Cassinelli pleaded guilty to felony coercion. Cassinelli did not
plead guilty to coercion constituting domestic violence. The State did not
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allege in the information that this coercion constituted domestic violence. 4
During negotiations, and at sentencing, it is clear that Cassinelli, the
State, and the district court, all believed Cassinelli's crime did not
preclude him from eligibility for alcohol treatment under Chapter 458.
Accordingly, the district court's conclusion upon remand that NRS
458.300(1)(d) excluded Cassinelli from eligibility for alcohol treatment was
error.
This conclusion does not end our inquiry, however, because in
this case the district court alternatively denied Cassinelli's request to be
placed in a treatment program pursuant to Chapter 458 because the court
found that he was not likely to be rehabilitated through treatment or was
not otherwise a good candidate for treatment. We note that either basis,
standing alone, is sufficient to deny treatment. We therefore consider
whether the district court abused its discretion by denying Cassinelli's
request below. For the following reasons, we conclude that the district
court did not abuse its discretion by denying Cassinelli's requests on these
bases.
The district court did not abuse its discretion by denying Cassinelli's
request for assignment to a program of treatment
Cassinelli claims that the district court abused its discretion
by denying his request for assignment to a program of treatment on the
We note that the prosecutor purposefully negotiated Cassinelli's
4
charges to coercion without sexual motivation. The prosecutor negotiated
this despite the fact that Cassinelli was originally charged with the crime
of sexual assault. By not alleging that Cassinelli's crime involved a
sexually motivated coercion, this prosecutor used his discretion to
effectively change the penalty involved at sentencing, and Cassinelli, too,
was cognizant of the difference in the penalty at the time he pleaded
guilty.
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basis that he was not likely to be rehabilitated through treatment or was
not otherwise a good candidate for treatment. Cassinelli further asserts
that the district court improperly distinguished between benefiting from a
treatment program and being likely to be rehabilitated through a
treatment program. Cassinelli also argues that the court denied him
entry into a treatment program because he entered an Alford plea and
never admitted guilt. Therefore, the court's decision to sentence him to
prison was based on prejudice and preference. We disagree.
NRS 458.320(2) provides: "If the court, acting on the report or
other relevant information, determines that the person is not an alcoholic
or drug addict, is not likely to be rehabilitated through treatment or is
otherwise not a good candidate for treatment, the person may be
sentenced and the sentence executed." 5 Although the district court
determined that Cassinelli was an alcoholic, it failed to clearly make
separate findings regarding whether Cassinelli was likely to be
rehabilitated or was not otherwise a good candidate. Nevertheless, we
consider in turn the three aspects of the statute in light of the district
court's findings.
The district court reluctantly determined that Cassinelli was an
alcoholic
In making its determination under the statute, the district
court may consider evaluations regarding whether the individual is an
alcoholic or drug addict and is likely to be rehabilitated through
5The legislative history of NRS 458.320 indicates a district court has
discretion when determining whether to grant or deny a motion for notice
of election under this statute. See Minutes, Hearing on A.B. 413 Before
the Assembly Judiciary Comm., 64th Leg. (Nev., April 1, 1987).
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treatment, as well as any other relevant information. NRS 458.310(1);
NRS 458.320(2); see also Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 1159,
1161 (1976) (noting the trial court, at sentencing, "is privileged to consider
facts and circumstances which clearly would not be admissible at trial").
Here, the district court conducted a hearing regarding
eligibility for treatment under NRS 458.300 simultaneously with
Cassinelli's sentencing. In determining whether Cassinelli was an
alcoholic, the district court considered a facility evaluation recommending
placement into an alcohol treatment program.
The district court found, albeit reluctantly, that Cassinelli was
an alcoholic, based upon the testimony at the hearing and the evaluations.
The district court voiced concerns with this designation, citing "some
reservations" arising from the fact that the evaluator was picked by
defense counsel, and the evaluation contained language indicating to
defense counsel that the evaluation could be revised in the manner
defense counsel requested. Despite these concerns, the district court
found Cassinelli to be an alcoholic. Based on the factual findings in the
record, the district court did not abuse its discretion by determining
Cassinelli was an alcoholic.
The district court found that Cassinelli would not likely be
cehabilitated through an alcohol treatment program
The district court conducted a hearing regarding eligibility for
treatment under NRS 458.300 simultaneously with Cassinelli's
sentencing. 6 During that hearing, the district court first correctly
6We take this opportunity to caution district courts against failing to
make specific findings, separate and apart from the sentencing record,
regarding a determination of whether to assign a defendant to a treatment
program pursuant to Chapter 458. Making separate and specific findings
continued on next page...
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distinguished between benefiting and being likely to be rehabilitated. See
NRS 458.320(1) ("If the court. . . determines that the person. . . is not
likely to be rehabilitated through treatment. . . the person may be
sentenced and the sentence executed." (emphasis added)). The district
court concluded, although Cassinelli may benefit from a program of
treatment, that he would not likely be rehabilitated through such
treatment. Most importantly, the district court noted:
Defendant demonstrated little ability to be
rehabilitated. Throughout the sentencing, it
appeared that the Defendant believed he should
have special consideration because he is a "3rd
generation Nevadan" and that his father had a
good reputation as a long-time Reno police officer.
At no time did the Defendant demonstrate any
humility necessary for treatment.
(Emphasis added.) Thus, the district court specifically made findings that
in this case Cassinelli would not likely be rehabilitated from alcohol abuse
if the court assigned Cassinelli to an alcohol treatment program.
The facts and evidence support these findings. Successful
rehabilitation hinges largely on the defendant's state of mind, particularly
the defendant's humility and willingness to take accountability for
alcoholism. However, the presentence investigation report prepared by
the Division of Parole and Probation noted that Cassinelli "does not
believe alcoholic beverages are problematic for him." This was contrary to
...continued
on the record alleviates potential issues and confusion that may otherwise
arise upon appellate review. This is especially true where, as here, the
hearing for assignment to a treatment program was heard along with
Cassinelli's sentencing hearing.
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what Cassinelli otherwise explained to evaluators for the program.
Further, Cassinelli's lack of humility during the hearing and sentencing
strongly indicated that he was not willing to take accountability for his
alcoholism, driving the conclusion that an alcohol treatment program
would be ineffectual. And, as discussed below, Cassinelli's criminal acts
went far beyond the issue of alcohol abuse. We conclude that the district
court did not abuse its discretion by determining that Cassinelli was not
likely to be rehabilitated from the abuse of alcohol and refusing to assign
him to an alcohol treatment program on this basis.
The district court determined that Cassinelli was not otherwise a
good candidate for alcohol treatment in this case
In addition to finding that Cassinelli was not likely to be
rehabilitated by treatment, the district court determined that Cassinelli
was not otherwise a good candidate for a program of treatment.
Importantly, during the hearing, the district court found Cassinelli's
testimony unbelievable and the victim's testimony credible. The court's
order concluded that Cassinelli's criminal acts with firearms involving
sexual, verbal, physical, and child abuse were "of the worst kind" and,
rather than stemming from alcoholism, were grounded in "a man
establishing improper control over a woman by the sexual and mental
abuse that was prevalent in this case." Rather than granting Cassinelli's
request to elect a program of treatment, which would result in the
dismissal of the coercion charge and ultimately seal his record, the district
court, instead, opted to hold Cassinelli accountable for his crime by
sentencing Cassinelli to prison.
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This was not an abuse of discretion. 7 The record supports the
district court's conclusion that Cassinelli was not otherwise a good
candidate for a dismissal with assignment to an alcohol treatment
program. The victim's impact statement reflected multiple instances of
Cassinelli's severe physical, sexual, and verbal abuse. Graphic
photographs and an event journal corroborated the victim's testimony.
Cassinelli appeared to be unaffected by the harm his violent acts caused
the couple's children, who were also present during some of his crimes.
And, because the facility report only concluded that Cassinelli was likely
to benefit from such a program, the district court may have concluded that
Cassinelli was not even eligible because NRS 458.320(1) requires that the
facility determine that the person is likely to be rehabilitated.
We further note that NRS 458.300 does not bar Cassinelli
from a treatment program based on what he pleaded guilty to and because
the district court found that he was an alcoholic. The statute and the
legislative history make clear that the Nevada Legislature recognized that
7 We note that if refusing to permit a person to participate in a
treatment program and sending that person to prison instead constitutes a
more severe sentence, then, because Cassinelli pleaded guilty pursuant to
Alford and maintained his innocence, the district court would have abused
its discretion by considering Cassinelli's lack of remorse in making its
determination that Cassinelli was not otherwise a good candidate for
assignment to an alcohol treatment program. See Brown v. State, 113
Nev. 275, 291, 934 P.2d 234, 245 (1997) ("The district court violated [the
defendant's] Fifth Amendment rights by considering his 'lack of remorse'
when he still had a constitutional right to maintain his innocence and by
threatening to impose a harsher sentence if [the defendant] refused to
admit his guilt."). Because we find that the district court's reliance on
other factors supports the district court's determination that Cassinelli
was not likely to be rehabilitated or was not otherwise a good candidate
for a program of treatment, we need not address this issue.
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defendants who engage in domestic violence are not necessarily good
candidates for alcohol treatment programs because other programs are
available for these offenders. See NRS 458.300(1)(d); Hearing on A.B. 84
Before the Assembly Judiciary Comm., 68th Leg. (Nev., April 19, 1995);
Hearing on KB. 84 Before the Senate Judiciary Comm., 68th Leg. (Nev.,
May 15, 1995). Thus, although Cassinelli was not charged with or
convicted of a crime constituting domestic violence and was technically
eligible for an alcohol treatment program, the actions underlying his crime
involved acts of domestic violence, and thus, the district court did not
abuse its discretion in determining that these facts weighed against
assignment to a treatment program designed to rehabilitate alcoholism as
Cassinelli was not otherwise a good candidate.
In sum, we conclude that the
• district court properly
distinguished between benefiting from an alcohol treatment program and
being likely to be rehabilitated through an alcohol treatment program
Further, the district court's findings that Cassinelli was not likely to be
rehabilitated because he lacked humility and did not take accountability
for his alcoholism, and that he was not an otherwise good candidate for an
alcohol treatment program because of his propensity for violence and
disregard for his children's well-being, are supported by the record.
Accordingly, we conclude that the district court did not abuse its discretion
in declining to assign Cassinelli to an alcohol treatment program.
The plea agreement was not breached and the prosecutor did not engage in
misconduct at sentencing
We next turn to whether the prosecutor breached the plea
agreement at sentencing and whether the prosecutor's actions amounted
to misconduct. Cassinelli claims that the prosecutor committed
misconduct during sentencing by advocating for a jail sentence for his
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conviction on Count II, thereby indirectly recommending a sentence
harsher than that agreed upon in the plea agreement. Cassinelli did not
object to the prosecutor's argument. We disagree with Cassinelli's claim.
We review unpreserved claims of prosecutorial misconduct for
plain error. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477
(2008). Reversal is required if the State has violated either the terms or
the spirit of the plea agreement in exercising its right to argue at
sentencing. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216
(1986).
The plea agreement in this case provided that the State would
not oppose an alcohol treatment program if Cassinelli was eligible for
admission into an alcohol treatment program for Count I. The plea
agreement allowed the parties to argue their position at sentencing
regarding Count II. At sentencing, the prosecutor recommended a
program of treatment for Count I and argued for the maximum sentence
on Count II, asking the court for 364 days' jail time. The guilty plea
agreement expressly allowed for this argument.
Nor did the prosecutor breach the plea agreement with regard
to Count I. Although the prosecutor initially made statements regarding
the gruesomeness of the crimes involved, the judge interrupted the
prosecutor, who proceeded to clarify that his arguments applied to Count
II, preventing or dissuading a person from testifying. The prosecutor
thereafter limited his argument to the facts relating to that crime.
Cassinelli did not object to the prosecutor's argument, and we conclude
that he has failed to demonstrate any error, let alone plain error, because
the prosecutor's argument did "not explicitly or implicitly undercut the
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sentencing recommendation." Sullivan v. State, 115 Nev. 383, 389, 990
P.2d 1258, 1262 (1999); see also Valdez, 124 Nev. at 1190, 196 P.3d at 477.
Accordingly, we conclude that the State did not breach the
spirit of the plea agreement and did not commit misconduct in the manner
alleged.
The district court did not err by refusing Cassinelli an opportunity to cross-
examine the victim during her impact statement at sentencing
Cassinelli next claims that the district court erred by
preventing him an opportunity to cross-examine the victim after her
impact statement at sentencing. Specifically, Cassinelli claims error
stemming from the district court's actions in explaining the procedure
involved in the sentencing We disagree with Cassinelli's interpretation of
the district court's comments, as the record demonstrates that Cassinelli
was never expressly prohibited from cross-examining the victim.
We review unobjected-to conduct for plain error. Valdez, 124
Nev. at 1190, 196 P.3d at 477. NRS 176.015(3)(b) allows a victim to
present, at sentencing, a statement that Irleasonably expresses any views
concerning the crime, the person responsible, the impact of the crime on
the victim and the need for restitution." Where a victim impact statement
refers only to "the facts of the crime, the impact on the victim, and the
need for restitution," a victim testifying as a witness must be sworn in,
"but. . . cross-examination and prior notice of the contents of the impact
statement normally are not required." Busehauer v. State, 106 Nev. 890,
893-94, 804 P.2d 1046, 1048 (1990). Generally, a defendant will already
be aware of the information in the statement and will be able to rebut that
information. Id. at 894, 804 P.2d at 1048. However, when an impact
statement includes references to specific prior acts of the defendant that
fall outside the scope of NRS 176.015(3), "due process requires that the
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accuser be under oath, [and have] an opportunity for cross-examination
and. . . reasonable notice of the prior acts which the impact statement will
contain" must be provided. Id.
Here, the victim prepared an impact statement that was
attached to the presentence investigation report. This statement was
provided to Cassinelli prior to sentencing. At sentencing, after being
sworn in, the victim read aloud to the court the same impact statement
that was attached to the presentence investigation report. The impact
statement was provided to both the court and Cassinelli well in advance of
sentencing, and the statement related the facts of the crimes, addressed
the impact of those crimes on the victim and her children, and concluded
that five years of probation was not enough time to account for Cassinelli's
actions.
Cassinelli did not assert below, nor does he assert on appeal,
that cross-examination of the victim was required because the impact
statement included allegations of prior acts that were not related to the
instant crimes. And, despite receiving an exact copy of the victim impact
statement in advance of sentencing, Cassinelli never objected to the
statement's contents. Cassinelli also never requested to cross-examine the
victim and did not object to her testimony at sentencing.
We conclude, under the circumstances presented, that cross-
examination of the victim regarding her impact statement was not
required. The statement was limited in accordance with NRS 176.015(3),
Cassinelli failed to object to the information in the statement, and
Cassinelli never argued that the victim's statements went beyond the
crimes involved in this case. We also note that Cassinelli has not shown
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any prejudice arising from an inability to cross-examine the victim. 8
Therefore, the district court did not err.°
The sentence was illegal
Finally, we turn to the question of whether Cassinelli's
sentence was illegal. Here, the district court sentenced Cassinelli to serve
a prison term of 14 48 months on Count I. On Count II, the gross
misdemeanor, the district court sentenced Cassinelli to 364 days of jail,
and then the court suspended that sentence and placed Cassinelli on
probation for three years. Because the district court ordered the sentence
for Count II to run consecutive to Count I, Cassinelli's suspended jail
8 Cassinelliimplies, had he been able to cross-examine the victim, he
could have undermined the credibility of her statements. However, we
note that during sentencing, Cassinelli argued to the district court that
the victim only asserted allegations of abuse after she had discovered
Cassinelli was involved with another woman, and Cassinelli presented
witness testimony that the victim had threatened to "bury [Cassinelli] and
take everything he's ever had in his life." Cassinelli was, therefore, able to
attack the victim's credibility. Cassinelli has not shown why, under these
facts, cross-examination would have yielded a different sentence.
9To the extent Cassinelli claims that the district court abused its
discretion by denying his motion to continue the sentencing hearing, we
reject this claim. Initially, we note that Cassinelli made no formal motion
to continue the sentencing. Moreover, to the extent he informally asked
for a continuance, the request did not arise in the context of obtaining the
transcripts to cross-examine the victim. Further, Cassinelli was given
reasonable notice of the contents of the impact statement, and he failed to
demonstrate that he did not have an opportunity to obtain the transcripts
prior to the sentencing hearing. See Higgs v. State, 126 Nev. 1, 9, 222 P.3d
648, 653 (2010) (stating that a court's decision on a motion for a
continuance is reviewed for an abuse of discretion); see also Buschauer,
106 Nev. at 894, 804 P.2d at 1048 (indicating that a continuance may be
necessary if the impact statement "presents significant facts not
previously raised").
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sentence with probation could not occur until after his release from prison
on Count I.
Cassinelli argues that his sentence is illegal pursuant to NRS
176A.500(1) because the probationary period exceeds the three-year time
period prescribed by the statute for probation on a gross misdemeanor.
The State concedes error, and we agree.
NRS 176A.500(1), governing probation and suspension of
sentences, provides, "[t]he period of probation or suspension of
sentence . . . including any extensions thereof, must not be more than: (a)
Three years for a: (1) Gross misdemeanor." Here, the district court
sentenced Cassinelli to 14-48 months (or maximum of four years) on Count
I. Because Cassinelli's maximum prison sentence is four years on Count I,
and the district court sentenced Count II consecutive to Count I, Cassinelli
may not be able to begin probation until after he has served four years in
prison. This clearly exceeds the three-year limit for a probationary period
imposed by NRS 176A.500(1)(a) on a gross misdemeanor.
The Nevada Supreme Court addressed a similar situation in
Wicker v. State, 111 Nev. 43, 888 P.2d 918 (1995). There, Wicker was
convicted of two counts of robbery, rape, and three counts of infamous
crime against nature. Id. at 44, 888 P.2d at 918. The district court
sentenced Wicker to 15 years in prison for robbery and to a consecutive life
sentence for rape, as well as to another 15-year term for a second robbery
count and three consecutive life sentences for three counts of infamous
crime against nature. Id. at 44-45, 888 P.2d at 918. The district court
suspended the last four sentences and placed Wicker on a five-year
probationary period running after parole from prison on the first two
sentences. Id. at 45, 888 P.2d at 918. Years later, after serving his prison
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sentence and while on probation, Wicker violated the terms of his
probation. Appearing before a different district court judge at his
probation revocation hearing, Wicker contested the legality of his original
sentence. Id. at 45, 888 P.2d at 919. That district court held that Wicker's
sentence was illegal pursuant to NRS 176A.500(1). The district court then
removed the period of probation and amended Wicker's judgment of
conviction and sentence. On appeal, the Nevada Supreme Court affirmed.
Id.
The court held that former NRS 176.215(1), now codified as
NRS 176A.500, prohibited a period of probation or suspension of felony
sentences from exceeding five years. Wicker, 111 Nev. at 46, 888 P.2d at
919. The court further reasoned that the statute's limitation period
prevented district courts from having perpetual jurisdiction over a
defendant:
Moreover, the purpose behind the limitation
period in NRS 176.215(1) is to set some sort of
time limit on a district court's power over a
particular defendant. Under a sentencing scheme
such as that imposed. . . the district court could
exercise control over a defendant indefinitely,
depending upon the number and length of
sentences the defendant serves before he is
granted probation.
Id. at 47, 888 P.2d at 920.
Although Wicker's period of probation on the last four
sentences did not exceed five years, the period of suspension did. Id. at 45,
888 P.2d at 919. The court held that Wicker's original sentence conflicted
with the statute and was illegal because "at the time Wicker was sentenced,
the last four sentences were inevitably suspended for more than five
years." Id. at 47, 888 P.2d at 920 (emphasis added).
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Since the court decided Wicker, our Legislature has changed
the criminal sentencing structure. Now, NRS 193.130(1) requires district
courts to pronounce both a minimum and maximum term for most felony
convictions and forbids the courts from imposing a minimum sentence
which exceeds 40 percent of the maximum sentence. Wicker, however, is
still good law and stands for the proposition that a sentence is illegal at its
inception if the sentence's probationary period inevitably exceeds the
statutory maximum." Wicker, 111 Nev. at 47, 888 P.2d at 920; see also
Edwards v. State, 112 Nev. 704, 707-08, 918 P.2d 321, 324 (1996) (holding
that sentences that exceed the statutory maximum are illegal); State v.
Deal, 186 P.3d 735, 736 (Kan. 2008); 21 Am. Jur. 2d Criminal Law § 764
(Supp. 2015). Therefore, although the structure of sentencing criminal
defendants has changed since Wicker, the court's rationale still extends to
Cassinelli's case.
We hold that if any portion of a defendant's criminal sentence
is illegal at the time of the pronouncement of sentencing, whether the
minimum sentence or the maximum sentence, the entire sentence is
illegal. To hold otherwise would force district and appellate courts to
engage in speculation regarding whether a facially illegal sentence might
become legal at some later time depending on whether or not a defendant
"A majority of jurisdictions further hold that illegal sentences are
void. See, e.g., State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995)
("[I]llegal sentences are not subject to the usual requirements of error
preservation and waiver. An illegal sentence is one not authorized by
statute; it is void." (citations omitted)); Summers v. State, 212 S.W.3d 251,
256 (Term. 2007) ("A sentence imposed in direct contravention of a statute
is void and illegal."); Rodriguez v. State, 939 S.W.2d 211, 222 (Tex. Ct.
App. 1997) ("If the punishment is not authorized by law, the order
imposing punishment is void.").
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is granted parole, and if granted, when that parole may occur in the
future. Our holding also prevents district courts from exercising perpetual
jurisdiction over a defendant, contrary to the rationale expressed in
Wickern
Here, the district court sentenced Cassinelli to a prison term
of 14-48 months for Count I. The district court then imposed a consecutive
364-day jail sentence for Count II, a gross misdemeanor. The district
court suspended the jail sentence on Count II, placing Cassinelli on
probation for a term of 36 months (or three years). Because the district
court ran Count II consecutive to Count I, Cassinelli may not be placed on
probation until after his maximum four-year prison sentence runs on
Count I. Because NRS 176A.500(1)(a) limits probation for gross
misdemeanors to three years, there is a possibility Cassinelli would begin
probation after serving his maximum four-year sentence in prison." 2
Therefore the district court violated the statute's limits regarding the term
of probation periods, and thus, Cassinelli's sentence on Count II is illegal.
1 "For this reason, we would caution judges against imposing a
consecutive probationary period for one crime after a prison sentence on a
different count because the period of suspension of probation may violate
the statutory limits.
We recognize that, in very limited circumstances, the suspension of
' 2
probation may not exceed the statutory limitation on either the minimum
or maximum sentence imposed as a defendant may, for a multitude of
reasons, actually receive probation within the time limit set by statute.
However, we do not consider those possibilities when determining whether
the sentence, as pronounced, violates the statute because to do so would be
speculative, rendering any analysis under Wicker difficult if not
impossible, and would run contrary to Nevada law and policy.
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Accordingly, we remand this case for the district court to
impose a sentence on Count II that does not violate NRS 176A.500(1)(a).
We vacate Cassinelli's sentence on Count II and remand this case for
resentencing on Count II only. 13
CONCLUSION
Cassinelli has failed to show reversible error on the majority
of his claims. However, we agree with the parties that Cassinelli's gross
misdemeanor sentence for Count II, dissuading a person from testifying, is
illegal under NRS 176A.500(1). We therefore vacate that sentence and
remand this case for proceedings consistent with this opinion.
J.
Silver
I concur:
Sb
, C.J.
Gibbons
13 Inso doing, we caution the district court to be mindful of the
Nevada Supreme Court's language in Miranda v. State, wherein the court
held that to comply with the Double Jeopardy Clause of the Nevada
Constitution, "a district court may correct an illegal sentence by increasing
its severity only when necessary to bring the sentence into compliance
with the pertinent statute, and a correction that increases sentence
severity is 'necessary' only when there is no other, less severe means of
correcting the illegality." 114 Nev. 385, 387, 956 P.2d 1377, 1378 (1998).
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TAO, J., concurring:
Two aspects of the majority opinion warrant further
explanation. First, the district court concluded (in its "Order Adjudicating
Motion for Election of Treatment," filed June 20, 2014), that, while
Cassinelli might have been an alcoholic, he was "not likely to be
rehabilitated through treatment" under NRS 458.300 because his
underlying problem was not alcoholism but rather a propensity for
violence. Among other things, the district court found the following:
While alcohol played a role in the crimes
committed by Defendant, more significant is the
propensity of the Defendant to commit acts of
domestic violence, acts of sexual perversion on an
unwilling partner, violent acts with the use of
firearms and little regard for his own children
witnessing such acts. Such behavior is not likely to
be corrected by alcohol rehabilitation.
I am inclined to agree with the sentencing court's
characterization of Cassinelli's personality based upon the sentencing
transcript and the abhorrent acts Cassinelli committed against the mother
of his children. But I am not sure that the district court's analysis
represents a precisely correct application of NRS 458.320. NRS 458.320
permits a sentencing court to deny participation in a treatment program if
the court finds that the defendant is not likely to be "rehabilitated"
through the program. But the way I read the plain text of NRS 458.320,
"rehabilitation" refers to rehabilitation from alcoholism, not rehabilitation
from crime, because the treatment program established by NRS 458.300 is
one for the "treatment for the abuse of alcohol or drugs," not treatment for
general criminal behavior or violent tendencies.
In this case, this distinction makes no difference to the
outcome of this appeal because the statute gives the sentencing court wide
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latitude to deny participation to anyone who "is otherwise not a good
candidate" for the program. NIBS 458.320(2). Thus, the district court
properly concluded that, even if a defendant is a good candidate for
rehabilitation from alcoholism, the criminal sentence imposed upon him
need not include participation in a treatment program if his alcoholism
was not the driving force behind his criminal behavior.' Consequently, the
district court did not err in its ultimate conclusion. As a matter of better
practice, however, had the district court found that Cassinelli could
potentially be rehabilitated from his alcoholism but that he was not
otherwise a good candidate for treatment because alcohol was not the
driving force behind the violent crime he committed, its findings would
have more closely mirrored the words of the statute and the intention of
the Legislature.
My second concern arises from the district court's conclusion
that Cassinelli failed to "demonstrate any humility necessary for
treatment." The problem here is that Cassinelli pleaded guilty by way of
North Carolina v. Alford, 400 U.S. 25 (1970). The defining characteristic
of an Alford plea is that, by entering one, a defendant waives his right to
proceed to trial and contest the charges against him, but exercises his
Fifth Amendment privilege not to incriminate himself by admitting factual
guilt. Id. at 35-39. Both the United States Supreme Court and the
Nevada Supreme Court have made clear that a district court cannot
'In fact, the "otherwise not a good candidate" language was
specifically inserted into NRS 458.320(2), see A.B. 413, 64th Leg. (Nev.
1987), in response to concerns that, as previously written without this
language, the statute could be read to require sentencing judges to allow
participation in alcohol treatment so long as the defendant was an
alcoholic even if alcohol had nothing to do with the crime.
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impose a "harsher sentence" based upon a defendant's refusal to either
admit guilt or show remorse when the defendant's plea was by way of
Alford because doing so violates the defendant's Fifth Amendment
privilege against self-incrimination and constitutes an abuse of the
sentencing court's discretion. See Brown v. State, 113 Nev. 275, 291, 934
P.2d 235, 245 (1997); see also Mitchell v. United States, 526 U.S. 314, 327-
28 (1999) (sentencing court cannot draw any adverse inference from a
defendant's choice to stand silently at sentencing).
Yet, as the majority correctly notes, within the field of
psychology generally, and within the field of substance abuse treatment
specifically, expressions of humility and overt admissions of guilt are
frequently considered prerequisites for admission into treatment
programs. Thus, in the absence of a more detailed explanation than that
provided in footnote 7 of the majority opinion, the district court's findings
could potentially be construed by anyone not familiar with this area of the
law to have improperly denied Cassinelli access to such a program because
he chose to plead guilty by way of Alford, thereby receiving a more severe
punishment based upon the exercise of a constitutional right. Therefore, I
write to supply additional clarification as well as future guidance to
district courts tasked with making sentencing determinations involving
NRS 458.300.
As I noted, a court cannot impose a harsher or more severe
sentence upon a defendant for exercising a valid constitutional right,
including rights specifically reserved when the defendant pleads guilty by
way of Alford. See Thomas v. State, 99 Nev. 757, 758, 670 P.2d 111, 112
(1983) (holding that imposing harsher sentence after trial on defendant
who refused to admit guilt was an abuse of discretion because defendant
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retained Fifth Amendment right to refuse to incriminate himself while
appeal was pending and new trial was still a possibility). Whether the
district court did that in this case depends upon whether refusing to
permit Cassinelli to participate in a treatment program and sending him
to prison instead constitutes a more severe sentence, or merely a refusal to
grant leniency to which Cassinelli was not otherwise entitled.
The Nevada Supreme Court has held that the denial of
probation based upon a defendant's exercise of his right to refuse to admit
guilt was not an abuse of discretion because qpirobation is a benefit
provided by the Legislature in certain sex offense cases only if defendants
demonstrate they are not a menace to the health, safety, or morals of
others." Dzul v. State, 118 Nev. 681, 692, 56 P.3d 875, 882 (2002). In
reaching that conclusion, the court distinguished between, on the one
hand, a mere denial of benefits or refusal to grant an act of leniency, and
on the other hand, the imposition of a penalty such as a longer sentence of
years. Citing a series of federal cases, the court noted that while a
sentencing court is constitutionally entitled to refuse to grant leniency in
response to a defendant's exercise of a constitutional right, it could not
impose a harsher penalty for doing so. Id. at 692-93, 56 P.3d at 882-83.
Because criminal defendants are not entitled to receive probation, but may
be granted it as an act of leniency by the sentencing court, no
constitutional error occurs if a court decides not to grant probation to a
defendant who refuses to admit guilt. Id. at 693, 56 P.3d at 883 ("[W]e
conclude that probation is a form of leniency.").
In this case, whether the district court erred in refusing to
allow Cassinelli to participate in an alcohol treatment program due to his
lack of remorse depends upon whether such refusal represented
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imposition of a penalty or a mere denial of leniency or a benefit. This, in
turn, depends upon whether the consequences for a constitutional
invocation operate to deprive a defendant of something to which he is
entitled or rather to simply refuse to give him something to which he is
not otherwise independently entitled. Two contrasting cases are
illustrative. In Minnesota v. Murphy, 465 U.S. 420, 422-23 (1984), the
Supreme Court held that a probation officer could not revoke a defendant
from probation for refusing to confess to a crime where the defendant was
statutorily entitled to remain on probation absent proof of a violation. In
Doe v. Sauer, 186 F.3d 903, 906 (8th Cir. 1999), another court held that an
inmate's privilege against self-incrimination was not violated when his
parole was denied because he refused to participate in a rehabilitation
program that required him to admit guilt because parole is a benefit that
involves relief from a penalty that has already been imposed.
In Dzul, the Nevada Supreme Court adopted this
benefit/penalty analysis. 118 Nev. at 692, 56 P.3d at 882 ("We find the
benefit/penalty analysis persuasive."). Applying this test to the facts of
the instant case, it appears clear that participation in an alcohol
treatment program under NRS 458.300 is a benefit, and refusal to allow
participation is not a penalty. The reasons for this are fairly obvious from
the plain text of the statute. As an initial observation, under NRS
458.350, the State is not even required to establish any facility for
treatment. NRS 458.350 ("The provisions of NRS 458.290 to 458.350,
inclusive, do not require the State or any of its political subdivisions to
establish or finance any facility for the treatment of abuse of alcohol or
drugs."). It should be self-evident that if the State is not required to
establish a treatment program, a defendant is not entitled to enroll in one.
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Furthermore, even if one has been established, the statute provides that
even if the sentencing court deems a defendant worthy of treatment, he
must still be separately accepted by the facility. NRS 458.320(6) ("No
person may be placed under the supervision of a facility under this section
unless the facility accepts the person for treatment."). Thus, no right to
participate in a program is guaranteed because participation can be
denied by people or entities other than the sentencing judge.
Consequently, it appears clear to me that refusing to permit a defendant
to participate in such a program constitutes the denial of a benefit to
which he is not independently entitled, rather than the imposition of a
penalty. Accordingly, I agree with the majority that the district court did
not abuse its discretion by refusing to allow Cassinelli to enter such a
program in part because he would not confess his guilt or display humility
in this case.
Tao
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