King (D'vaughn) v. State ( 2014 )

 enhancement term greater than two to six years for the use of a deadly
weapon. The State is held to "the most meticulous standards of both
promise and performance" in fulfillment of both the terms and spirit of the
plea bargain. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215,
1216 (1986) (internal quotation marks omitted). The violation of either
the terms or the spirit of the agreement requires reversal. Id.Here, the plea agreement expressly reserved to the State the
right to argue for consecutive sentencing, as well as for the agreed-upon
term for the deadly-weapon enhancement. The record shows that the
State clearly recommended the agreed-upon term for the deadly-weapon
enhancement. The testimony and exhibit that the State submitted did not
implicitly undermine the State's fulfillment of its commitment but rather
provided context relating to the pre-sentence investigation report and
factual disputes raised by King, without introducing new material
information. See Sullivan v. State, 115 Nev. 383, 389, 990 P.2d 1258,
1261-62 (1999) (holding that a promise to recommend a particular
sentence does not restrict the State from arguing or presenting facts in
favor of its sentence recommendation, although the State must be careful
to avoid explicitly or implicitly undermining that recommendation). The
State's evidence supported the arguments that it was permitted to make
under the plea agreement, without implicitly undermining the agreed
recommendation. Compare id. at 389-90, 990 P.2d at 1261-62 (holding
that an agreement to concur in the parole and probation department's
recommendation did not preclude the State from making comments
intending to support the sentence that the State agreed to recommend),
with Wolf v. State, 106 Nev. 426, 794 P.2d 721 (1990) (holding that a plea
agreement was breached when the State implicitly argued for the
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department of parole and probation's recommendation of a nine-year
sentence after agreeing to argue for a sentence of no more than five years),
and Klutz v. Warden, 99 Nev. 681, 669 P.2d 244 (1983) (holding that the
spirit of a plea agreement was breached when the prosecutor stated that
he entered the plea bargain without knowledge of the defendant's criminal
record, thus implying that he was seeking a longer term than contained in
the agreement). Accordingly, we conclude that the State did not breach
the terms or the spirit of the plea agreement. See Sullivan, 115 Nev. at
387, 990 P.2d at 1260.
We also reject King's argument that the district court abused
its discretion by sentencing him to a term consecutive to his sentence in
California on a separate conviction and by imposing a sentence for the use
of a deadly weapon that significantly deviated from the plea agreement's
recommendation. King has not demonstrated that the district court
abused its discretion in determining that his sentence shall be served
consecutively to his California sentence, see NRS 176.045(1), nor has he
shown that the district court relied only on impalpable or highly suspect
evidence in imposing a consecutive sentence that deviated from the
recommended term in the plea agreement, see Denson v. State, 112 Nev.
489, 492, 915 P.2d 284, 286 (1996). The district court imposed a sentence
within the statutory parameters. See NRS 176.045; NRS 193.165.
Further, the plea agreement stipulated that both parties would be free to
argue the consecutive-sentencing issue, and King acknowledged that the
district court had sole discretion in determining his sentence and that he
was subject to a possible sentencing range for the deadly-weapon
enhancement of one to twenty years. We conclude that the district court
did not abuse its discretion. See Denson, 112 Nev. at 492, 915 P.2d at 286
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(holding that the sentencing judge has wide discretion in imposing a
sentence).
King does not cite authority for his argument that his guilty
plea ceased to be knowing and voluntary because he did not know that the
district court would significantly deviate from the recommended period for
the deadly-weapon enhancement. Accordingly, we need not consider this
claim. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 938
(1978) (holding that contentions unsupported by legal authority need not
be considered on appeal).
Having considered King's contentions and concluded that they
are without merit, we
ORDER the judgment of conviction AFFIRMED.
ie_t±‘
c J.
Hardesty
cc: Hon. Patrick Flanagan, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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