Lader v. Warden

• Decision Date: 06 October 2005
• Docket Number: No. 41895.,41895.
• Citation: 120 P.3d 1164
• Parties: Philip Scott LADER, Appellant, v. Warden, Northern Nevada Correctional Center, David Meligan, Respondent.
• Court: Nevada Supreme Court

Page 1164

120 P.3d 1164

Philip Scott LADER, Appellant, v. Warden, Northern Nevada Correctional Center, David Meligan, Respondent.

No. 41895.

Supreme Court of Nevada.

October 6, 2005.

Charles C. Diaz, Reno, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

OPINION ON REHEARING¹

HARDESTY, J.

The primary issue we address in this appeal is appellant Philip Lader's post-conviction claim that his trial and appellate counsel were ineffective for failing to adequately argue that his two prior felony convictions for driving under the influence of alcohol (DUI) in Nevada could not be used to enhance a subsequent DUI conviction to a felony, pursuant to NRS 484.3792, and in the same criminal proceeding adjudicate him a habitual criminal, pursuant to NRS 207.010. Lader argues that such dual use or "stacking" of prior felony DUI convictions to achieve habitual criminal adjudication is prohibited because NRS 484.3792 provides a specific enhancement scheme for recidivist DUI offenders, while NRS 207.010 provides for a more general habitual criminal determination.

We disagree. NRS 484.3792 and NRS 207.010 are compatible, and neither statute precludes the application of one to the other. Moreover, the argument advanced by Lader would lead to an unreasonable result that is contrary to both the purpose of habitual criminal adjudication and the interests of protecting the public from recidivist DUI offenders. We therefore affirm the district court's denial of Lader's claim on this issue, as well as its denial of several other claims raised by Lader seeking post-conviction relief.

FACTS

Lader has a long history of problems with alcohol and driving. The record reveals that he was first convicted of DUI in 1989 in California and was sentenced to probation and an alcohol program. He was convicted of another DUI in California that year and again sentenced to probation and an alcohol program. In April 1994, he was convicted of a third DUI in Reno—his first felony. He served more than a year in prison for that conviction. In January 1996, he was convicted of a fourth DUI in Reno—his second felony—and was sentenced to a prison term of 26 to 56 months. He was released in July 1998.

On October 23, 1999, Lader was arrested in Reno for his fifth DUI. He was found guilty of a third felony DUI offense after a jury trial on February 2, 2000.² This conviction carried a mandatory prison term of 1 to 6 years.³ At his sentencing hearing the following month, the State admitted, without objection, exhibits of Lader's two prior felony DUI convictions in Nevada. Over the objection of both Lader and his trial counsel, however, the district court adjudicated Lader a habitual criminal and sentenced him to serve a term in prison of 8 to 20 years, which was the maximum sentence it could impose under the law.⁴

Lader filed a direct appeal in this court, which was dismissed.⁵ He filed a post-conviction petition for a writ of habeas corpus in the district court in proper person. The district court later appointed counsel who eventually filed a supplement to the petition. On June 27, 2002, a lengthy hearing was held after which the district court dismissed all of Lader's post-conviction claims except one—whether Lader's prior felony DUI convictions were properly used to enhance his instant DUI conviction to a felony pursuant to NRS 484.3792 and then also to adjudicate him a habitual criminal pursuant to NRS 207.010.

After additional briefing on the matter, the district court issued an order on July 3, 2003, denying Lader relief on this claim, reasoning that the provisions of NRS 484.3792 and NRS 207.010 are fully compatible and lead "to the rational result that a more culpable drunk driver receives greater punishment." This appeal followed.

DISCUSSION

Lader contends on appeal that his two prior felony DUI convictions in Nevada could not be properly used to enhance his instant DUI offense to a felony and, at the same time, adjudicate him a habitual criminal. He refers to the dual use of his prior felony DUI convictions as enhancement "stacking" and maintains that the district court erroneously denied his claim that his trial and appellate counsel were ineffective for failing to adequately raise this issue.

A claim of ineffective assistance of counsel presents a mixed question of law and fact that is subject to independent review.⁶ However, a district court's factual findings will be given deference by this court on appeal, so long as they are supported by substantial evidence and are not clearly wrong.⁷

To establish that counsel's assistance was ineffective, a petitioner must satisfy a two-part test.⁸ First, he must demonstrate that his trial or appellate counsel's performance was deficient, falling below an objective standard of reasonableness.⁹ Second, he must show prejudice.¹⁰ Where the claim involves trial counsel, prejudice is demonstrated by showing that, but for trial counsel's errors, there is a reasonable probability that the result of the proceedings would have been different.¹¹ Where the claim involves appellate counsel, prejudice is demonstrated by showing that an omitted issue had a reasonable probability of success on appeal.¹² Both parts of the test do not need to be considered if an insufficient showing is made on either one.¹³

We have not previously addressed the relation, if any, between NRS 484.3792 and NRS 207.010 as presented under the facts of this case. Other jurisdictions have decided this issue and reached opposite conclusions.¹⁴ Resolution of this dispute requires the court to interpret its own state statutes and is not an issue of constitutional dimension.¹⁵

Statutory interpretation is a question of law subject to independent review.¹⁶ When the language of a statute is clear, we will ascribe to the statute its plain meaning and not look beyond its language.¹⁷ However, when the language of a statute is ambiguous, the intent of the Legislature is controlling.¹⁸ In such instances, we will interpret the statute's language in accordance with reason and public policy.¹⁹

We also keep in mind two maxims of statutory construction. When the scope of a criminal statute is at issue, ambiguity should be resolved in favor of the defendant.²⁰ And when a specific statute is in conflict with a general one, the specific statute will take precedence.²¹

Here, Lader argues that the specific enhancement provisions of NRS 484.3792 supersede the more general enhancement provisions found in NRS 207.010. Because the Legislature provided an internal graduated enhancement scheme for repeat DUI offenders in NRS 484.3792, Lader argues, the Legislature intended to prohibit the dual use or "stacking" of prior felony DUI convictions to achieve both a felony DUI conviction and habitual criminality pursuant to NRS 207.010.²² Rather, he maintains that NRS 484.3792 provides "the exclusive penalty" scheme for DUI offenders, no matter how many DUI convictions a defendant incurs.

The relevant language of NRS 484.3792 provides:

1. Unless a greater penalty is provided pursuant to NRS 484.3795, a person who violates the provisions of NRS 484.379 [proscribing DUI]:

. . . .

(c) For a third or subsequent offense within 7 years, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years. . . .

(Emphasis added.)

Lader focuses our attention on the phrase "third or subsequent offense" and asserts that this language supports his argument. This phrase plainly encompasses any DUI offense after a defendant's second—whether it is his third or thirteenth. Yet, NRS 484.3792 is silent as to whether DUI offenses are to be included or excluded from the purview of NRS 207.010, the habitual criminal statute.

Turning to the relevant language of NRS 207.010, it provides:

1. Unless the person is prosecuted pursuant to NRS 207.012 or 207.014, a person convicted in this state of:

(a) Any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who has previously been two times convicted, whether in this state or elsewhere, of any . . . felony . . . is a habitual criminal and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years.

(Emphasis added.)

We have previously interpreted the meaning of the phrase "any felony" in NRS 207.010(1)(a) to be plain and clear²³ and upheld the application of this habitual criminal statute to a broad range of felony convictions. Nothing in the plain language of NRS 207.010 excludes a felony DUI conviction pursuant to NRS 484.3792 from its purview. Rather, the scope of the phrase "any felony" appears on its face to include a felony DUI.

Although the language of NRS 484.3792 and NRS 207.010 is clear and unambiguous when read in isolation, when read together the two phrases "third or subsequent offense" found in NRS 484.3792 and "any felony" found in NRS 207.010 appear to compete. We conclude that there is no conflict creating an ambiguity.

Adjudication of a defendant as a habitual criminal pursuant to NRS 207.010 was intended to increase and supersede the punishment for a recidivist criminal beyond any sentence he would otherwise face.²⁴ To shield DUI offenders from habitual criminal adjudication, as Lader urges, would thwart the very purpose of NRS 207.010.

Moreover, numerous other criminal statutes in Nevada contain graduated enhancement provisions, many of which employ "subsequent offense" language similar to that found in NRS 484.3792.²⁵ The language and structure of NRS 484.3792 is therefore not unique. Extending Lader's argument to its logical conclusion would mean not only that a recidivist...