Kirkpatrick v. State, 46319.
| Decision Date | 20 July 2006 |
| Docket Number | No. 46319.,46319. |
| Citation | 137 P.3d 1193 |
| Parties | Ian Scott KIRKPATRICK, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Edwin T. Basl, Reno, for Appellant.
George Chanos, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
Before MAUPIN, GIBBONS and HARDESTY, JJ.
In this appeal, we consider whether the statutory sentencing enhancement for promoting the activities of a criminal gang may be applied to a conviction for conspiracy. We conclude that such a sentencing enhancement is proper.
Appellant Ian Scott Kirkpatrick was originally convicted, pursuant to a guilty plea, of one count of conspiracy to commit murder and one count of assault with a deadly weapon. The district court sentenced Kirkpatrick to concurrent prison terms of 24 to 60 months for the assault and 48 to 120 months for the conspiracy to commit murder. As provided in NRS 193.168(1), the district court also imposed an additional and consecutive term of 48 to 120 months as a gang enhancement for the conspiracy count. The district court suspended the sentence and placed Kirkpatrick on probation for a period not to exceed 5 years. Approximately six months after sentencing, the district court revoked Kirkpatrick's probation, imposing the original sentence. The district court entered an amended judgment of conviction and corrected order revoking probation on October 14, 2005. This timely appeal followed.
Kirkpatrick contends that it was error to apply the statutory gang enhancement to the crime of conspiracy. In Moore v. State, this court held that it was improper to apply the deadly weapon enhancement to a conspiracy conviction because the defendant could not "use" a deadly weapon to commit the crime of conspiracy when no overt act was required.1 We conclude that the holding in Moore does not extend to the gang enhancement. NRS 193.168(1) provides a sentencing enhancement for "any person who is convicted of a felony committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang." Although a defendant cannot "use" a deadly weapon in the act of merely reaching an unlawful agreement, a defendant can certainly reach an unlawful agreement for the benefit of a criminal gang. We therefore conclude that Kirkpatrick's argument is without merit.
Kirkpatrick also contends that the district court erred by denying his motion to modify his sentence. "[A] motion to modify a sentence is limited in scope to sentences based on mistaken assumptions about a defendant's criminal record which work to the defendant's extreme detriment."2 Kirkpatrick argued at the revocation hearing that his sentence should be modified based on various factors: the relative...
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State v. Lucero, 54375.
...modification of a sentence after a probation revocation hearing are reviewed for an abuse of discretion. Kirkpatrick v. State, 122 Nev. 846, 848, 137 P.3d 1193, 1194 (2006). However, we review questions of statutory interpretation de novo. State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588......
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Fear itself: the impact of allegations of gang affiliation on pre-trial detention.
...v. Uribe, 658 F. Supp. 2d 1102 (C.D. Cal. 2009); Ariano v. State, 961 So. 2d 366 (Fla. 4th Dist. Ct. App. 2007); Kirkpatrick v. State, 137 P.3d 1193 (Nev. 2006); Origel-Candido v. State, 956 P.2d 1378 (Nev. (193.) See supra notes 92-94 and accompanying text. (194.) See supra notes 109-10 an......