Anthony (Steven) v. State ( 2013 )

 Second, appellant claims that the district court abused its
discretion at the sentencing hearing by basing its sentencing decision on
an emotional reaction to the case and appellant. Specifically, appellant
argues that the district court's comments demonstrate that the imposed
sentence was based upon the judge's own discomfort and disgust and the
fact that the judge was offended by appellant. Appellant did not object
below, therefore we review the district court's conduct for plain error
affecting appellant's substantial rights. See Green v. State, 119 Nev. 542,
545, 80 P.3d 93, 95 (2003). "A judge is presumed to be impartial." Rippo
v. State, 113 Nev. 1239, 1248, 946 P.2d 1017, 1023 (1997). In reviewing
the record, we conclude that the district court's comments show that the
district judge was offended by the facts of the crime committed, and, while
harsh, the comments do not demonstrate that the district court judge had
closed his mind to the presentation of all the evidence and do not rise to
the level of "actual bias or prejudice" under NRS 1.230(1). See Cameron v.
State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998) ("[R]emarks of a
judge made in the context of a court proceeding are not considered
indicative of improper bias or prejudice unless they show that the judge
has closed his or her mind to the presentation of all the evidence.").
Therefore, we conclude that appellant failed to demonstrate plain error.
Third, appellant contends that his sentence of life
imprisonment without the possibility of parole is unconstitutionally
excessive and an abuse of discretion given his lack of significant criminal
history. We have consistently afforded the district court wide discretion in
its sentencing decision, see, e.g., Houk v. State, 103 Nev. 659, 664, 747 P.2d
1376, 1379 (1987), and will refrain from interfering with the sentence
imposed by the district court "[s]o long as the record does not demonstrate
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prejudice resulting from consideration of information or accusations
founded on facts supported only by impalpable or highly suspect evidence,"
Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). And, 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 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) (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).
We conclude that the district court did not abuse its discretion
at sentencing and the sentence imposed is not unconstitutionally excessive
or disproportionate to the crime. The sentence imposed is within the
• statutory parameters, see NRS 200.030(4), and appellant does not allege
that the statute is unconstitutional. We are not convinced by appellant's
argument that the district court relied on impalpable or highly suspect
evidence when it noticed and commented on appellant's actions in
response to a question, and appellant's sentence is not so grossly
disproportionate to his crime as to constitute cruel and unusual
punishment.
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Having considered appellant's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
Parraguirre
Cherry
cc: Hon. David A. Hardy, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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