184 P.3d 1037 (Nev. 2008), 49346, Douglas v. State

Docket Nº:49346.
Citation:184 P.3d 1037
Opinion Judge:By the Court, CHERRY, J.:
Party Name:Eric Todd DOUGLAS, a/k/a Eric Douglas, Appellant, v. The STATE of Nevada, Respondent.
Attorney:Eric Todd Douglas, Carson City, in Proper Person., Catherine Cortez Masto, Attorney General, and Joseph L. Ward Jr., Chief Deputy Attorney General, Carson City; David J. Roger, District Attorney, Clark County, for Respondent.
Case Date:June 05, 2008
Court:Supreme Court of Nevada
 
FREE EXCERPT

Page 1037

184 P.3d 1037 (Nev. 2008)

Eric Todd DOUGLAS, a/k/a Eric Douglas, Appellant,

v.

The STATE of Nevada, Respondent.

No. 49346.

Supreme Court of Nevada.

June 5, 2008

Page 1038

Eric Todd Douglas, Carson City, in Proper Person.

Catherine Cortez Masto, Attorney General, and Joseph L. Ward Jr. , Chief Deputy Attorney General, Carson City; David J. Roger, District Attorney, Clark County, for Respondent.

BEFORE MAUPIN, CHERRY and SAITTA , JJ.

OPINION

CHERRY , J.:

In this proper person appeal we decide whether NRS 213.1214 provides the State Board of Parole Commissioners (Parole Board) with the authority to require Psychological Panel (Psych Panel) certification prior to a prisoner's release on parole from a sentence involving a nonsexual offense if that prisoner has ever been convicted of a sexual offense.1 Appellant Eric Douglas claimed that the Parole Board violated a statutory duty regarding his parole when it required him to obtain Psych Panel certification, pursuant to NRS 213.1214 , on an offense not enumerated in NRS 213.1214(5) . The State, however, contends that it was proper for the Parole Board to require Psych Panel certification because Douglas was previously convicted of a sex offense.

We disagree with the State and conclude that the district court abused its discretion when it denied Douglas's petition. NRS 213.1214(1) requires a Psych Panel to certify “that the prisoner was under observation while confined in an institution of the Department of Corrections and does not represent a high risk to reoffend based upon a currently accepted standard of assessment." This requirement applies to the enumerated offenses set forth in NRS 213.1214(5) . Significantly, the crime of attempted burglary is not one of the offenses set forth in NRS 213.1214(5) . Moreover, neither NRS 205.060 (burglary) nor NRS 193.330 (punishment for attempts) require appellant to receive Psych Panel certification before he is eligible for parole on his sentence for attempted burglary.

We further reject the State's contention that NRS 213.1214 provides the Parole Board with the broad authority to require Psych Panel certification so long as a prisoner has ever been convicted of a sex offense. To the extent this court's opinion in Stockmeier v. Psychological Review Panel 2 implied that Psych Panel certification is required on the last offense prior to being released into society for anyone ever convicted of a sex offense, regardless of whether the last offense is a sex offense, we now take the opportunity to clarify that Psych Panel certification is required on an offender's last sex offense sentence, whether this will involve a release to the street or an institutional parole to serve a sentence on a nonsexual offense.

FACTS AND PROCEDURAL HISTORY

In June 1996, Douglas was convicted of robbery and attempted sexual assault in district court case number C124118 and was subsequently paroled from his sentence in that case. In February 2005, Douglas committed an attempted burglary while on parole, and as a result, the district court revoked

Page 1039

Douglas's parole for ten months and Douglas returned to prison.

Subsequently, the district court convicted Douglas of one count of attempted burglary in district court case number C210217 and sentenced him to serve a term in the Nevada State Prison of 14 to 48 months, to run consecutively with Douglas's sentence for robbery and attempted sexual assault in district court case number C124118. Shortly thereafter, in October 2005, the Psych Panel recertified Douglas on his attempted sexual assault charge and he was institutionally paroled to serve his sentence in C210217 for attempted burglary.

Douglas was scheduled to appear before the Parole Board on January 23, 2007, seeking to be paroled on the attempted burglary charge. At that hearing, the Parole Board declined to take any action; instead, they informed Douglas that he was required to receive Psych Panel certification and scheduled his Psych Panel review for February 2007. Confused, Douglas contacted a case worker at the prison and complained that he should not be required to undergo a Psych Panel evaluation on his attempted burglary charge because he had already received Psych Panel certification on his attempted sexual assault charge and had been institutionally paroled as to that charge. The case worker responded, “I spoke with the Parole Commissioner office and the new ruling is if you ever had a sex offense (even if it is not what you are currently serving) you must go to the [P]sych [P]anel."

On February 23, 2007, the Psych Panel denied Douglas certification. Douglas then filed a proper person petition for a writ of mandamus in the district court challenging the Parole Board's decision to require Psych Panel certification. Douglas argued that the State violated a statutory duty when it required him to be certified by the Psych Panel on a nonsexual offense before he would be allowed to appear before the Parole Board. The State did not oppose the petition below.3 The district court summarily concluded that NRS 213.1214(2) provided authority for requiring Douglas to obtain Psych Panel certification and denied Douglas's petition. This appeal followed.

DISCUSSION

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.4 We review the district court's denial of a writ petition for an abuse of discretion.5 Douglas contends that the district court abused its discretion when it denied his petition. We agree.

Recertification pursuant to NRS 213.1214

The district court summarily denied Douglas's petition “pursuant to NRS 213.1214(2) ." NRS 213.1214(2) provides that “[a] prisoner who has been certified pursuant to subsection 1 and who returns for any reason to the custody of the Department of Corrections may not be paroled unless a panel recertifies him in the manner set forth in subsection 1." The statutory language addressing recertification is unambiguous and clearly requires recertification only when a prisoner previously convicted of a sex offense receives certification, is paroled to the street, and then returns to the custody of the Department of Corrections. Significantly, Douglas was recertified on the attempted sexual assault offense after his parole was revoked in district court case number C124118 and he was returned to prison. NRS 213.1214(2) does not provide authority for requiring Douglas to obtain yet another Psych Panel certification on his attempted burglary charge. Douglas was institutionally paroled from the sentence imposed in district court case number C124118; thus, he remained in custody and clearly did not “return" to prison for the purposes of certification and parole on his attempted burglary

Page 1040

offense in district court case number C210217. Further, there is no evidence in the record to indicate that the certification on the attempted sexual assault obtained after Douglas returned to prison was ever revoked.6 Therefore, we conclude that the district court's reliance on NRS 213.1214(2) was misplaced as this provision was inapplicable in the instant case.

The State further contends that Psych Panel certification was appropriate in the instant case because certification is not valid in “perpetuity" and may be revoked by the Psych Panel pursuant to NRS 213.1214(3) at any time.7 This argument is irrelevant in the instant case because, as noted above, there is no evidence in the record to suggest that...

To continue reading

FREE SIGN UP