Stockmeier v. State

• Decision Date: 19 May 2011
• Docket Number: No. 52099.,52099.
• Citation: 255 P.3d 209,127 Nev. Adv. Op. 19
• Parties: Robert Leslie STOCKMEIER, Appellant/Cross–Respondent,v.The STATE of Nevada, BOARD OF PAROLE COMMISSIONERS and Division of Parole & Probation of The Department of Public Safety; Parole Chairman Dorla M. Salling; Parole Commissioner Tami Bass; Parole Commissioner M. Silva; Parole Commissioner Yolanda Morales; Division Chief of Parole And Probation John A. Gonska; and DPS Sgt. Maury Reichelt, Respondents/Cross–Appellants.
• Court: Nevada Supreme Court

255 P.3d 209

127 Nev. Adv. Op. 19

Robert Leslie STOCKMEIER, Appellant/Cross–Respondent,

v.The STATE of Nevada, BOARD OF PAROLE COMMISSIONERS and Division of Parole & Probation of The Department of Public Safety; Parole Chairman Dorla M. Salling; Parole Commissioner Tami Bass; Parole Commissioner M. Silva; Parole Commissioner Yolanda Morales; Division Chief of Parole And Probation John A. Gonska; and DPS Sgt. Maury Reichelt, Respondents/Cross–Appellants.

No. 52099.

Supreme Court of Nevada.

May 19, 2011.

Robert Leslie Stockmeier, Lovelock, in Proper Person.Catherine Cortez Masto, Attorney General, and Alicia L. Lerud, Deputy Attorney General, Carson City, for Respondents/Cross–Appellants.BEFORE DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

OPINIONBy the Court, HARDESTY, J.:

This proper person appeal and counsel cross-appeal arise from appellant's attempts to have certain factual statements in his presentence investigation report (PSI) amended to correct alleged factual inaccuracies. The primary question we are called on to decide is whether, under Nevada law, a prisoner may seek to amend his PSI after he has been sentenced. Because Nevada lacks a statutory or administrative process by which a prisoner may challenge alleged inaccuracies in his PSI post-sentencing, we conclude that any claimed inaccuracy in a PSI must be made to the district court at or before sentencing and, if not resolved in the defendant's favor, on direct appeal to this court after sentencing. Thus, in these appeals, neither respondent/cross-appellant Division of Parole and Probation nor the district court had the authority to amend appellant's PSI after he was sentenced, and respondent/cross-appellant Parole Board may properly rely on the PSI when it makes any future parole determinations concerning appellant.

FACTUAL AND PROCEDURAL HISTORY

In 1990, appellant Robert Leslie Stockmeier pleaded guilty to two counts of sexually assaulting a nine-year-old boy. Neither count alleged the threat or use of a weapon. Stockmeier's PSI, however, stated that the victim had reported that Stockmeier threatened him with a weapon during the course of the offense.¹ At his sentencing hearing, Stockmeier objected to this statement, as well as other factual allegations in the PSI, including a statement regarding an advertisement found in a search of Stockmeier's home during the criminal investigation. The sentencing court noted Stockmeier's objections to the PSI, but did not rule on them. The court sentenced Stockmeier to two consecutive life sentences, and he did not file a direct appeal. Instead, Stockmeier filed two post-conviction petitions, neither of which challenged the weapon allegation or the statement about the advertisement.

Ten years later, in 2000, after being denied parole eligibility by the Psychological Review Panel, Stockmeier filed a district court action raising, for the first time since his sentencing hearing, his objections to the PSI's factual statements regarding the weapon allegation and the advertisement. The district court denied the petition, concluding that it lacked jurisdiction to amend the PSI based on an untimely postconviction petition.

Stockmeier then requested that respondent Division of Parole and Probation of the Department of Public Safety amend his PSI, but the Division ultimately denied his request as well. Thereafter, Stockmeier attempted to present evidence to respondent Board of Parole Commissioners that contradicted the statements in the PSI. The Parole Board stated that its policy was not to consider challenges to a PSI and that, despite Stockmeier's assertions, it would nonetheless rely on the PSI in making any parole determinations.

Between 2003 and 2006, Stockmeier successfully litigated an action against the Psychological Review Panel on claims unrelated to his PSI. He was again eligible for parole in 2006, when the Parole Board, for the first time, found that his offense had involved a weapon and considered the involvement of the weapon in evaluating whether he would receive parole. The Parole Board denied Stockmeier parole based on the nature and severity of his crimes and public safety concerns.

Following the 2006 parole denial, Stockmeier filed the instant action in the district court, asserting (1) a tort claim against the Division for declining to amend his PSI, (2) a tort claim against the Parole Board for knowingly relying on the PSI after he presented evidence that it contained incorrect factual statements, and (3) a retaliation claim against the Parole Board for denying him parole in 2006 based on his successful litigation against the Psychological Review Panel. Respondents moved for dismissal; Stockmeier opposed the motion.

At a hearing on the motion to dismiss, the district court stated that it believed that any inaccuracies in the PSI needed to be corrected. Respondents asserted that the Division generally will not change a PSI once a defendant has been sentenced. Nevertheless, respondents agreed that if the PSI was inaccurate, it should be corrected. Respondents further indicated that they would be open to meeting with Stockmeier to discuss possible amendments if the court ordered them to do so. Thereafter, the district court ordered the parties to confer as to whether any of the factual statements in the PSI should be amended. The parties met and agreed, among other things, that the statement regarding the advertisement found in a search of Stockmeier's home was misleading, but they could not agree on wording for an amendment.

During a subsequent hearing on the matter, the district court stated that it would order the PSI to read that the search revealed “a multiple page advertisement depicting family nudism.” Stockmeier agreed to the district court's wording. No agreement on the weapon allegation was reached, as respondents contended that the statement was accurate. The district court considered evidence on the issue and declined to amend the statement as to the weapon allegation. The court also ordered additional amendments as agreed upon by the parties. The court then treated the motion for dismissal as one for summary judgment and granted respondents summary judgment on all of Stockmeier's claims. This appeal and cross-appeal followed.

DISCUSSION

Standard of review

When a district court considers matters outside the pleadings in support of an NRCP 12(b)(5) motion, this court reviews the district court's order dismissing the complaint as if it had granted summary judgment. NRCP 12(b). We review a district court's summary judgment de novo. Stalk v. Mushkin, 125 Nev. 21, 24, 199 P.3d 838, 840 (2009). Summary judgment must be granted when the pleadings and record evidence, viewed in the light most favorable to the nonmoving party, demonstrate that there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Witherow v. State, Bd. of Parole Comm'rs, 123 Nev. 305, 308, 167 P.3d 408, 409 (2007). Conjecture and speculation do not create an issue of fact. Wood v. Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005).

Summary judgment in favor of the Division of Parole and Probation

On appeal, Stockmeier contends that summary judgment in favor of the Division of Parole and Probation was improper because the Division had a duty to correct his PSI. Stockmeier does not identify any express authority that permits the Division to amend a prisoner's PSI after sentencing, yet he insists that the Division has inherent authority to correct its own mistakes and an implied power to amend a prisoner's PSI at any time. These contentions are not supported by Nevada law.

An administrative agency's powers are generally limited to the powers set forth by statute, although “certain powers may be implied even though they were not expressly granted by statute, when those powers are necessary to the agency's performance of its enumerated duties.” City of Henderson v. Kilgore, 122 Nev. 331, 334, 131 P.3d 11, 13 (2006). In other words, for implied authority to exist, the implicitly authorized act must be essential to carrying out an express duty. Id. at 335, 131 P.3d at 14. Thus, in order to determine whether the Division had express or implied authority to amend Stockmeier's PSI, it is necessary to review the relevant statutes.

The Division of Parole and Probation is mandated by statute to prepare a PSI to be used at sentencing for any defendant who pleads guilty to or is found guilty of a felony. NRS 176.135(1). A PSI contains information about the defendant's prior criminal record, the circumstances affecting the defendant's behavior and the offense, and the impact of the offense on the victim. NRS 176.145(1). Because the sentencing court will rely on a defendant's PSI, the PSI must not include information based on “impalpable or highly suspect evidence.” Goodson v. State, 98 Nev. 493, 495–96, 654 P.2d 1006, 1007 (1982). To that end, after preparing a PSI, the Division must disclose the report's factual content to the prosecuting attorney, defense counsel, and the defendant, and give the parties the opportunity to object to any of the PSI's factual allegations.² NRS 176.156(1); see also Shields v. State, 97 Nev. 472, 472–73, 634 P.2d 468, 468–69 (1981) (reversing and remanding a defendant's sentence because he was not provided with police reports that were included in the PSI and were material to the district court's sentencing decision). Once a defendant is sentenced, the Division has no further statutory duties with regard to the defendant's PSI. See generally NRS 176.133–.159; NRS 213.1071–.1078; NRS 213.1092–.10988.

Apart from the duties identified in the statute set out above, the Division does not have any statutory duties with regard to a prisoner's PSI. Thus, the Division has no express statutory authority to amend a prisoner's PSI after sentencing. See NRS 176.133–.159; NRS 213.1071–.1078; NRS 213.1092–.10988. And because the Division...