Sasser v. State , 2014 NV 41 ( 2014 )

130 Nev., Advance Opinion 4j I
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEITH SASSER,
Appellant,
No. 60091 FILE
vs. MAY 2 9 204
THE STATE OF NEVADA, TRACE K. LINDE N
CLE OF
Respondent. BY
Appeal from a judgment of conviction, pursuant to a gul;ty
plea, of one count of robbery. Eighth Judicial District Court, Clark
County; David B. Barker, Judge.
Affirmed.
Legal Resource Group, LLC, and T. Augustas Claus, Henderson,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Jonathan VanBoskerck, Chief Deputy
District Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC,
OPINION
By the Court, GIBBONS, C.J.:
After pleading guilty to robbery, appellant Keith Sasser
requested that the district court amend his presentence investigation
report (PSI) prior to sentencing to correct an error. The district court
amended Sasser's PSI in the judgment of conviction, rather than
amending the PSI itself. In this opinion, we address whether the district
court can properly amend a PSI in the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Sasser met Dominique Montenegro at a nightclub in Las
Vegas. He offered to help Montenegro find her friends and indicated that
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he was related to an individual in her group. After they were unable to
find her group, she accepted a ride from him to her friend's house
However, Montenegro alleges that Sasser did not stop the car when they
arrived at her destination. She attempted to get out of the car while it
was still moving but alleges that Sasser grabbed her hair, punched her in
the face, and ran over her foot with his car to prevent her from escaping.
The exact order of events is unclear from Montenegro's statement, but she
alleges the following events occurred: (1) Sasser hit her causing her to lose
consciousness; (2) she awoke outside the vehicle, and saw Sasser going
through her purse; (3) Sasser sexually assaulted her multiple times; (4)
Sasser told her to "[s]hut the [explicit] up," and she thought he was going
to kill her; and (5) Sasser then apologized to her. Eventually, she escaped
and checked into the University Medical Center (UMC).
Sasser pleaded guilty to robbery, pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970). 1 At sentencing, Sasser requested that the
district court amend his PSI to exclude certain information that he alleged
was unsupported. After hearing arguments from both parties, the district
court found that two pages contained unsupported information and struck
part of the conclusion. These stricken portions included: (1) the alleged
threats from Sasser to kill Montenegro, and (2) a dismissed sexual assault
charge against Sasser in an unrelated, subsequent case. The district court
noted these amendments in Sasser's judgment of conviction. Sasser
requested that additional information be stricken, however, the district
'The United States Supreme Court in Alford concluded that a
defendant can enter a plea agreement even though he or she maintains his
or her innocence. 400 U.S. at 38.
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court found sufficient evidence to support the remaining information. The
district court then sentenced Sasser pursuant to his Alford plea to a
minimum of 48 months and a maximum of 120 months. Sasser now
appeals.
DISCUSSION
On appeal, Sasser argues that the district court erred in (1)
amending his PSI in the judgment of conviction, (2) refusing to strike more
information from the PSI, and (3) sentencing him. Initially, we note that a
defendant has a right to object to his PSI and the district court will make
a determination on the PSI information, so long as the defendant objects
to it at the time of sentencing. Stockmeier v. State, Bd. of Parole Comm'rs,
127 Nev. „ 255 P.3d 209, 213-14 (2012); see also NRS 176.156(1).
However, since we have not addressed the specific procedure for amending
a PSI, we take this opportunity to determine whether a district court may
properly amend a defendant's PSI in the judgment of conviction.
The district court did not err in amending Sasser's PSI in his judgment of
conviction
Sasser argues that the district court improperly amended the
PSI with the judgment of conviction rather than returning it to the
Division of Parole and Probation (P&P). 2 We disagree.
2Sasser also argues that it is unclear whether the district court
struck the assertions concerning the subsequent arrest for sexual assault.
We conclude that the judgment of conviction is sufficiently clear to
determine (1) what information the district court intended to strike from
the PSI, and (2) what information the district court found to be
unsupported by evidence.
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In Stockmeier, this court explained that it is important for a
defendant to object to his PSI at the time of sentencing because "Nevada
law does not provide any administrative or judicial scheme for amending a
PSI after the defendant is sentenced." 127 Nev. at , 255 P.3d at 213.
Further, this court acknowledged that "the process by which the district
court must resolve objections to a PSI is not entirely clear." Id. However,
it is clear that "any objections [that the defendant has] must be resolved
prior to sentencing." 3 Id. at , 255 P.3d at 214. But other than
requiring the defendant an opportunity to object, "the Nevada statutes are
silent as to the process to be followed by either. . . [P&P] or the district
court for allowing the defendant to make such objections, or for resolving
the objections, and communicating the resolution to interested parties."
Id. at 255 P.3d at 213-14. Based on this uncertainty, we take this
opportunity to clarify that one way in which a district court may amend a
defendant's PSI is by doing so in the judgment of conviction. 4
3 0ther courts have held that when a court finds inaccurate
information in a defendant's PSI, the district court has other procedures
for amending the PSI instead of revising the actual PSI. State v.
Waterfield, 248 P.3d 57, 59 (Utah Ct. App. 2011) (requiring the district
court to make findings on the record as to the inaccuracies in a defendant's
PSI); State v. Craft, 490 S.E.2d 315, 319 (W. Va. 1997) (requiring the
district court to make a written record of inaccuracies and append it to the
PSI); Fed. R. Crim. P. 32(i)(3)(C) (requiring federal district courts to
append a copy of the court's amendment determinations to the PSI).
4The State asks this court to overturn Stockmeier because of the
burden it places on sentencing judges to amend a defendant's PSI when
the defendant has opportunities prior to sentencing to amend it. We
conclude that this is not a compelling reason to overturn precedent.
Armenta-Carpio v. State, 129 Nev. „ 306 P.3d 395, 398 (2013).
While we acknowledge that amending a defendant's PSI places a burden
continued on next page . . .
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Here, the district court explained its reasoning for amending
Sasser's PSI in the judgment of conviction: "[What's fundamentally
important is that there be accurate information in front of
any. . . subsequent reviewing authority. And the two documents that
follow each individual. . . through the corrective system, are the judgment
of conviction and the PSI."
We conclude that the district court did not err in amending the
PSI in the judgment of conviction. Stockmeier did not specify how a
district court should amend a PSI, so long as it was objected to and
resolved prior to sentencing. The district court properly (1) heard
argument on the defendant's objections, (2) resolved the objections prior to
sentencing, and (3) made a record of its findings on the disputes it chose to
resolve. By including its findings in the judgment of conviction, the
district court effectively ensured that its findings will accompany the PSI
throughout the parole process. 5 See generally NRS 176.159(1) (requiring
courts to cause a copy of PSI to be delivered to Department of Corrections
"not later than when the judgment of imprisonment is delivered pursuant
. . . continued
on district courts, we conclude that district courts are in the best position
to determine whether a defendant's PSI contains impalpable or highly
suspect evidence.
5As a practical matter, the district court's approach in this case has
the same effect as the procedure used in federal court when ruling on a
disputed portion of a presentence report. See Fed. R. Crim. P. 32(i)(3)(C)
(requiring court to append a copy of its determinations regarding disputed
portions of the presentence report to any copy of the report made available
to the Bureau of Prisons).
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to NRS 176.335"); NRS 176.325 (requiring the judgment of conviction "be
furnished to the officers whose duty it is to execute the judgment"); NRS
176.335(2) (requiring sheriff to deliver certified copies of judgment of
conviction to person from Department of Corrections who has been
authorized to receive the prisoner). Therefore, we conclude that the
district court did not err by amending Sasser's PSI in the judgment of
conviction. We further note that this opinion should not be construed to
require the district courts to amend a defendant's PSI through the
judgment of conviction, but simply that it is not error to do so.
The district court struck impalpable or highly suspect information from
Sasser's PSI and only relied on the remaining supported information when
sentencing Sasser
Sasser argues that thefl district court should have stricken
more information in the PSI. Sasser further argues that even though the
district court's judgment of conviction ordered certain sections to be
stricken, it did not actually strike the information in the PSI prior to
sentencing. As a result, Sasser argues that the district court improperly
relied on P&P's recommendation based on the inaccurate information in
the PSI when it sentenced Sasser. 6 We disagree.
6 Sasser also argues that he has a right to parole because "the
Nevada Legislature has . . . created a constitutionally cognizable liberty
interest [in parole] to invoke due process rights." We conclude that this
argument is without merit based on the plain language of NRS 213.10705,
which expressly states that there is no right to parole. To the extent that
Sasser claims that the alleged inaccuracies in his PSI will affect his ability
to receive parole in the future, we conclude that this argument is moot
based on our conclusion that the district court did not err in finding that
the remaining information in Sasser's PSI was not based on impalpable or
highly suspect evidence.
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The district court properly declined to strike information from
Sasser's PSI that was not based on "impalpable and highly suspect
evidence"
"A district court's findings of fact are entitled to deference" on
review. Browning v. State, 124 Nev. 517, 531, 188 P.3d 60, 70 (2008). A
defendant's "PSI must not include information based on 'impalpable or
highly suspect evidence." Stockmeier, 127 Nev. at , 255 P.3d at 213
(quoting Goodson v. State, 98 Nev. 493, 496, 654 P.2d 1006, 1007 (1982));
see also Goodson, 98 Nev. at 496, 654 P.2d at 1007 (holding that
information in a PSI indicating that the defendant was a drug trafficker
was impalpable and highly suspect because it was merely a "bald
assertion" and "unsupported by any evidence whatsoever"). However, this
court will not interfere with the district court's sentence if the defendant
was not prejudiced by the consideration of this impalpable or highly
suspect evidence. Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490
(2009).
Sasser argues that the district court should have stricken
more information in the PSI because the information was "inaccurate,
unsupported by evidence, contradicted by the physical evidence and/or
contradicted by Montenegro's own statements."
Here, in addition to the PSI information regarding alleged
threats to kill Montenegro and Sasser's subsequent sexual assault charge,
which the district court struck, Sasser also objected to the following
information in his PSI: (1) that Sasser had been unemployed since
January 2010; (2) that officers observed that the victim had obvious
bruises around her head and face and a swollen left foot; (3) the Sexual
Assault Nurse Examiner (SANE) report that found significant vaginal
bruising and bleeding; (4) that Sasser pulled the car over in the desert,
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struck the victim several times in the head and face with his fist, and the
victim reported she was knocked unconscious; and (5) the PSI noted the
violent nature of the offense, as well as the injuries inflicted on the victim
through physical and sexual assaults, requiring medical treatment.
In response, the State presented (1) a picture of Montenegro's
injuries; (2) Montenegro's statement to police indicating that Sasser had
hit her in the head; (3) Montenegro's statement that her foot was swelling,
she had abrasions on her knees and foot, and blood on her foot; and (4) a
statement from Montenegro's brother indicating that an officer observed
swelling on her head. Further, regarding Sasser's unemployment, the
State noted that Sasser had "been incarcerated for [some timel." 7
The district court found that sufficient evidence supported the
above allegations and explained that it was most concerned with the
violent nature of the offense based on the photographs provided by both
sides.
We conclude that the district court properly declined to strike
the above information from the PSI because the information was not based
on impalpable or highly suspect evidence. While Sasser did cast some
doubt on the PSI information, the State also provided evidence to support
the information. The district court then had the discretion to decide
whether any of the information was based on impalpable or highly suspect
evidence. Considering the additional evidence presented to the district
7 When
objecting to his PSI, Sasser informed the district court that
he had been employed full-time until February 2010 and was precluded
from employment since then due to incarceration.
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court and Sasser's failure to provide this court with the photographs that
the district court relied on in making its determination, 8 we cannot say
that the district court abused its discretion by concluding that the
information in the PSI was not based on impalpable or highly suspect
evidence.
The district court did not rely on impalpable or highly suspect
evidence when sentencing Sasser
Sasser claims that even though the district court ordered
certain information stricken from the PSI, it did not actually strike the
information prior to sentencing and, as a result, the district court
improperly relied on P&P's recommendation, which was based on the
inaccurate information in the PSI, when it sentenced Sasser. The record
belies this claim.
The district court expressly stated that it would not consider
certain information included in the PSI: (1) the alleged threats to kill
Montenegro, and (2) a dismissed charge of sexual assault in an unrelated
subsequent case against Sasser. Further, when discussing the dismissed
charge, the district court noted:
I'm not going to consider it. It's not—I don't think
it's going to be part of this analysis. Frankly,
there's plenty of violence on the predicate offense
to which Mr. Sasser's indicated he's guilty
8 See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991)
(concluding that if materials are not included in the record on appeal, the
missing materials "are presumed to support the district court's decision"),
rev'd on other grounds by Riggins v. Nevada, 504 U.S. 127 (1992).
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pursuant to the Alford decision. So I'm going
to . . . be very clear here. I'm not going to consider
that.
The judgment of conviction reflects these findings.
We conclude that the district court did not abuse its discretion
when sentencing Sasser because it expressly stated that it would not
consider the information that it struck from the PSI. Its sentencing
decision was based on the violence involved in the charge. The record does
not reflect an abuse of discretion in the district court's decision to sentence
Sasser to prison for a term of 4 to 10 years, a sentence that is well within
the parameters provided by the relevant statute. See NRS 200.380(2)
(providing that a person who is convicted of a robbery, "shall be punished
by imprisonment. . . for a minimum term of not less than 2 years and a
maximum term of not more than 15 years."). 9
CONCLUSION
Although a defendant's PSI is only one of many different
considerations that the district court will evaluate when determining a
defendant's sentence, Stockmeier gives a defendant the right to object to
9 Further,it is important to note that the PSI is only one of many
different considerations that the district court uses when determining the
appropriate sentence for a defendant. For example, the district court
should also consider the arguments from each party during sentencing.
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factual errors in the PSI, so long as he or she objects before sentencing,
and allows the district court to strike information that is based on
impalpable or highly suspect evidence." 127 Nev. at 255 P.3d at 213
(internal quotation marks omitted). The district court then has the
discretion to amend the PSI itself, return it to P&P for amending, or
amend it in the judgment of conviction. Accordingly, we affirm Sasser's
judgment of conviction. 10
Gibbons
:
We concurA
Vieku at J.
Pickering
A • 11 0
Haria
..‘
i =2LIS ACC
H J.
Douglas
, J.
Saitta
thWe have considered the parties' remaining arguments and
conclude they are without merit.
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