Mays v. Eighth Judicial Dist. Court In and For County of Clark, 26774

Citation111 Nev. 1172,901 P.2d 639
Decision Date24 August 1995
Docket NumberNo. 26774,26774
PartiesJohn Edward MAYS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, In and For the COUNTY OF CLARK, and the Honorable Donald M. Mosley, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
CourtSupreme Court of Nevada

Donald M. Mosley, District Judge, Respondents,

and

The State of Nevada, Real Party in Interest.

No. 26774.

Supreme Court of Nevada.

Aug. 24, 1995.

Marquis & Aurbach, Las Vegas, for petitioner.

Frankie Sue Del Papa, Attorney General, and Karl W. Armstrong, Deputy Attorney General, Carson City; Edward R.J. Kane, Las Vegas, for respondents.

OPINION

PER CURIAM:

This original petition for a writ of mandamus challenges an order of the district court denying petitioner's motion for a recalculation of sentence credits. We conclude that the district court had an absolute duty to order the Nevada Department of Prisons to credit petitioner with his prior parole and to recalculate his sentence on this basis. Accordingly, we grant the petition for a writ of mandamus.

In July, 1984, petitioner was tried before a jury on three counts of obtaining money under false pretenses. The jury returned a guilty verdict on all three counts, and the district court entered a judgment of conviction. Petitioner was then sentenced to three consecutive eight-year terms in the Nevada State Prison. Petitioner was transferred to the Department of Prisons on August 28, 1984, and he was paroled from his first eight-year sentence on May 29, 1985. He then began serving his second eight-year sentence. On December 12, 1985, pursuant to petitioner's direct appeal, this court vacated the judgment of conviction and remanded the matter for a new trial.

Upon remand, the three counts of obtaining money under false pretenses were consolidated with two additional counts of obtaining money under false pretenses. These five counts were tried before a jury in October, 1987, and the jury found petitioner guilty on all five counts. In November, 1987, the district court sentenced petitioner to three consecutive eight-year terms on the original three counts and to two consecutive five-year terms on the additional two counts. The five-year terms are to run consecutively to the eight-year terms. At the time of sentencing, petitioner was credited with 1,000 days of jail time for his prior incarceration. Petitioner was not, however, given credit for his previous parole; instead, all 1,000 days of petitioner's credit for time served were applied to his first eight-year sentence. Although petitioner was sentenced in November, 1987, the district court did not enter its judgments of conviction until September 1, 1993.

Petitioner filed his notices of appeal from the district court's judgments in proper person, and an attorney was subsequently appointed to represent him. This attorney wrote a letter to then District Judge J. Charles Thompson, who had presided at trial. In this letter, petitioner's attorney noted that when petitioner was resentenced, he did not receive credit for his earlier parole, and with regard to the original three counts of obtaining money under false pretenses, petitioner will actually end up spending more time in jail than if he had not appealed, even though he received the same prison terms on these counts after the second trial. In addition, counsel pointed out that with regard to petitioner's five terms imposed after the second trial, petitioner has expired one eight-year term, has been paroled from his other two eight-year terms, and is now serving the first of two five-year terms.

As a result of this letter, former Judge Thompson requested that this court remand the matter so that he could reconsider petitioner's credit for time served. According to Judge Thompson, the state's attorney representing the Department of Prisons had agreed to work with petitioner's attorney in resolving this issue. The state did not oppose Judge Thompson's request for a remand. On December 14, 1994, we remanded the case to the district court for the limited purpose of reconsidering petitioner's sentencing issues.

On January 8, 1995, Judge Thompson announced his resignation. On the next day, January 9, 1995, petitioner filed a motion for recalculation of sentence credits in the district court. Thereafter, on January 11, 1995, District Judge Nancy Becker entered an order requiring the Department of Prisons to "immediately prepare a recalculation of John Mays' sentence that gives him full credit for a parole received prior to the remand and retrial in this matter."

On January 17, 1995, District Judge Donald M. Mosley held a hearing on petitioner's motion for recalculation. At this hearing, the parties discussed a memorandum that had been prepared by the Department of Prisons. The memorandum assumed that petitioner was given credit for his 1985 parole and set forth approximate parole dates for petitioner's second, third, fourth and fifth terms based upon petitioner's parole history. According to this memorandum, if petitioner had been given credit for his 1985 parole, he would have been eligible for parole from his fifth and last term in approximately March of 1995.

At the hearing, the state's attorney representing the Department of Prisons expressed concern about the memorandum. According to this attorney, the memorandum presumed that petitioner received or will receive parole from each sentence at the earliest possible date. 1 In addition, this attorney opined that no statutory authority authorizes the Department of Prisons or the district court to give petitioner credit for his 1985 parole.

At the hearing's conclusion, Judge Mosley opined that "this parole matter is not a viable argument" and that petitioner should be credited with "the 1000 days or 1000 plus, whatever it is actually calculated to be." Thereafter, on February 2, 1995, the late District Judge William P. Beko signed an order denying petitioner's motion for recalculation of sentence credits. This order, which was prepared by the state's attorney for the Department of Prisons, finds that petitioner "was credited with all the time required under statute and that credit for a prior parole upon resentencing was not contemplated by the present statutory scheme." Additionally, the district court concluded that "no good cause exists to modify [petitioner's] existing sentence structure." The order was filed on February 3, 1995.

Thus, in a nutshell, although this court remanded petitioner's sentencing issues at Judge Thompson's request and with the understanding that the state's attorney for the Department of Prisons would work with petitioner's attorney in resolving these issues, Judge Thompson subsequently retired from the bench, the state's attorney took the firm position that petitioner is not entitled to credit for his 1985 parole, and two different district court judges agreed with the state's position.

On March 10, 1995, petitioner filed the instant petition for a writ of mandamus, in which he challenges the district court's order denying him credit for his prior, 1985 parole. In his petition, petitioner points out that if his current appeal is successful and he is subsequently reconvicted and resentenced to the same terms, he will face an even longer duration in prison under the Department of Prisons' present policy.

On April 18, 1995, in the context of petitioner's direct appeal, this court ordered the state to show cause why petitioner should not be given credit for his 1985 parole and why his current sentence should not be recalculated on that basis. In response to our order, the state asserted that petitioner's second...

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