White (Cody) v. State ( 2013 )

 or highly suspect evidence," Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
1161 (1976).
White contends that the district court relied upon erroneous
information and failed to understand the nature of an Alford plea because
after imposing sentence it stated "steal people's stuff, go to prison." White
contends that this statement demonstrates that the district court did not
understand that he made no factual admission to stealing when he
entered his Alford plea. We disagree. A guilty plea pursuant to Alford is
a plea of nob o contendere. State v. Gomes, 112 Nev. 1473, 1479, 930 P.2d
701, 705 (1996). A court may treat a defendant who has entered a plea of
nob o contendere "as if he or she were guilty." Id. Therefore, the district
court did not abuse its discretion by proceeding as if White had stolen
something.
White also asserts that the district court abused its discretion
by refusing to consider mitigating evidence. The district court stated that
it received and considered the presentence investigation report, and
listened to defense counsel's argument and White's statement in
allocution, all of which contained mitigating information. The record does
not support White's claim that the district court "refused to consider" any
of this information.
White's sentence of 12-48 months in prison is within the
parameters of the relevant statutes, NRS 193.130(2)(c); NRS 205.222(1),
and he fails to demonstrate that the district court relied upon impalpable
or highly suspect evidence. It was within the district court's discretion to
grant probation or diversion, see NRS 176A.100(1)(c); NRS 458.320, and
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although neither the Division of Parole and Probation nor the State
recommended a prison term, we are not convinced that the district court
abused its discretion in imposing White's sentence, see McCullough v.
State, 94 Nev. 51, 53, 574 P.2d 585, 585 (1978). 2
White additionally argues that the district court's statement,
"steal people's stuff, go to prison," shows that it was biased against
persons who steal in violation of Canons 1 and 2 of the Nevada Code of
Judicial Conduct (NCJC). 3 A district court's impartiality is reviewed de
novo based on the uncontested facts. Ybarra v. State, 127 Nev. „
247 P.3d 269, 272 (2011), cert. denied, U.S. , 132 S. Ct. 1904 (2012).
A judge is presumed to be impartial and the burden rests on the
challenger to demonstrate sufficient facts establishing bias. Id. The
record here does not indicate that the district court "manifest[ed] bias or
prejudice," NCJC Rule 2.3(B), or "closed [its] mind to the presentation of
all the evidence," Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169,
1171 (1998). Nor has White demonstrated that the district court's
2 Tothe extent White contends that his sentence constitutes cruel
and unusual punishment in violation of the Eighth Amendment to the
United States Constitution, we conclude this contention lacks merit. See
Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996); Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion).
3 White actually asserts violations of Canons 2 and 3, but because he
quotes from Canons 1 and 2, it appears the citation to Canon 3 was a
clerical error.
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statement created the appearance of impropriety, see NCJC Rule 1.2,
especially in light of the presumption of impartiality. Accordingly, we
ORDER the judgment of conviction AFFIRMED. 4
,J.
Hardesty
Parraguirre
cc: Hon. William Rogers, District Judge
Law Office of Thomas L. Qualls, Ltd.
Attorney General/Carson City
Lyon County District Attorney
Lyon County District Court Clerk
4We deny White's request to strike several assertions made in the
fast track response for lack of proper citation. See NRAP 3C(f)(1)(C).
Although the assertions are included in the fact and procedural history
sections, many are simply mislabeled arguments that require no citation.
We remind the State, however, that future failure to provide proper
citation may result in the imposition of sanctions. See NRAP 3C(n).
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