Johnson v. Director, Nevada Dept. of Prisons, 19366

• Citation: 105 Nev. 314,774 P.2d 1047
• Decision Date: 01 June 1989
• Docket Number: No. 19366,19366
• Parties: Richard Harris JOHNSON, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, George W. Sumner, Respondent.
• Court: Supreme Court of Nevada

Page 1047

774 P.2d 1047

105 Nev. 314

Richard Harris JOHNSON, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, George W. Sumner, Respondent.

No. 19366.

Supreme Court of Nevada.

June 1, 1989.

Terri S. Roeser, State Public Defender, Jeffrey M. Evans, Deputy Defender, Carson City, for appellant.

Brian McKay, Atty. Gen., Arthur G. Noxon, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

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

On June 2, 1976, appellant was convicted of one count of robbery with the use of a deadly weapon. Appellant was sentenced to seven years for the robbery and to a consecutive seven years for the use of a deadly weapon. See NRS 193.165 (person who uses a deadly weapon in the commission of a crime shall be punished by an additional term in prison equal in length and consecutive to the term of imprisonment for the primary offense). On April 11, 1978, appellant received an institutional parole from his first seven-year sentence to his consecutive seven-year sentence. In May of 1979, appellant was paroled to the street.

Appellant immediately violated his parole by committing another robbery. Consequently, the parole board revoked appellant's parole. ¹ Appellant was convicted of the second robbery and was sentenced to fifteen years for the robbery and a consecutive fifteen years for the use of a deadly weapon in the commission of the robbery. Appellant is presently serving his sentence for the second robbery.

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 deadly 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. Appellant's sentences were recomputed pursuant to these opinions. Thereafter, the parole board and prison officials treated appellant's two consecutive sentences for the first robbery as a single term of imprisonment for all purposes. ²

Appellant was paroled from his combined sentences for his first robbery conviction on August 4, 1984, and began serving his sentences for the second robbery conviction. On February 13, 1986, petitioner expired his combined sentences for his first robbery conviction. On November 20, 1987, almost two years after appellant expired his sentences for the first robbery conviction, this court overruled the Biffath opinions and held that a primary sentence and an enhancement sentence for the use of a deadly weapon must be treated as separate sentences for all purposes. See Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697 (1987).

Appellant speculates that he would have expired his sentences for the first robbery at an earlier date had his sentences been treated as separate sentences pursuant to Bowen rather than as one sentence under the Biffath opinions. ³ Appellant contends, therefore, that his sentences for the first robbery should be recalculated pursuant to Bowen, and the excess time he served "illegally" on those sentences should be credited to the sentences he is presently serving. We disagree.

Although we indicated that our opinion in Bowen should be applied retroactively to the extent possible, that opinion can have no effect on sentences that were legally expired before the date it was issued. In Bowen, we did not declare the method employed by prison officials in computing sentences under the Biffath opinions to be illegal or improper. "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." Niergarth v. Warden, 105 Nev. ----, ----, 768 P.2d 882, 883 (1989). Prison officials acted entirely properly in computing appellant's sentences according to the law as it existed at the time appellant expired his sentences for his first robbery conviction. Further, when appellant expired his sentences, any question as to the method of computing those sentences was rendered moot. ⁴

Appellant also contends that he was denied due process of law when his two seven-year sentences were aggregated under the Biffath opinions, and that prison officials are presently violating his due process rights by refusing to recalculate his prior sentences pursuant to Bowen. We disagree. We have expressly rejected the argument that any prisoner has a due process right to a recalculation of his sentence under Bowen. See Niergarth v. Warden, 105 Nev. 26, ----, 768...