Sims v. State

814 P.2d 63, 107 Nev. 438, 1991 Nev. LEXIS 121

• Court: Nevada Supreme Court
• Decided: June 27, 1991
• Docket: 20926
• Status: Published

Opinions

OPINION

By the Court,

Steffen, J.:

Appellant Anthony Edward Sims was convicted, pursuant to a jury verdict, of one count of grand larceny. Sims was also adjudged an habitual criminal and sentenced to a term of life without the possibility of parole. The primary issue Sims raises on appeal is whether his sentence is disproportionate to the crime and therefore violative of the Eighth Amendment’s proscription against cruel and unusual punishment. We conclude that Sims was fairly tried, convicted and sentenced and therefore affirm.

The instant grand larceny offense involved the unlawful taking of a purse and wallet containing $476.00. The record reveals ample evidence of Sims’ guilt.

At a post-trial hearing before the lower court, Sims was adjudicated an habitual criminal and sentenced to life imprisonment without the possibility of parole. Citing Solem v. Helm, 463 U.S. 277 (1983), Sims contends that his sentence was disproportionate to the gravity of the underlying offense and his prior criminal history, and that the sentence therefore constituted a violation of the Eighth Amendment’s proscription against cruel and unusual punishment. We disagree.

The Solem court, without purporting to overrule Rummel v. Estelle, 445 U.S. 263 (1980), reacted strongly, albeit by a five to four vote, to a sentence of life without the possibility of parole pronounced upon a criminal defendant whose crimes had been non-violent, never directed against a person, and facilitated by an alcohol component. Nevertheless, the Solem majority observed that “[i]n view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Solem, 463 U.S. at 290 n.16. Moreover, in Rummel the court said that “one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.” Rummel, 445 U.S. at 274. Despite the Solem court’s characterization of the quoted language in Rummel as argument only, the comment concerning the quoted material, set forth in footnote 11 of the Rummel opinion, clearly tends to validate the textual premise.¹ In any event, considering both the rarity with which the Solem-type of appellate review was projected by the Solem court, and the remaining vitality of Rummel, we are persuaded that no Solem analysis is warranted in the instant case.

The district court judge, who is far more familiar with Sims’ criminal background and attitude than the members of this court, sentenced Sims within the parameters of Nevada law. Although we may very well have imposed a different, more lenient sentence, we do not view the proper role of this court to be that of an appellate sentencing body. Moreover, because the Legislature has determined the sentencing limitations and alternatives that our district courts may impose on criminals who habitually offend society’s laws, we deem it presumptively improper for this court to superimpose its own views on sentences of incarceration lawfully pronounced by our sentencing judges. See Rummel v. Estelle, 445 U.S. 263 (1980). In that respect, we note that our prerogatives and responsibilities are different in capital cases where the Legislature has statutorily mandated a sentence review by this court to assure that the sentence of death is not excessive given the defendant and the crime.

Despite what may appear to be an unduly harsh sentence based upon the record before us, the sentence was lawful and presumably consonant with the judge’s perceptions of Sims’ just deserts and the punitive attitude of the community in which the judge serves.² We therefore sustain the judgment of the sentencing court in the sentence imposed on Sims as an habitual offender.

Sims also contends that he was denied a fair trial because of the prosecutor’s comments concerning Sims’ post-arrest silence. Again, we disagree. Our review of the record reflects that the prosecutor only questioned Sims concerning the inconsistencies between Sims’ trial testimony and his statements to the arresting officers.³ Specifically, both Officers Blasko and Guenther testified that Sims admitted that he took the purse. Indeed, Sims admitted during trial that he told the officers that he would show them where the purse was if they would return his cigarettes and let him go. At trial Sims also testified that he knew where the wallet was because he had seen it thrown out of a passing car. The prosecutor had the right to inquire about the inconsistency during his cross-examination of Sims.

For the reasons noted above, we conclude that Sims’ contentions are without merit. We therefore affirm both the judgment of conviction and sentence entered by the district court.

Mowbray, C. J., and Young, J., concur.

1 The referenced footnote reads as follows: “This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime parking a felony punishable by life imprisonment.” Rummel, 445 U.S. at 274 n.11.

2 The sentencing judge was undoubtedly aware of Sims’ extensive criminal history, and concluded from that history that Sims was deserving of the harsh sentence he received. According to the State, Sims had not only committed three prior felonies, including a conviction for armed robbery with use of a deadly weapon, but he had also been arrested forty-one times as an adult, nine of which resulted in misdemeanor convictions. He also had a history of parole violation.

Additionally, we also recognize the very real possibility that Sims will eventually be accorded clemency by the State Board of Pardons. In our recent decision of Smith v. State, 106 Nev. 781, 802 P.2d 628 (1990), we held that the Board of Pardons retains the power under Nevada constitutional and statutory law to commute a sentence of life without the possibility of parole to a sentence allowing for parole. Id. at 784, 802 P.2d at 630. This means that Sims could receive parole consideration after only ten years beyond the ten-year sentence he could have received for the immediate offense of grand larceny.

3 The exchange that Sims characterizes as an improper comment on his post-arrest silence is as follows:

PROSECUTION: So, the fact of the matter is, sir, that this is the first time that we’ve heard this story about the mystery vehicle, the story about the Moulin Rouge—

DEFENSE COUNSEL: Your Honor, I’m going to object. I mean that’s an improper question. This is the first time. This the first time this jury’s sat on this case. He knows that the defendant’s testified consistent with this same version.

PROSECUTOR: I’m going to object to this argument.

COURT: Wait a minute. Arguing with each other isn’t going to help any.

DEFENSE COUNSEL: He’s trying to give the impression, judge, —

COURT: He’s cross-examining him. Objection’s overruled.

PROSECUTOR: The fact of the matter is that you never told the police officers anything like that, isn’t that right, sir?

DEFENDANT: Anything like where I’ve been?

PROSECUTOR: Correct.

DEFENDANT: No, I didn’t tell them nothing.