Anthony (Steven) v. State

• Court: Nevada Supreme Court
• Decided: July 23, 2013
• Docket: 61200
• Status: Unpublished

Opinion

Second, appellant claims that the district court abused its discretion at the sentencing hearing by basing its sentencing decision on an emotional reaction to the case and appellant. Specifically, appellant argues that the district court's comments demonstrate that the imposed sentence was based upon the judge's own discomfort and disgust and the fact that the judge was offended by appellant. Appellant did not object below, therefore we review the district court's conduct for plain error affecting appellant's substantial rights. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). "A judge is presumed to be impartial." Rippo v. State, 113 Nev. 1239, 1248, 946 P.2d 1017, 1023 (1997). In reviewing the record, we conclude that the district court's comments show that the district judge was offended by the facts of the crime committed, and, while harsh, the comments do not demonstrate that the district court judge had closed his mind to the presentation of all the evidence and do not rise to the level of "actual bias or prejudice" under NRS 1.230(1). See Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998) ("[R]emarks of a judge made in the context of a court proceeding are not considered indicative of improper bias or prejudice unless they show that the judge has closed his or her mind to the presentation of all the evidence."). Therefore, we conclude that appellant failed to demonstrate plain error. Third, appellant contends that his sentence of life imprisonment without the possibility of parole is unconstitutionally excessive and an abuse of discretion given his lack of significant criminal history. We have consistently afforded the district court wide discretion in its sentencing decision, see, e.g., Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987), and will refrain from interfering with the sentence imposed by the district court "[s]o long as the record does not demonstrate

SUPREME COURT OF NEVADA 2 (0) 1947A

TaiWilEVIE11111111NM I BEINNEERMIKM! - prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence," Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). And, regardless of its severity, a sentence that is within the statutory limits is not "'cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience." Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining that Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime). We conclude that the district court did not abuse its discretion at sentencing and the sentence imposed is not unconstitutionally excessive or disproportionate to the crime. The sentence imposed is within the • statutory parameters, see NRS 200.030(4), and appellant does not allege that the statute is unconstitutional. We are not convinced by appellant's argument that the district court relied on impalpable or highly suspect evidence when it noticed and commented on appellant's actions in response to a question, and appellant's sentence is not so grossly disproportionate to his crime as to constitute cruel and unusual punishment.

SUPREME COURT OF NEVADA 3 (0) 1947A

MIIMMUEZIES Having considered appellant's claims and concluded that no relief is warranted, we ORDER the judgment of conviction AFFIRMED.

J. Hardesty

Parraguirre

Cherry

cc: Hon. David A. Hardy, District Judge Washoe County Public Defender Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk