Niergarth v. State

• Decision Date: 22 February 1989
• Docket Number: No. 19167,19167
• Citation: 768 P.2d 882,105 Nev. 26
• Parties: Thomas Leo NIERGARTH, Appellant, v. The STATE of Nevada, Warden, Nevada State Prison, George Deeds, Respondent.
• Court: Nevada Supreme Court

Page 882

768 P.2d 882

105 Nev. 26

Thomas Leo NIERGARTH, Appellant, v. The STATE of Nevada, Warden, Nevada State Prison, George Deeds, Respondent.

No. 19167.

Supreme Court of Nevada.

Feb. 22, 1989.

Thomas L. Niergarth, Southern Desert Correctional Center, Indian Springs, in pro per.

Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., Las Vegas, for respondent.

OPINION ¹

PER CURIAM:

This is a proper person appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas corpus.

On January 4, 1985, appellant was convicted, pursuant to a guilty plea, of one count of robbery with the use of a deadly weapon. Appellant was sentenced to serve two consecutive six-year terms in the Nevada State Prison. On April 4, 1988, appellant filed the instant petition for a writ of habeas corpus in the district court. The district court denied the petition, and this appeal followed.

In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979), and Director, Prisons v. Biffath, 97 Nev. 18, 621 P.2d 1113 (1981), this court held that a sentence for a primary offense and the enhancement sentence for the use of a weapon in the commission of the primary offense should be treated as a single sentence for purposes of computing good time credits and parole eligibility. In Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697 (1987), this court overruled the two Biffath decisions, and held that the primary and enhancement sentences must be treated as separate sentences for all purposes. Further, we directed that our opinion in Bowen "be applied retroactively to the extent possible," but because our opinion was not foreseeable, we stated that "in no case shall this opinion be applied to the detriment of any prisoner sentenced before the date hereof." 103 Nev. at 481 n. 4, 745 P.2d at 700.

In compliance with our opinion in Bowen, the Department of Prisons informed appellant on January 12, 1988, that the prison would continue to treat his two sentences as one under the Biffath decisions because appellant had already appeared before the Parole Board on the combined sentences, and was eligible for an immediate parole to the street. If, however, appellant's sentences were separated and he were granted an institutional parole on the first sentence, he would have to serve one-third of the second sentence before he would be eligible for a parole to the street. Clearly, this would not be in appellant's best interest.

In his petition below, appellant contended that the Department of Prisons had denied him an opportunity for a parole hearing to determine whether he is eligible for a retroactive institutional parole pursuant to Bowen. Specifically, appellant insisted that this court's opinion in Bowen rendered the sentence he is presently serving illegal and that this court ordered the prison authorities "to rectify the error." Appellant argued that the Parole Board has jurisdiction to grant an institutional parole retroactive to the date that appellant might have been eligible for such a parole had his sentences not been aggregated. Appellant concluded that the prison's failure to separate his sentences as required by Bowen denied him an opportunity to appear before the Parole Board to seek a retroactive institutional parole from his first sentence to his second sentence. Finally, appellant suggested that the Department of Prison's failure to follow the mandate of Bowen has rendered it impossible to afford appellant complete relief at this time. Therefore, appellant asserts that he should be immediately released from prison.

In Bowen, we did not declare the sentences appellant is serving to be illegal. Instead, we merely instructed the Department of Prisons to calculate the sentences differently for purposes of determining good time credits, when a prisoner is eligible for parole, and when a sentence is expired. Because a prisoner has no due process right to clemency, a change in the method of determining how a statutory grant of clemency will be administered does not implicate a constitutionally protected interest. See Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369 (1980) (a prisoner has no protectible expectation of release before he has completed his sentence). Also, we did not instruct the Department of Prisons to sever all sentences previously aggregated. Instead, we directed the Department of Prisons to sever aggregated sentences to the extent that such could be done without prejudicing any prisoner. The severance of appellant's sentences...