Wilson v. State
| Decision Date | 21 November 2007 |
| Docket Number | No. 46942.,46942. |
| Citation | 170 P.3d 975 |
| Parties | Wiley Gene WILSON, a/k/a John Raymond Kruidenier, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Joel Martin Mann, Las Vegas, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Thomas M. Carroll, Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
By the court, PARRAGUIRRE, J.:
In this appeal, we consider whether Nevada's double jeopardy protections prohibit increasing a defendant's sentence after the defendant's conviction has been partially vacated on appeal. We first considered a similar issue in Dolby v. State, where we held: "When a court is forced to vacate an unlawful sentence on one count, the court may not increase a lawful sentence on a separate count."1 We now conclude that the double jeopardy protections articulated in Dolby apply with equal force regardless of the procedural posture in which the resentencing occurs—whether in the context of error correction in the district courts or in remanded proceedings.
Accordingly, we conclude that the sentencing procedure employed by the district court violated appellant's constitutional right against double jeopardy. We therefore vacate the amended judgment of conviction and remand to the district court with instructions to reinstate the portions of Wilson's original sentence that we previously affirmed on direct appeal.
FACTS AND PROCEDURAL HISTORY
In July 2003 appellant Wiley Gene Wilson was convicted of four counts of using a minor in the production of pornography and four counts of possession of a visual presentation depicting sexual conduct of a person under 16 years of age. Wilson was sentenced to 4 terms of 24 to 72 months on the possession charges to run concurrently with 4 consecutive terms of 10 years to life on the production charges. On direct appeal, this court reversed three of the four production convictions because all four convictions arose out of a single criminal act. We then remanded the case for resentencing.2
In February 2006 Wilson appeared before the district court for resentencing. At that time, the district court modified the sentences pertaining to Wilson's remaining convictions in two ways. First, the district court increased the minimum sentence for each possession conviction from 24 months to the statutory maximum, 28 months. Second, the district court ruled that Wilson's possession sentences should run consecutively—instead of concurrently, as specified in the original sentencing hearing—with his sentence on the one remaining production count. This appeal followed.
DISCUSSION
On appeal, Wilson argues that the district court violated his right against double jeopardy by increasing the sentences associated with those counts of his conviction affirmed on direct appeal. For the following reasons, we agree.3
Double jeopardy
Under Article 1, Section 8(1) of the Nevada Constitution, "[n]o person shall be subject to be twice put in jeopardy for the same offense."4 Interpreting the federal Double Jeopardy Clause in Dolby v. State, we concluded that "[w]hen a court is forced to vacate an unlawful sentence on one count, the court may not increase a lawful sentence on a separate count."5 Relying on our conclusion in Dolby, Wilson claims that the district court violated his right against double jeopardy when it increased the minimum sentences associated with the possession counts and ran them consecutively with his sentence on the one remaining production count. In response, the State urges this court to abandon Dolby. While it acknowledges the apparent effect of Dolby's heightened double jeopardy protections in the resentencing context, the State invites this court to reconsider our jurisprudence on the issue. The State argues that the United States Supreme Court has eroded double jeopardy protections in the last half century and, as a result, the basic underpinnings of Dolby are no longer good law.6
We disagree with the State's position and take this opportunity to renew our commitment to strong double jeopardy protections. Accordingly, we decline the State's invitation to abandon Dolby in favor of a less robust rule.
Rejection of United States v. DiFrancesco and "sentencing package doctrine"
On appeal, the State proffers an alternative rule to replace Dolby. Specifically, the State urges this court to hold that when a defendant successfully challenges part of a multicount conviction on direct appeal, the district court may effectuate its original sentencing intent by increasing the sentences associated with the remaining counts without violating double jeopardy, provided that, considered in the aggregate, the duration of the new sentences does not exceed the original punishment. For the following reasons, we reject this approach.7
The United States Supreme Court first considered the application of the Double Jeopardy Clause to sentencing in its landmark 1874 decision in Ex Parte Lange.8 The defendant in Lange was convicted of stealing federal mail bags, a crime punishable by either a fine or a prison term. Lange, however, was both fined and sentenced to prison. The Supreme Court reversed, reasoning that once Lange suffered one of the punishments permitted under the statute, "the power of the court to punish further was gone."9
In its 1931 decision in United States v. Benz, the Supreme Court extended Lange in influential dicta to constitutionally prohibit increasing a sentence after a defendant had begun to serve it.10 Between 1947 and 1980, however, the Supreme Court gradually retreated from this prohibition.11 In North Carolina v. Pearce, for example, the Court noted that when a defendant successfully appeals a conviction and obtains a new trial, "the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean."12 Accordingly, the Court held that a trial court may, under most circumstances, impose a more severe sentence after reconviction without violating double jeopardy.13
In United States v. DiFrancesco, ten years before this court's decision in Dolby, the United States Supreme Court finally abandoned the Lange-Benz rationale. In DiFrancesco, the Court held that the Double Jeopardy Clause proscribed resentencing only when defendants have developed a legitimate expectation of finality in their original sentence.14
Applying DiFrancesco, the majority of federal circuits have concluded that defendants waive any expectation of finality in a given sentence when they exercise their right to an appeal.15 In effect, when defendants challenge one of several interdependent sentences (or underlying convictions) on appeal, they have challenged the entire sentence.16 Consequently, following a partially successful appeal, a defendant has no legitimate expectation of finality in any remaining portion of the sentence.17 As such, federal courts now generally recognize that when a defendant has successfully appealed part of a conviction, "the Double Jeopardy Clause does not preclude increasing the sentence on the remaining offense to effectuate the sentencing judge's original intent, even though the defendant has already begun serving the sentence."18
In addition, federal courts have "read into the statutory authorization of direct appeal and subsequent resentencing" the "concept of a sentencing `package.'"19 Under the sentencing "package" doctrine, courts treat the penalties imposed on multiple counts as individual components of a single, comprehensive sentencing plan.20 Federal courts are therefore entitled to let composite sentences in multicount convictions stand or fall in the aggregate. As such, they have the authority to revise even the unchallenged portions of a sentencing "package" without running afoul of double jeopardy.21
In United States v. Shue, the Seventh Circuit Court of Appeals described this trend as a necessary response to the "practical realities of present sentencing," particularly, sentence interdependence in the context of multicount convictions.22 According to the Shue court, partial reversal of such a conviction on appeal unbundles the sentencing package and "renders [it] ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions."23 At resentencing, therefore, federal district courts may reconstruct a new aggregate sentence on surviving counts to ensure "`that the punishment still fits both crime and criminal.'"24
There are, however, two features that make the sentencing "package" doctrine uniquely adapted to federal sentencing law. First, the doctrine appears to have complemented the determinate sentencing goals of the Federal Sentencing Guidelines' previously mandatory regime.25 Under that regime, a sentencing "package" was partly predicated on a base offense level, which determined the applicable Guidelines range. Thus, partially overturning a conviction on appeal risked unraveling the computations underlying the base offense level and, in effect, "unbundling" the sentencing package. In such a case, the resentencing court was required to recompute the base offense level in light of the remaining counts and revise the entire sentencing package accordingly. Second, the doctrine's use appears to have been even more discrete under the Guidelines system. In particular, it acted as the predominant rationale for substituting a two-level firearm enhancement at resentencing for a vacated 18 U.S.C. § 924(c) firearm conviction, and for resentencing after setting aside convictions which were structurally dependent on predicate offenses for their commission.26
Nevada double jeopardy jurisprudence
While we recognize certain divergent developments in federal double jeopardy jurisprudence and sentencing law, today we reaffirm our commitment to the traditional rule articulated in Dolby: "When a...
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