State v. Dist. Ct. (Pullin)
| Decision Date | 24 July 2008 |
| Docket Number | No. 50328.,50328. |
| Citation | 188 P.3d 1079 |
| Parties | The STATE of Nevada, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF WASHOE, and the Honorable Jerome M. Polaha, District Judge, Respondents, and Denver Dean Pullin, Real Party in Interest. |
| Court | Nevada Supreme Court |
Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence Patrick McCarthy, Deputy District Attorney, Washoe County, for Petitioner.
Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Real Party in Interest.
BEFORE THE COURT EN BANC.1
In this original petition for a writ of mandamus, we decide whether ameliorative amendments to the deadly weapon enhancement statute (NRS 193.165) apply to offenders who committed their crimes prior to the effective date of the amendments but were sentenced after that date. We conclude that they do not. We further reaffirm the general rule that crimes are punishable in accord with the law in force at the time a defendant commits his crime unless the Legislature clearly expresses its intent to the contrary. We conclude that legislative intent, this court's jurisprudence, and sound public policy reasons mitigate in favor of such a result. Moreover, we conclude that this rule should apply even in the absence of a savings clause.2 Further, we reject Pullin's contention that the retroactive application of the amendments to NRS 193.165 is appropriate here because NRS 193.165 is a procedural or remedial statute. Finally, we conclude that the general rule concerning the retroactive application of changes in criminal law applies equally to both primary offenses and sentence enhancements. Accordingly, we grant the petition and direct the district court to enter an amended judgment of conviction that comports with this decision.
On September 2, 2006, Pullin used a firearm to murder Laurie Jean Lawrence. Subsequently, Pullin pleaded guilty to that offense and the district court set the matter for sentencing. Prior to Pullin's sentencing hearing on September 28, 2007, the Legislature enacted A.B. 510 and altered the sentencing scheme in NRS 193.165 for the deadly weapon enhancement. Prior to sentencing, the parties submitted arguments concerning the application of these newly enacted amendments in the instant case. At the sentencing hearing, the district court heard arguments on the matter and determined that Pullin should be sentenced pursuant to the amendments. The district court then orally imposed a sentence of life without the possibility of parole for first-degree murder with a consecutive sentence of 8 to 20 years for the deadly weapon enhancement. On that same day, the district court entered a judgment of conviction but altered the sentence for the deadly weapon enhancement from the oral pronouncement of 8 to 20 years to a term of 8 to 12 years. The State then filed the instant petition.
"This court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously."3 The writ will issue where the petitioner has no "plain, speedy and adequate remedy in the ordinary course of law."4 The decision to entertain a mandamus petition lies within the discretion of this court, and this court considers whether "judicial economy and sound judicial administration militate for or against issuing the writ."5 "Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification."6 We conclude that writ review is appropriate here because the State does not have the right to appeal from a final judgment of conviction. Further, we conclude that the instant petition presents important issues of law requiring clarification. Therefore, we exercise our discretion to intervene by way of extraordinary writ and address the merits of the petition.
The ameliorative amendments to NRS 193.165
On June 14, 2007, the Legislature enacted A.B. 510,7 which amended several statutes, including NRS 193.165. Specifically, A.B. 510 amended NRS 193.165 to give district court judges broader discretion in determining sentences for violations of that statute by allowing them to impose a consecutive sentence with a minimum term of not less than one year and a maximum term of not more than 20 years.8 Prior to these amendments, NRS 193.165 mandated that a defendant serve an equal and consecutive sentence for the use of a deadly weapon in the commission of the primary offense.9 Significantly, the Legislature listed the effective date of the amendment as July 1, 2007, but failed to indicate whether the amendment would apply retroactively.10 A review of the legislative history similarly reveals no indication that the Legislature intended the amendments to apply retroactively. Rather, it reveals that the issue of retroactivity was only briefly mentioned once during the entirety of the legislative history.11
Relying on this court's previous decisions in Tellis v. State12 and Sparkman v. State,13 the State persuasively argues that because the Legislature expressed no intent to apply the amendments retroactively, the district court erred when it sentenced Pullin under the amended sentencing scheme rather than the one in effect when Pullin committed the offense. We agree with the State's contention and now take this opportunity to reaffirm that unless the Legislature clearly expresses its intent to apply a law retroactively, Nevada law requires the application of the law in effect at the time of the commission of a crime. We further conclude that legislative intent, this court's jurisprudence, and public policy considerations require this rule to apply even in the absence of a savings clause.
Legislative intent and the retroactivity of ameliorative criminal statutes in Nevada
It is well established that under Nevada law, the proper penalty is the penalty in effect at the time of the commission of the offense and not the penalty in effect at the time of sentencing. Both the Legislature and this court have repeatedly evinced their commitment to this sound principle. Three examples of the Legislature's intent in this regard are the savings clause set forth in the Crimes and Punishments Act of 1911;14 the general savings statutes adopted in 1967 as NRS 193.130,15 193.140,16 and 193.150;17 and the savings statute adopted in 1971 as NRS 193.075.18 These statutes indicate a strong legislative intent that the law in effect at the time of the commission of a crime governs the prosecution of criminal offenses.
Preliminarily, we acknowledge that the Legislature amended the general savings clause for felonies (NRS 193.130) in 1995, as part of a movement towards "truth in sentencing"19 and in so doing included language that could be read to remove all category A felonies, as well as felonies where the applicable sentence is set forth elsewhere by specific statute, from the purview of NRS 193.130. NRS 193.130(1) now provides,
Except when a person is convicted of a category A felony, and except as otherwise provided by specific statute, a person convicted of a felony shall be sentenced to a minimum term and a maximum term of imprisonment which must be within the limits prescribed by the applicable statute, unless the statute in force at the time of commission of the felony prescribed a different penalty.
(Emphasis added.) While we recognize that the emphasized language appears to remove certain felonies from the purview of the general savings clause set forth in NRS 193.130, we nevertheless conclude that the general rule concerning retroactivity should apply to all criminally prohibited conduct because, as discussed above, such a result coheres with the Legislature's overall criminal statutory scheme, which has consistently favored such a rule.20 We conclude that it would be incongruous to apply the general rule to the felonies not excluded under NRS 193.130, to all gross misdemeanors under NRS 193.140, and to all misdemeanors under NRS 193.150, but to exclude category A felonies, felonies where another specific statute sets forth the punishment, and sentence enhancements. There is simply no rational basis for applying the general rule in such a piecemeal fashion. Moreover, we conclude that this result is consonant with this court's prior jurisprudence, which we will now examine.
Statutory retroactivity under Nevada caselaw
Beginning with Tellis v. State,21 this court has repeatedly indicated its approval of the general rule set forth above. In that case, Tellis argued that because the Legislature had failed to enact a specific savings clause when it amended the statute in question, the court was "obligated to construe the statute strictly and give him the benefit of the sentence in effect at the time he was convicted and sentenced, notwithstanding the statute carrying a more severe penalty was in force at the time of his arrest."22 We held that the general savings clause set forth in NRS 193.130 prohibited Tellis from being sentenced under ameliorative amendments enacted after he committed his crime. In rejecting this claim, this court determined that it was appropriate to sentence Tellis in accord with the statute in force at the time he committed his crime because the Legislature had enacted a general savings clause, NRS 193.130, which mandated that result.23 The court concluded that because there was a savings clause in effect at the time the district court sentenced Tellis, the district court had appropriately imposed the sentence in force at the time Tellis committed his crime.24
This court revisited the issue of whether ameliorative statutes applied retroactively in Sparkman v. State.25 In that case, Sparkman challenged a judgment of conviction sentencing...
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