State v. Eighth Judicial Dist. In and For Clark County

• Decision Date: 06 February 1984
• Docket Number: No. 13406,No. III,III,13406
• Citation: 100 Nev. 90,677 P.2d 1044
• Parties: The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada In and For the COUNTY OF CLARK, the Honorable Joseph S. Pavlikowski, District Judge, Department, and Seymore Husney, Respondents.
• Court: Nevada Supreme Court

Page 1044

677 P.2d 1044

100 Nev. 90

The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada In and For the COUNTY OF CLARK, the Honorable Joseph

S. Pavlikowski, District Judge,

Department No. III, and

Seymore Husney, Respondents.

No. 13406.

Supreme Court of Nevada.

Feb. 6, 1984.

D. Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., Las Vegas, for petitioner.

Wright, Shinehouse & Stewart, Reid & Alverson, Las Vegas, for respondents.

OPINION

DAVID ZENOFF, Senior Justice. ¹

In this action, the State of Nevada seeks a writ of mandamus to compel the district court to reinstate a sentence originally imposed against respondent, Seymore Husney, after Husney pleaded guilty to one count of an infamous crime against nature, NRS 201.190. The State argues that the district court's modification of sentence after Husney had begun to serve that sentence violated applicable Nevada law. Cf. NRS 176.185(4). We conclude, however, that under the circumstances of this case the district court was within its jurisdiction in so modifying the sentence. Accordingly, we decline to grant the State's plea for extraordinary relief.

In order to address the State's petition, it is essential that we establish the procedural posture of this case. In October, 1979, respondent Seymore Husney entered a plea of guilty pursuant to a plea bargain to one count of an infamous crime against nature, NRS 201.190. ² The indictment under which Husney was charged in essence alleged that in May, 1977, Husney had allowed a female person under the age of 18 years to perform fellatio upon him.

At the time of sentencing, Husney was advised by the court that the potential maximum sentence which he might receive was life imprisonment with the possibility of parole. No evidentiary hearing was conducted at sentencing; instead, the only evidentiary material before the district court concerning the charged offense was contained in a 192-page grand jury transcript. This transcript contained testimony previously elicited from the victims, girls between the ages of 11 and 15 years at the time the charged events occurred, detailing the alleged involvement of several men, including Husney, in sexual misconduct. The lengthy transcript was compiled during several separate sessions of the grand jury, during which a number of witnesses testified. As this was a grand jury proceeding, Husney was neither present nor afforded an opportunity to cross-examine witnesses.

In addition to the grand jury transcript, the district court had before it a presentence report prepared by the Department of Parole and Probation, and a psychiatric evaluation prepared by Dr. J.A. Jurasky, director of the Psychiatric and Psychological Center located in Las Vegas. Both the presentence report and the psychiatric evaluation concluded that Husney's deep remorse, absence of any prior criminal record, and previously irreproachable position in the community made Husney a suitable candidate for probation. In the psychiatric evaluation Dr. Jurasky also noted that Husney was "not by nature or personality an immoral person or one who normally takes advantage of or preys upon others." Dr. Jurasky emphasized that Husney had suffered "enormous" pain and humiliation as a result of his actions, and concluded that he would "not constitute a menace to the health, safety, or morals of others."

Despite the favorable recommendations contained in the presentence report and psychiatric evaluation, Husney was denied probation. After argument by counsel for the State and for Husney, the district court judge stated that he had read the grand jury transcript and had come to the conclusion that Husney had committed "a great wrong." Husney was then sentenced to life imprisonment with the possibility of parole.

The judgment of conviction was subsequently signed by the district court judge, filed in the clerk's office, and Husney began serving his sentence at the Nevada State Prison. Shortly thereafter, Husney filed a timely appeal with this court. At the same time, however, Husney filed a motion in the district court seeking a modification and reduction of his sentence. In this motion, Husney contended that the district court judge had misapprehended or had been misinformed as to relevant information presented at the sentencing hearing, and asked that his sentence be modified to allow release on probation.

After litigation on procedural issues which do not require discussion here, the district court ruled on Husney's motion. Reviewing the record, the district court concluded that it had indeed misapprehended or had been misinformed on information presented at the sentencing hearing. The district court therefore granted Husney's motion, vacated the original sentence, reinstated the sentence of life with the possibility

of parole, and then suspended the sentence and placed Husney on probation for a period not to exceed five years. This probation was conditioned upon Husney's incarceration in the county jail for six months; however, the court found that this six-month term had been satisfied by the period Husney had already served in the Nevada State Prison. Accordingly, Husney was released from prison in July, 1980; the record indicates that Husney has cooperated with probation officials and has remained at liberty on probation for over three years during the pendency of this proceeding.

JURISDICTIONAL CONSIDERATIONS

Having established the procedural posture of this case, we turn to an analysis of the State's petition. The State petitions this court for an extraordinary writ of mandamus to compel the district court to vacate its order suspending Husney's sentence and to reinstate the original sentence of life imprisonment with the possibility of parole. The State argues that under the established law of this jurisdiction, once Husney began to serve his sentence, the district court was without authority to suspend or modify that sentence. Given the particular factual setting presented in this case, we disagree.

The State's position is based in large part upon a perceived incongruity in Nevada law pertaining to sentencing. The State argues that a sentencing court is prohibited by statute from suspending a sentence once a defendant has actually begun to serve that sentence. The State's position is based in part upon NRS 176.185(4), which provides, in pertinent part: "The court shall not suspend the execution of a sentence of imprisonment after the defendant has begun to serve it." ³ The State maintains that this language establishes that once a defendant has commenced serving his sentence, the district court is totally without jurisdiction to suspend or modify it. See, e.g., Miller v. Hayes, 95 Nev. 927, 604 P.2d 117 (1979); State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969).

This court has recognized, however, that a sentencing court may under certain circumstances entertain a motion to vacate or modify its orders and judgments. In the seminal case of Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967), we addressed the issue of whether a trial court has the power to set aside a judgment of conviction after a plea of guilty and commencement of sentence. We held:

We deem the procedural label to be of little importance. The fact remains that courts which make a mistake in rendering a judgment which works to the extreme detriment of the defendant will not allow it to stand uncorrected. In a situation such as this, where, as discussed below, the court has inherent power to reconsider a judgment for good cause shown, we hold that such an issue may be raised by a motion to vacate judgment....

83 Nev. at 301, 429 P.2d 549 (emphasis added); see also State v. District Court, 85 Nev. at 488, 457 P.2d 217. Warden v. Peters has never been overruled, and has been cited in several recent cases. See State v. Clark, 90 Nev. 144, 146, 520 P.2d 1361 (1974); Miller v. Hayes, 95 Nev. at 931, 604 P.2d 117; Sheriff v. Blasko, 98 Nev. 327, 647 P.2d 371 (1982). Accordingly, despite the State's reliance on NRS 176.185(4), it is clear that when the sentencing court "makes a mistake in rendering a judgment which works to the extreme detriment of the defendant," the district court has jurisdiction to vacate or modify the suspect sentence or judgment. ⁴ The district court's inherent authority to correct a judgment or sentence founded on mistake is in accord with the constitutional considerations underlying the sentencing process. The United States Supreme Court has expressly held that where a defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record, "[the] result, whether caused by carelessness or design, is inconsistent with due process of law." Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Further, the cases clearly establish that constitutionally violative "materially untrue assumptions" concerning a criminal record may arise either as a result of a sentencing judge's correct perception of inaccurate or false information, or a sentencing judge's incorrect perception or misapprehension of otherwise accurate or true information. See United States v. Myers, 374 F.2d 707, 710-712 (3rd Cir.1967); United States v. Malcolm, 432 F.2d 809, 816 (2nd Cir.1970). The latter situation is illustrated by Crowe v. State, 86 S.D. 264, 194 N.W.2d 234 (1972), in which the sentencing judge misread an otherwise accurate F.B.I. report and sentenced the defendant while under the mistaken assumption that he had suffered four rape convictions. In fact, the F.B.I. report clearly indicated that the defendant had suffered only one conviction for rape. The South Dakota Supreme Court affirmed the conviction but remanded the case for resentencing, finding the defendant's due process rights had been violated as the result of the sentencing judge's subjective misapprehension of the report. Id. at 246; see also United States...