Villa (Richard) v. State ( 2013 )

 whether he would follow the plea negotiations, denied Villa's motion for
own recognizance release, did not fully review letters attesting to Villa's
character, and set Villa's bail at $201,000.
"[A] judge is presumed to be impartial, [and] the burden is on
the party asserting the challenge to establish sufficient factual grounds
warranting disqualification." Ybarra v. State, 127 Nev. „ 247 P.3d
269, 272 (2011) (internal quotation marks omitted), cert. denied, U .S.
, 132 S. Ct. 1904 (2012). We review a district court's decision to grant
or deny a motion for disqualification for abuse of discretion. See Ivey v.
Eighth Judicial Dist. Court, 129 Nev. „ 299 P.3d 354, 358 (2013);
Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009).
Chief Judge Jennifer P. Togliatti considered Villa's pleadings
and Judge Smith's answer and found that "allegations that Judge Smith
interrupted and grilled counsel at the March 6, 2013 hearing, as well as
allegations that Judge Smith did not fully review the materials provided
to him at that time are not sufficient to find that the judge was biased or
prejudiced" and that Judge Smith "was prepared for the hearings in
question and presided over them impartially and with an open mind." The
chief judge concluded that Villa had failed to prove sufficient instances of
bias or conflict to warrant disqualification and denied Villa's motion. The
chief judge's findings are supported by the record and are not clearly
wrong, and we conclude she did not abuse her discretion by denying Villa's
motion for disqualification.
Abuse of discretion at sentencing
Villa contends that the district court abused its discretion at
sentencing by not granting probation because he had no prior criminal
history, provided numerous letters attesting to his character, both the
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State and the Division of Parole and Probation recommended probation,
the spirit of the parties' plea negotiations was entitled to deference, and
the district court relied upon highly suspect evidence at sentencing.
We have consistently afforded the district court wide
discretion in imposing a sentence. See Houk v. State, 103 Nev. 659, 664,
747 P.2d 1376, 1379 (1987). A sentencing "court is privileged to consider
facts and circumstances which clearly would not be admissible at trial."
Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 1159, 1161 (1976). However, we
"will reverse a sentence if it is supported solely by impalpable and highly
suspect evidence." Denson v. State, 112 Nev. 489, 492, 915 P.2d 284, 286
(1996).
Villa's sentence was within the limits imposed by NRS
205.0835(4) and the record belies his claim that the district court relied
solely on highly suspect evidence in reaching its sentencing decision. We
note that the district court has discretion to grant probation, see NRS
176A.100(1)(c), it is not required to follow the sentencing
recommendations of the State or Division of Parole and Probation, see
Collins v. State, 88 Nev. 168, 171, 494 P.2d 956, 957 (1972), and its
sentencing discretion is not bound by the terms of a plea agreement, see
generally Van Buskirk v. State, 102 Nev. 241, 244, 720 P.2d 1215, 1217
(1986). And we conclude that Villa has failed to demonstrate that the
district court abused its discretion at sentencing.
Cruel and unusual punishment
Villa contends that his 24- to 60-month prison sentence is
cruel and unusual because it is disproportionate to the severity of his
crime and does not make a measureable contribution to the acceptable
goals of punishment in his case. However, Villa has not alleged that the
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sentencing statute is unconstitutional, see Blume v. State, 112 Nev. 472,
475, 915 P.2d 282, 284 (1996), his sentence falls within the parameters of
that statute, see NRS 205.0835(4), and we are not convinced that the
sentence is so grossly disproportionate to the gravity of the offense as to
shock the conscience, see Harmelin v. Michigan, 501 U.S. 957, 1000-01
(1991) (plurality opinion); Blume, 112 Nev. at 475, 915 P.2d at 284.
Accordingly, we conclude that the sentence does not violate the
constitutional proscriptions against cruel and unusual punishment.
Having concluded that Villa is not entitled to relief, we
ORDER the judgmept of conviction AFFIRMED.
ibbons
u—ei /4)3 J.
cj Douglas Saitta
cc: Hon. Jennifer P. Togliatti, Chief Judge
Hon. Doug Smith, District Judge
Las Vegas Defense Group, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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