McClain (David) v. State

• Court: Nevada Supreme Court
• Decided: October 17, 2013
• Docket: 63292
• Status: Unpublished

Opinion

hearing, and we conclude that he fails to demonstrate plain error. See Mendoza-Lobos v. State, 125 Nev. 634, 644, 218 P3d 501, 507 (2009) (errors that are "plain" from the record warrant reversal if the appellant can demonstrate the error affected his substantial rights "by causing actual prejudice or a miscarriage of justice" (internal quotations omitted)). 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 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). The record indicates that the district court considered the entire record. It raised concerns regarding the thoroughness of the psychosexual examination because the report did not seem to take McClain's confession into consideration. The district court discussed at length McClain's confession and its concern that McClain was only thinking about his own welfare without considering the victims' welfare. The district court remarked on the discrepancies between the facts and circumstances contained in McClain's confession and the facts and circumstances corroborated by the Division of Parole and Probation as contained in the PSI report when it stated, "Frankly, I tend to give more credence to the victims than to you and your confession." To the extent that McClain argues that the district court abused its discretion by failing to give

...continued NRAP 30(b)(3); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests on appellant.").

SUPREME COURT OF NEVADA 2 (0) 1947A < greater weight to the psychosexual examiner's report, we conclude that this argument lacks merit. See Martinez v. State, 114 Nev. 735, 738, 961 P.2d 143, 145 (1998) (stating district court may "consider a wide, largely unlimited variety of information to insure that the punishment fits not only the crime, but also the individual defendant"). Finally, McClain's consecutive sentences of 8 to 20 years are within the parameters provided by the relevant statutes, see NRS 193.330(1)(a)(1); NRS 201.230(2); NRS 176.035(1). Accordingly, we conclude that the district court did not abuse its discretion, and we ORDER the judgment of conviction AFFIRMED.

Parraguirre

C 641. J. Cherry

cc: Hon. Thomas L. Stockard, District Judge Hon. Robert E. Estes, Senior Judge Troy Curtis Jordan Churchill County District Attorney/Fallon Attorney General/Carson City Churchill County Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A c