Uceda (Alexander) v. State ( 2014 )

 proponent of Bradyl claim demonstrate that withheld evidence that was
favorable to accused resulted in prejudice); Daniels v. State, 114 Nev. 261,
267, 956 P.2d 111, 115 (1998) (providing that defendant must show that
evidence that police failed to gather was material). Uceda's contention,
that there were numerous inconsistencies in the written statements, was
"merely a hoped-for conclusion." Sheriff v. Warner, 112 Nev. 1234, 1240,
926 P.2d 775, 778 (1996) (quoting Boggs v. State, 95 Nev. 911, 913, 604
P.2d 107, 108 (1979)). As to his Brady claim, the record does not even
indicate that the State was in possession of the witness' statements, thus,
it could not have withheld the statements. See Mazzan, 116 Nev. at 67,
993 P.2d at 37.
Second, Uceda argues that his trial counsel were ineffective
for failing to litigate the issue of the State's failure to preserve potentially
exculpatory evidence. We have consistently declined to consider
ineffective-assistance-of-counsel claims on direct appeal unless the district
court has held an evidentiary hearing on the matter or an evidentiary
hearing would be needless. Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d
519, 534-35 (2001). As neither exception applies here, we decline to
address this claim.
Third, Uceda contends that his conviction for failure to stop on
the signal of a police officer should be reversed because his counsel
improperly conceded his guilt. We disagree. Counsel's argument pointed
out that the driver of the car arguably failed to stop on the signal of a
police officer but that the evidence showed that Uceda was not the driver
of the car. To the extent that he asserts that his counsel was ineffective
'Brady v. Maryland, 373 U.S. 83 (1963).
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for making this argument, we decline to consider this argument.
Pellegrini, 117 Nev. at 883, 34 P.3d at 534-35.
Fourth, Uceda argues that the State committed prosecutorial
misconduct by impermissibly quantifying reasonable doubt. We disagree.
Read in context, the State's argument did not impermissibly attempt to
quantify the reasonable doubt standard. See Evans v. State, 117 Nev. 609,
631, 28 P.3d 498, 514 (2001) ("This court has repeatedly cautioned the
district courts and attorneys not to attempt to quantify, supplement, or
clarify the statutorily prescribed standard for reasonable doubt.").
Instead, the argument permissibly disputed whether the explanations
offered by the defense cast reasonable doubt on the evidence presented.
Where the comments referenced the standard, they directed the jury to
the given reasonable doubt instruction or used language consistent with
that definition. Therefore, Uceda failed to demonstrate that the comments
amounted to plain error affecting his substantial rights. See Valdez v.
State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008).
Fifth, Uceda contends that the police violated the Fourth
Amendment in searching the car prior to obtaining a warrant. We
conclude that Uceda is not entitled to relief on this claim. Uceda failed to
preserve this error for review because he did not file a motion to suppress
in the district court. Consequently, the record on appeal is inadequate for
this court to make a determination about the reasonableness of the search,
see generally State v. Lloyd, 129 Nev. „ 312 P.3d 467, 469 (2013), or
whether Uceda had standing to object to the search, see McKee v. State,
112 Nev. 642, 645, 917 P.2d 940, 942 (1996), and therefore Uceda cannot
establish plain error, see Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95
(2003).
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Sixth, Uceda argues that the district court erred in sentencing
him under the habitual offender statute and that his sentences violate the
Eighth Amendment prohibition against cruel and unusual punishment.
Our review of the record reveals that the district court erred in sentencing
Uceda. According to the judgment of conviction, Uceda was adjudged an
habitual offender and sentenced under that statute for all his convictions.
The district court sentenced him to life without the possibility of parole for
discharging a firearm out of a motor vehicle. This sentence is illegal. The
charge was not one of the listed felonies in NRS 207.012(2) and the record
does not indicate that the State introduced sufficient prior convictions to
support the sentence under NRS 207.010(1)(b). Accordingly, we vacate his
sentence on count 4 and remand for resentencing on that count.
We conclude that Uceda's arguments regarding his remaining
sentences lack merit. Regardless of its severity, a sentence that is 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 that Eighth Amendment does not require strict proportionality
between crime and sentence; it forbids only an extreme sentence that is
grossly disproportionate to the crime). The remaining sentences imposed
are within the parameters provided by the relevant statute, see NRS
207.010(1)(a), and Uceda does not allege that the statute is
unconstitutional. Further, the record does not support Uceda's contention
that the district court believed that habitual criminal adjudication
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pursuant to NRS 207.010 was mandatory. See Clark v. State, 109 Nev.
426, 428, 851 P.2d 426, 427 (1993) ("The decision to adjudicate a person as
a habitual criminal is not an automatic one."). We are not convinced that
the sentences imposed are so grossly disproportionate to the crime and
Uceda's criminal history as to constitute cruel and unusual punishment.
See Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion).
Seventh, Uceda argues that the cumulative effect of errors
during his trial warrant the reversal of his convictions. Because we have
found no error, other than the error for which we are remanding, there is
nothing to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
/C--\GLA Let4- ;
1 J.
Hardesty
CLuormi ,
Cherry
cc: Hon. Douglas Smith, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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