Johnson (Corey) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
COREY B. JOHNSON, No. 83727
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. AUG 1 1 2022
ELIZABETH A. BROWN
CLERK OF SIPREME COURT
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BY •
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Joseph Hardy, Jr., Judge.' Appellant Corey B. Johnson challenges
the revocation of parole and the computation of his credits.
Johnson first argues that the district court violated his right to
due process when it did not timely hold a preliminary inquiry on his parole
revocation. He argues that he was arrested on April 16, 2020, and that a
hearing was untimely held on May 21, 2020. "Parole and probation
revocations are not criminal prosecutions; the full panoply of constitutional
protections afforded a criminal defendant does not apply." Anaya v. State,
96 Nev. 119, 122, 606 P.2d 156, 157 (1980). Due process in such an instance
requires that a preliminary inquiry into probable cause for revocation be
held "as promptly as convenient after arrest while information is fresh and
sources are available." Morrissey v. Brewer, 408 U.S. 471, 485 (1972). NRS
213.1511 states the inquiry generally must be held "within 15 working days
1Having considered the pro se brief filed by appellant, we conclude
that a response is not necessary, NRAP 46A(c), and that oral argument is
not warranted, NRAP 34(f)(3). This appeal therefore has been decided
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after the arrest." NRS 213.1511(3) (emphasis added). In the time period
between April 1 and June 30, 2020, however, the Governor's Emergency
Directive 009 (Revised) tolled the time to commence a legal action by 30
days where that limit is set by statute or regulation. Emergency Directive
009 (Revised) (April 1, 2020), § 1-2 (giving effect to the directive and
providing that la]ny specific time limit set by state statute or regulation
for the commencement of any legal action is hereby tolled from the date of
this Directive until 30 days from the date the state of emergency declared
on March 12, 2020 is terminated"); see also Emergency Directive 026 (June
29, 2020), § 5 (terminating Emergency Directive 009 (Revised) effective
June 30).
The violation report indicates that Johnson was arrested on
April 16, 2020. But for the emergency tolling, the hearing should have been
held by May 7, 2020. See NRS 241.015(8) (providing that lw]orking day'
means every day of the week except Saturday, Sunday and any day declared
to be a legal holiday pursuant to NRS 236.015" for purposes of Nevada's
Open Meeting Law); Williams v. Clark Cty. Dist. Att'y, 118 Nev. 473, 487,
50 P.3d 536, 545 (2002) (Rose, J., concurring in part and dissenting in part)
(distinguishing "working days" from all calendar days and urging that
c`working" must not be made surplusage). Due to Emergency Directive 009
(Revised), the preliminary inquiry was required to be held by Monday, June
8. See NRAP 26(a)(1) (stating rules for computing time where the method
for counting time is not specified). The summary of the hearing officer's
inquiry and disposition indicates that the inquiry was timely held on May
10, 2020. The district court neglected to count the working days or consider
the emergency tolling in concluding that the deadline in NRS 213.1511(3)
was satisfied. Nevertheless, the district court reached the correct
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disposition in concluding that the preliminary inquiry was not untimely.
See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (affirming a
decision reaching the correct result, albeit on an incorrect basis).
Johnson next argues that his right to due process was violated
when he did not receive notice of the preliminary inquiry, denying him the
opportunity to obtain counsel or present witnesses or supporting
documentation. Due process protections for parole revocations require a
parolee to be provided with notice; the evidence against him; a neutral
arbiter; and opportunities to speak at the hearing, obtain counsel, present
supporting documents, and confront adverse witnesses. See NRS 213.1513;
Morrissey, 408 U.S. at 485-87. The record shows that Johnson received a
copy of his violation report stating the alleged violation of his parole,
specifically that he absconded, and that he received notice of the
preliminary inquiry. The record further shows that Johnson wanted to call
an inmate witness who could not be located and otherwise did not have
supporting evidence or witnesses to present. The record does not show that
Johnson was deprived of opportunities to obtain counsel or present
supporting evidence. The district court therefore did not err in concluding
that Johnson's right to due process was not violated in this regard.
Lastly, Johnson argues that the district court erroneously found
that he absconded from parole and thus erroneously applied a statute in
concluding that he was not eligible to receive credits for the period of
absconding. He argues that he had been reinstated to parole and
accordingly could not be deemed to be an escapee, which may only apply to
inmates. The record shows that Johnson was reinstated to parole on June
25, 2019; was subject to supervision under NRS 213.124; absconded from
supervision on August 22, 2019; and accordingly violated the conditions of
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his parole. Regardless of whether Johnson could assert his status as a
parolee as a defense to a charge of escape, cf. NRS 212.095, being a parolee
is a condition precedent, not a defense, to revocation of parole. And Johnson
did not demonstrate any error in the computation of his credits. See NRS
213.15185(1), (4) (providing that a parolee who has absconded does not
receive credit on his or her sentence for that period of absconding). The
district court therefore did not err in this regard.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.2
C>4'°‘
Parraguirre
Sr.J.
Silver
cc: Hon. Joseph Hardy, Jr., District Judge
Corey B. Johnson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2TheHonorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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