IN THE SUPREME COURT OF THE STATE OF NEVADA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF NEVADA MICHAEL ALLEN MULLEN v. Appellant, THE STATE OF NEVADA, Respondent. FAST TRACK RESPONSE CASE NO: Electronically Filed Nov :03 p.m. Tracie K. Lindeman Clerk of Supreme Court 1. Name of party filing this fast track response: The State of Nevada 2. Name, law firm, address, and telephone number of attorney submitting this fast track response: Steven S. Owens Clark County District Attorney s Office 200 Lewis Avenue Las Vegas, Nevada (702) Name, law firm, address, and telephone number of appellate counsel if different from trial counsel: Same as (2) above. 4. Proceedings raising same issues. List the case name and docket number of all appeals or original proceedings presently pending before this court, of which you are aware, which raise the same issues raised in this appeal: None 5. Procedural history. On June 18, 2012, the State of Nevada ( State ) filed an Information charging Appellant Michael Allan Mullen with: Count One Driving and/or Being in Actual Physical Control While Under the Influence of Intoxicating Liquor, a Docket Document

2 category B felony in violation of NRS 484C.110 and 484C.410. AA The Information stated that on or about March 1, 2011 Appellant drove a vehicle while under the influence of intoxicating liquor. AA The Information charged Appellant with a felony under NRS 484C.410 because of Appellant s 2002 DUI felony conviction Case Number C AA On July 10, 2012 Appellant filed a Motion to Withdraw Plea for case number C AA On July 11, 2012 the State filed an Opposition to Appellant s Motion to Withdraw Plea and the district court denied Appellant s Motion to Withdraw Plea on October 17, AA On September 21, 2012 Appellant filed a Motion to Strike Prior Conviction. AA On October 1, 2012 the State filed an Opposition Motion and after argument, on October 17, 2012, the Honorable Judge Douglas Herndon denied the Motion to Strike Prior Conviction. AA ; On April 2, 2013, Appellant plead guilty to felony Driving Under the Influence of an Intoxicating Liquor and filed a Guilty Plea Agreement. AA On August 6, 2013, the district court filed the Judgment of Conviction. AA On August 6, 2013, Appellant timely filed a Notice of Appeal. Appellant filed a Fast Track Statement on August 8, The State s Fast Track Response follows. 2

3 6. Statement of Facts. This case stems from Appellant s decision on March 1, 2011 to drink to the point that he had a blood alcohol level of 0.22, drive intoxicated across Las Vegas, and commit his fifth DUI. AA As stated, Appellant had a long history of DUIs including a DUI felony. AA 185. In 1993, Appellant committed his first DUI misdemeanor. AA 185. Two years later, in 1995, Appellant committed his second DUI misdemeanor, which resulted in an accident. AA 185. In 1995, the Legislature revised the DUI Recidivism statute, NRS 484C.410. The revised 1995 statute enhanced a third or any subsequent DUI infraction committed within seven years to a category B felony. Soon after, in 1996, Appellant committed a third DUI misdemeanor. AA 185. In 2001, Appellant committed his fourth DUI. AA 185. That time, the State, relying on the revised 1995 Recidivism statute, enhanced the Appellant s DUI to a category B felony because of his three prior DUIs within a seven year period. AA In 2005, the Legislature revised the DUI Recidivism statute again and implemented the once a felony always a felony provision. The once a felony always a felony provision removed the seven year window for felony sentencing enhancements and held that any new DUIs would be a felony if the defendant already had a felony DUI conviction. 3

4 Six years after the Legislature s once a felony always a felony revision, Appellant committed his fifth DUI on March 1, 2011 and the State applied the revised Recidivist statute against the Appellant. AA Since the district court convicted Appellant of a felony in 2001, the State enhanced Appellant s latest 2011 DUI to a category B felony. AA Issue on appeal. Whether State s Application of the Enhanced DUI Felony Statute on Appellant s Fifth DUI is Constitutional and Equitable 8. Legal Argument, including authorities: I. The State s Enhancement On A Punishment Based Upon A Statute That Did Not Exist Until After Appellant s Prior Conviction Is Constitutional and Equitable Appellant s enhanced felony sentence on his current and fifth DUI should be upheld. Appellant claims that the revised once a felony always a felony provision under NRS 484C.410 should not apply to him because the Legislature enacted the statute after his prior and triggering DUI felony. FTS 7. Since the revised statute did not exist during his 2001 DUI plea negotiations, Appellant argues that the 2001 plea agreement did not contain language adequately warning him that the State would treat any subsequent DUI as felony. However, Appellant fails to indicate how the State or his trial attorney could have advised him of a law that the Legislature enacted three years after his plea. Principally, the Nevada Supreme Court has specifically rejected appellant s argument. 4

5 In Dixon v. State 103 Nev. 272, 737 P.2d 1162 (1987), this Court addressed the issue of whether a third offense could be enhanced to a felony when the two priors occurred before the enactment of the third offense is a felony statute. Dixon argued that the enhancement would constitute an ex post facto law because, at the time he pled guilty to the priors, he had not been warned that those priors could be used to enhance a subsequent conviction to a felony. This Court rejected Dixon s claim: Finally, the trial court did not err in refusing to suppress evidence of Dixon s two prior misdemeanor convictions on guilty pleas. Waiver forms adequately evidenced a knowing and voluntary waiver of rights, See Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), and the third-offense felony provision is not an ex post facto law simply because Dixon s earlier convictions antedated its enactment. On the day Dixon elected to commit the offense here under consideration, reference to the statute would have indicated precisely the penalty he risked. Dixon, 103 Nev. at 274, 737 P.d at See also English v. State, 116 Nev. 828, 9 P. 3 rd 60 (2000): Accordingly, we conclude that the legislature intended that domestic battery convictions occurring before the effective date of the domestic violence enhancement law may be used for enhancement purposes. English provides no reason, nor can we discern any reason, why the legislature would allow current habitual domestic batterers to avoid immediate enhancement penalties once the domestic violence enhancement law took effect. This law places repeat offenders on notice that they will be charged with a felony if their next charge of domestic battery constitutes a third offense. It would be unreasonable to interpret the law in a way that would allow current habitual domestic batterers to commit two more offenses after January 1, 1998, before their next conviction could be enhanced to a felony under NRS (1)(c). 5

6 Moreover, NRS 484C.410 does not violate the prohibition against ex post facto laws. Both the United States Supreme Court and the Supreme Court of Nevada have held that Recidivist statutes do not violate the ex post facto clause: Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (U.S. 1948) The habitual criminal proceeding is not a separate offense, but is solely to determine facts that if true will increase the punishment. The proceeding does not increase the punishment for that crime for which he has been on trial but merely allows increased punishment for his status as a repeat offender. The penalty is a harsher one for the latest crimes because it is considered that the offender has aggravated his status because he is a repeater. Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed (1948). The enactment of a statute or its amendment which imposes a harsher penalty after prior convictions is not an ex post facto law. Hollander v. Warden, Nev. State Prison, 86 Nev. 369, 373, 468 P.2d 990, 992 (Nev. 1970). A. Appellant Had Adequate Warning That the Legislature Revises Statues and Appellant Was Ultimately Accountable to the Law In Force at the Time He Committed His Most Recent DUI This Court has held that crimes are punishable in accord with the law in force at the time a crime is committed unless the Legislature clearly expresses its 6

7 intent to the contrary. State v. Second Judicial Dist. Court ex rel. County of Washoe, 124 Nev. 564, 571, 188 P.3d 1079, 1084 (2008). (Hereinafter State v. Second) Appellant s inadequate warning claim is without merit because had Appellant consulted NRS 484C.410 prior to committing his latest DUI offense, like Dixon, he would have known precisely what penalty he faced. In fact, Appellant, apprehended in 2011 for this contested DUI felony, had six years to become familiar with the 2005 once a felony always a felony revised statute. Furthermore, since Appellant s 2001 plea agreement did not list either the prior or current Recidivist statute, Appellant should have cleared up his confusion or uncertainty regarding DUI laws by referencing the prevailing statutes. Because of Appellant s consistent DUI convictions, he should have been on notice that DUI laws were evolving to stricter standards and stiffer sentences. Pointedly, in 1993, Appellant was convicted of a DUI misdemeanor. Two years later in 1995, Appellant was convicted of a second DUI misdemeanor, but that time with an accident. Importantly, in 1995, the Legislature revised NRS 484C.410 to hold that a third or subsequent DUI offense in seven years would be a class B felony. This is important because Appellant would have seen the Legislature s stricter posture on DUIs and would have seen that DUI laws were changing. However, if Appellant s second DUI was not enough to warn him of the 7

8 Legislature s tightening standards, Appellant was put on notice with his third DUI in 1996 because the district court applied the revised 1995 class B felony enhancement to his sentencing. Since Appellant consistently received DUIs and personally experienced a revision in DUI sentencing enhancements, Appellant was adequately warned that DUI laws are not static and thus, applying State v. Second, the onus was on Appellant to know the law in force at the time he committed each DUI and specifically his recent DUI. B. Appellant s DUI Felony Sentence Enhancement is a Collateral Consequence of Appellant s Prior DUI Felony This Court has held that the totality of the circumstances must demonstrate that a defendant pleaded guilty with knowledge of the direct consequences of his plea. Nollette v. State, 118 Nev. 341, 344, 46 P.3d 87, 89. Direct consequences are those ramifications that have a definite, immediate and largely automatic effect on the range of the defendant s punishment. Id. Collateral consequences, by contrast, do not affect the length or nature of the punishment and are generally dependent on either the court s discretion, the defendant s future conduct, or the discretion of a government agency. Id. Because collateral consequences of a criminal conviction are often limitless, unforeseeable or personal to the defendant, requiring an advisement with respect to every conceivable collateral consequence would impose upon the trial court an impossible, unwarranted and unnecessary burden. Id. A defendant s awareness of 8

9 a collateral consequence is not a prerequisite to a valid plea and, consequently, may not be the basis for invalidating it. Palmer v. State, 118 Nev. 823, 826, 59 P , Although Appellant initially claimed that his enhanced sentence is not a collateral consequence, Appellant properly asserted thereafter that his enhanced DUI felony sentence is a collateral consequence of Appellant s prior DUI felony. FTS 11. Under Nollette, Appellant s current DUI is a collateral consequence because it does not affect the length or nature of his prior punishment. Therefore, under Palmer, Appellant s 2001 plea remains valid because the Court does not require advisement on unforeseeable collateral consequences, such as Appellant s current enhanced DUI felony sentence. C. Appellant s 2001 Plea Agreement Was Equitable and the State Upheld The Plea Agreement Ordinarily, a claim of equitable estoppel is made out when a person justifiably relies on the conduct of another to their detriment. Foley v. Kennedy, 110 Nev. 1295, 1302, 885 P.2d 583, 587 (1994); citing Helzel v. Mecham Pontiac, 152 Ariz. 58, 730 P.2d 235 (1986). This Court has characterized four elements of equitable estoppel: 1) the party to be estopped must be apprised of true facts; 2) he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has the right to believe it was so intended; 3) the party asserting the estoppel must be ignorant of the true state of facts; and 4) he must have relied 9

10 to his detriment on the conduct of the party to be estopped. Cheqer, Inc. v. Painters and Decorators Joint Committee, Inc., 98 Nev. 609, 614, 655 P.2d 996, 999 (1982). Generally, however, estoppel does not apply against the state in matters affecting governmental functions. Foley v. Kennedy, 110 Nev. 1295, 1302, 885 P.2d 583, 587 (1994). Appellant fails to prove how he relied on the 2001 plea agreement to his detriment. First, the State never promised Appellant that the State would not prosecute him to the full extent of the prevailing law if he committed another DUI. Appellant s plea agreement did not state that he was uniquely accountable only to the 2001 DUI Recidivist statute and would not be responsible for future Legislative revisions. Second, the State did not create any false incentives, false premises, or misleading statements that Appellant could have relied on. The State entered a plea agreement, under the statutes prevailing at that time, and upheld the terms and spirit of that plea agreement. Furthermore, the State, under its statutory duty, entered the 2001 plea agreement with the prevailing laws at that time. There was no way for the State to know that that the Legislature would later draft a statute revision that would trigger a collateral consequence of the 2001 plea agreement. Therefore, under Foley, estoppel does not apply against the State because the State was fulfilling its 10

11 statutory obligation and the Appellant s claim that he detrimentally relied on the 2001 plea agreement is without merit. Appellant, despite being convicted of a prior felony DUI and three previous misdemeanor DUIs, has chosen again to drive drunk and put public safety at risk. Therefore, there is simply no legitimate basis to set aside Appellant s prior plea nor uphold his current enhanced felony DUI sentence. 9. Preservation of the Issue. The issue is preserved. 11

12 VERIFICATION 1. I hereby certify that this fast track response complies with the formatting requirements of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style requirements of NRAP 32(a)(6) because this fast track response has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14 point and Times New Roman style. 2. I further certify that this fast track response complies with the type-volume limitations of NRAP 32(a)(8)(B) because it contains 2,384 words. 3. Finally, I recognize that pursuant to NRAP 3C I am responsible for filing a timely fast track response and the Supreme Court of Nevada may sanction an attorney for failing to file a timely fast track response, or failing to cooperate fully with appellate counsel during the course of an appeal. I therefore certify that the information provided in this fast track response is true and complete to the best of my knowledge, information and belief. Dated this 12 th day of November, Respectfully submitted, STEVEN B. WOLFSON Clark County District Attorney BY /s/ Steven S. Owens STEVEN S. OWENS Chief Deputy District Attorney Nevada Bar # Office of the Clark County District Attorney Regional Justice Center 200 Lewis Avenue P O Box Las Vegas, NV (702)

13 CERTIFICATE OF SERVICE I hereby certify and affirm that this document was filed electronically with the Nevada Supreme Court on November 12, Electronic Service of the foregoing document shall be made in accordance with the Master Service List as follows: CATHERINE CORTEZ MASTO Nevada Attorney General WILLAM B. TERRY, ESQ. Counsel for Appellant STEVEN S. OWENS Chief Deputy District Attorney BY /s/ eileen davis Employee, Clark County District Attorney s Office SSO/Robert Loftus-Intern/ed 13