Truesdell v. State

• Decision Date: 18 July 2013
• Docket Number: No. 58628.,58628.
• Citation: 129 Nev. Adv. Op. 20,304 P.3d 396
• Parties: Joseph TRUESDELL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

304 P.3d 396

129 Nev. Adv. Op. 20

Joseph TRUESDELL, Appellant,

v.The STATE of Nevada, Respondent.

No. 58628.

Supreme Court of Nevada.

April 4, 2013.

Rehearing Denied May 31, 2013.

Reconsideration En Banc Denied July 18, 2013.

Philip J. Kohn, Public Defender, and Howard Brooks and Sharon G. Dickinson, Deputy Public Defenders, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, for Respondent.

BEFORE GIBBONS, PARRAGUIRRE and DOUGLAS, JJ.

OPINION

By the Court, GIBBONS, J.:

In this appeal, we consider whether a party may collaterally attack a temporary protective order in a separate criminal proceeding for violation of that order. We conclude that a party must initially challenge the validity of a temporary protective order under NRS 33.080(2) before the court that issued the order. Further, the party may not collaterally attack the order's validity in a separate proceeding. In light of this, and because all of appellant's other arguments on appeal lack merit, we affirm the district court's judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Appellant Joseph Truesdell lived in an apartment with Mika Bennett and her two children in Las Vegas. The apartment lease did not list Truesdell as a resident of the address. On October 26, 2010, Truesdell struck Bennett during an argument. He was arrested and jailed and then later pleaded no contest to the domestic violence charges against him.

On October 28, 2010, Bennett contacted SafeNest, a domestic violence advocate organization, to obtain a temporary protective order (TPO) against Truesdell. The same day, the district court granted a five-day TPO against Truesdell based on a typed application that contained the details Bennett relayed to SafeNest but did not state who filled out the application or how the district court received it. The TPO required Truesdell to stay at least 100 yards away from Bennett's apartment but allowed him to return a single time with a police officer to collect his personal belongings.

Corrections Officer Theodore Wylupski served Truesdell with the TPO at the Clark County Detention Center the same day. On November 1, 2010, while the TPO was still valid, Truesdell was released from jail and went back to the apartment without a police officer. Despite the TPO, Bennett allowed Truesdell to enter the apartment, where they argued for an hour and a half. Truesdell then left at Bennett's request.

On November 2, 2010, Truesdell returned to the apartment and started knocking on the door. Bennett called 911. Truesdell then began kicking the door. Bennett never gave Truesdell permission to enter the apartment and did not unlock the door. Eventually, he kicked in the door and walked Bennett into the bedroom where her two children slept, but hastily left a few minutes later after several neighbors approached the apartment. Thereafter, police officers found and arrested Truesdell.

On November 4, 2010, the State filed a complaint against Truesdell, alleging he committed one count of invasion of the home. After the preliminary hearing, where Bennett testified that she called SafeNest to obtain the TPO against Truesdell, the State filed an information against Truesdell alleging he committed invasion of the home in violation of a TPO.

On the first day of Truesdell's three-day trial, he requested a continuance in order to litigate the validity of the TPO. Truesdell claimed that he was unaware of the TPO application until a day or two before trial, when the State provided him with a copy. Based on that application, Truesdell argued the procedure for obtaining a TPO by phone violated his due process rights. The district court denied his motion, but told the parties they could address the issue prior to sentencing, as the constitutionality of a TPO was a question of law.

During the trial, Bennett testified about the events of November 2, 2010, and identified Truesdell as the one who kicked down her door. Officer Wylupski also testified that he did not specifically recall serving Truesdell with the TPO, but was able to identify his signature on a proof of service that also contained Truesdell's signature and fingerprint. Officer Wylupski also testified to the general procedure he follows when serving a person with a TPO. In its closing argument, the State argued that the jury did not have to find that Truesdell understood the TPO in order to determine whether he committed home invasion in violation of a TPO. Instead, the State asserted that the jury only had to find that Truesdell willfully violated the TPO. The district court allowed these comments over Truesdell's objections. Following the closing arguments, the jury found by special verdict that Truesdell was guilty of invasion of the home in violation of a TPO.

After the trial, Truesdell did not file a motion with the district court regarding the TPO's validity and did not address the issue during his sentencing. The district court imposed a 12– to 48–month sentence on Truesdell for the home invasion charge and a concurrent 12– to 36–month sentence for the violation of the TPO. The district court also ordered Truesdell to pay $500 to the Indigent Defense Fund. He now appeals.

DISCUSSION

Because a party cannot collaterally attack a TPO in a separate criminal proceeding and because the other issues raised by Truesdell lack merit, we affirm his conviction.

Truesdell may not collaterally attack the TPO's validity in a subsequent prosecution for violating the TPO

Truesdell argues that SafeNest's procurement of the TPO on Bennett's behalf, after speaking with her by telephone, violates the procedure set forth in NRS 33.020(5) and violates his due process rights. The interpretation of a statute is a question of law that we review de novo. Mendoza–Lobos v. State, 125 Nev. 634, 642, 218 P.3d 501, 506 (2009). We also review issues relating to the constitutionality of a statute de novo. State v. Hughes, 127 Nev. ––––, ––––, 261 P.3d 1067, 1069 (2011).

Whether a party may collaterally attack the validity of a TPO in a subsequent criminal proceeding for violation of that TPO is a question of first impression in Nevada. We take this opportunity to clarify that a party may not collaterally attack the validity of a TPO in a subsequent criminal proceeding based on violation of the TPO.

Many jurisdictions follow the collateral bar rule, which precludes a party from collaterally attacking a protection order in a later proceeding for violating the order, even to question the constitutionality of the statute that authorized the protection order. See State v. Chavez, 123 Ariz. 538, 601 P.2d 301, 302 (Ariz.Ct.App.1979) (indicating that parties could not collaterally attack the constitutionality of an injunction by an appeal from their convictions of criminal contempt for violating that injunction); State v. Grindling, 96 Hawai‘i 402, 31 P.3d 915, 919 (2001) (concluding that the defendant could not collaterally attack the underlying factual basis of a temporary restraining order in a later criminal proceeding for violating the order); Wood v. Com., 178 S.W.3d 500, 512–13 (Ky.2005) (concluding that appellant could not collaterally attack the validity of an emergency protective order in a later proceeding for violating that order and this preclusion did not violate appellant's due process rights because a statute allowed appellant to directly challenge the order); State v. Small, 150 N.H. 457, 843 A.2d 932, 935 (2004) (“ ‘The general underlying premise [against collateralattacks] is that a person subject to an injunctive order ... should be bound to pursue any objection to the order through the constituted judicial process available for that purpose.’ ” (quoting State v. Grondin, 132 N.H. 194, 563 A.2d 435 (1989))); City of Seattle v. May, 171 Wash.2d 847, 256 P.3d 1161, 1163–64 (2011) (concluding that the collateral bar rule prohibited a defendant from challenging the validity of permanent domestic violence order in a later prosecution for violation of that order, unless the defendant could show that the order was void).

Other courts, however, have concluded that such collateral attacks on a court order are permitted in certain circumstances. See People v. Gonzalez, 12 Cal.4th 804, 50 Cal.Rptr.2d 74, 910 P.2d 1366, 1373–76 (1996) (interpreting California's criminal contempt statute and determining that a person may challenge the constitutional validity of a court order in a later contempt proceeding); Gilbert v. State, 765 P.2d 1208, 1209–11 (Okla.Crim.App.1988) (addressing the defendant's vagueness arguments on a domestic violence statute and due process claims relating to the issuance of an emergency protective order in an appeal from an order revoking the defendant's suspended sentences based on continued violations of the order); State v. Orton, 137 Or.App. 339, 904 P.2d 179, 182 (1995) (concluding that the collateral bar doctrine could not preclude the defendant from raising issue of whether statute pertaining to a violation of a protection order was unconstitutionally vague because the issue was not susceptible to litigation during the proceeding when the order was issued).

Although Nevada law allows a party to collaterally attack prior convictions that are offered by the State to prove the defendant is a habitual criminal or to enhance a charge to a felony, see Hobbs v. State, 127 Nev. ––––, ––––, 251 P.3d 177, 181–82 (2011) (reviewing validity of defendant's prior misdemeanor convictions that were used to enhance charged offense to a felony under NRS 200.485); Arajakis v. State, 108 Nev. 976, 982–83, 843 P.2d 800, 804 (1992) (examining defendant's claims relating to the validity of prior convictions used to adjudicate and sentence defendant as habitual criminal), a collateral attack on a court order in a later proceeding that involves a violation of that order presents a different set of...