Brooks (Kevin) v. State

Nevada Supreme Court

Brooks (Kevin) v. State

DecidedApril 10, 2014

Docket64311

StatusUnpublished

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Bluebook

Brooks (Kevin) v. State, (Neb. 2014).

Pincite

Opinion

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 the Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime). Brooks asserts that he expected to receive a 10-year sentence, but acknowledged in his guilty plea agreement that he had "not been promised or guaranteed any particular sentence by anyone" and that the consequences of his guilty plea permitted the district court to potentially impose a maximum sentence of 20 years. When basing its decision to impose a longer sentence than that stipulated to by the parties, the district court acknowledged Brooks' second psychological evaluation, but chose to rely on Brooks' first psychological evaluation, which determined that Brooks has a high-risk-to-reoffend. The district court also noted Brooks' violent criminal past. Having considered the sentence and the crime, we are not convinced that the sentence imposed is so grossly disproportionate to the gravity of the offense and Brooks' history of recidivism as to constitute cruel and unusual punishment. Further, Brooks' sentence of 6 to 20 years falls within the parameters provided by the relevant statutes, see NRS 193.330(1)(a)(1) (term of 2 to 20 years for attempt to commit sexual assault as defined in NRS 200.366(1), (2)); Chavez v. State, 125 Nev. 328, 347-48, 213 P.3d 476, 489-90 (2009), and Brooks does not allege that those statutes are unconstitutional. We conclude that the district court did not abuse its discretion when sentencing Brooks. Brooks also contends that he signed the plea agreement based on his counsel's false assurance that he would be sentenced to a term of imprisonment of not more than 10 years, resulting in ineffective

SUPREME COURT OF NEVADA 2 (0) 1947A e assistance of counsel As Brooks acknowledges, ineffective-assistance-of- counsel claims generally may not be raised on direct appeal, see Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995), and we decline to consider it here. We conclude Brooks is not entitled to relief and we ORDER the judgment of conviction AFFIRMED.

PitlevAth, ,J Pickering

_ falA J. Parraguirre Saitta

cc: Hon. Douglas W. Herndon, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 <0) 1947A «ID40

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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 the Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime). Brooks asserts that he expected to receive a 10-year sentence, but acknowledged in his guilty plea agreement that he had "not been promised or guaranteed any particular sentence by anyone" and that the consequences of his guilty plea permitted the district court to potentially impose a maximum sentence of 20 years. When basing its decision to impose a longer sentence than that stipulated to by the parties, the district court acknowledged Brooks' second psychological evaluation, but chose to rely on Brooks' first psychological evaluation, which determined that Brooks has a high-risk-to-reoffend. The district court also noted Brooks' violent criminal past. Having considered the sentence and the crime, we are not convinced that the sentence imposed is so grossly disproportionate to the gravity of the offense and Brooks' history of recidivism as to constitute cruel and unusual punishment. Further, Brooks' sentence of 6 to 20 years falls within the parameters provided by the relevant statutes, see NRS 193.330(1)(a)(1) (term of 2 to 20 years for attempt to commit sexual assault as defined in NRS 200.366(1), (2)); Chavez v. State, 125 Nev. 328, 347-48, 213 P.3d 476, 489-90 (2009), and Brooks does not allege that those statutes are unconstitutional. We conclude that the district court did not abuse its discretion when sentencing Brooks. Brooks also contends that he signed the plea agreement based on his counsel's false assurance that he would be sentenced to a term of imprisonment of not more than 10 years, resulting in ineffective