                                                  130 Nev., Advance Opinion      2.1
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DARREN GABRIEL LACHANCE,                             No. 62129
                Appellant,
                vs.
                                                                         FILED
                THE STATE OF NEVADA,                                     APR 0 3 2014
                Respondent.
                                                                        TRAC1E K. LINDEMAN
                                                                     CLLRIANOF SLIEREI
                                                                                     M
                                                                    BY




                           Appeal from a judgment of conviction, pursualit to a jury
                verdict, of domestic battery by strangulation, domestic battery causing
                substantial bodily harm, possession of a controlled substance for the
                purpose of sale, possession of a controlled substance, false imprisonment,
                and unlawful taking of a motor vehicle. Second Judicial District Court,
                Washoe County; Patrick Flanagan, Judge.
                           Affirmed in part and reversed in part.


                Richard F. Cornell, Reno,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
                Attorney, Washoe County,
                for Respondent.




                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.




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                                                 OPINION

                By the Court, CHERRY, J.:
                            In this opinion, we address whether the charge of possession of
                a controlled substance is a lesser-included offense of possession of a
                controlled substance for the purpose of sale. Under the Double Jeopardy
                Clause, a criminal defendant may not be punished multiple times for the
                same offense unless the Legislature has clearly authorized the
                punishments. Missouri v. Hunter, 459 U.S. 359, 366 (1983). Because we
                conclude that possession of a controlled substance is a lesser-included
                offense of possession of a controlled substance for the purpose of sale, we
                conclude that appellant may not be punished for both crimes. To remedy
                the double-jeopardy violation, we look to the range of punishment for the
                principal offenses and reverse the conviction with the lesser penalty.
                Based on appellant's criminal history, we conclude that simple possession
                was the less severely punishable offense, and we, accordingly, reverse that
                conviction. However, we affirm the remainder of the judgment of
                conviction, including the adjudication of appellant as a habitual criminal.
                                                  FACTS
                            After Darren LaChance returned home from a three-day
                gambling binge, he and his girlfriend, Starleen Lane, got into an argument
                in the early hours of the morning. Their roommate, Conrad Coultre (CJ),
                also became involved in the argument later that morning. Lane testified
                that after LaChance and CJ started arguing, LaChance hit her on the
                right side of her forehead with a flashlight. Then, after CJ left for work,
                LaChance grabbed her by the arm and flung her into the bedroom while
                yelling, belittling, and threatening to kill and maim her. He began to
                punch and slap her face and ear, threw her on the bed, and got on top of

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                   her with his knee on her chest and his hand around the lower part of her
                   neck. LaChance used his body weight to put pressure on her chest and
                   lower neck. Lane had difficulty breathing and saw stars because of the
                   pressure and because of her fear and anxiety. After Lane started to
                   scream, LaChance covered her mouth with his hand.
                               Lane further stated that LaChance repeatedly slapped her
                   ear, and it "just went blank." She could no longer hear and became
                   immediately nauseous. Lane was able to roll into a fetal position while he
                   kicked her in the shins and tailbone and hit her with the flashlight. When
                   she tried to get up, LaChance stomped on her feet.
                               According to Lane, LaChance eventually left the room, and
                   Lane opened the patio door, jumped off the balcony, and fled with
                   LaChance chasing her. LaChance caught up to her but, after a neighbor
                   yelled that she was calling the cops, LaChance fled to Lane's car and drove
                   off without her permission. The neighbor testified that she saw LaChance
                   beating Lane, and after she yelled at him, he ran off The neighbor then
                   called the police. Lane waited for the police to arrive, and she made a
                   report before going to the hospital.
                               At the hospital, Lane was treated for multiple contusions on
                   her face, back, legs, feet, and ear. She suffered pain in that ear and
                   tenderness in her neck, abdomen, pelvis, and extremities. Lane stated
                   that she was immobile for a few days afterward. She has permanent shin
                   splints and can no longer run. Due to her tailbone injuries, she is unable
                   to sit for long periods of time Lane testified that she suffers from hearing
                   loss and ongoing pain. But, due to a lack of medical insurance, she does
                   not go to the doctor for these problems



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                            Lane testified that following the assault, she received a
                number of intimidating text messages from LaChance, indicating that she
                needed to make the case go away. Lane decided not to press charges out of
                fear.
                            About a week after the incident, Lane met with LaChance at a
                Motel 6. She indicated that the detectives knew of their meeting as her
                phones were tapped. Lane stayed with LaChance at the motel for two
                nights.
                            On the second morning, Lane stated that she left the motel
                room to smoke a cigarette, rounded the corner, and ran into a group of
                police officers looking for LaChance. They had established a perimeter
                when Lane happened upon them. Lane granted consent to the police to
                enter and search the motel room. Detective Curtis English testified that
                LaChance did not immediately exit the motel room and was alone in the
                room for approximately 10 minutes.
                            When police finally searched the room, they found marijuana
                floating in the toilet and plastic bags. Police obtained a warrant to search
                LaChance's duffel bags for controlled substances as the result of a canine
                alert. Detective English testified that they found approximately 4.6
                pounds of marijuana and several scales.
                            LaChance was subsequently charged by way of information
                with domestic battery by strangulation, domestic battery causing
                substantial bodily harm, felony possession of a controlled substance for the
                purpose of sale (NRS 453.337), felony possession of a controlled substance
                (NRS 453.336), false imprisonment, and unlawful taking of a motor
                vehicle. He pleaded not guilty to all counts.



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                                   The jury ultimately found LaChance guilty on all counts. The
                      State subsequently gave notice on the record of its intent to pursue
                      habitual criminal enhancements due to LaChance's five prior felony
                      convictions. When asked what the State needed to do to meet the
                      statutory requirements to provide notice, defense counsel and the district
                      court agreed that written notice would be sufficient. A notice of habitual
                      criminal enhancement was filed.
                                   In discussing the sentence, the district court noted LaChance's
                      young age, the victim impact statements, the severity of the beating, and
                      the five prior felony convictions. The district court determined that the
                      habitual criminal enhancement applied and adjudicated LaChance as a
                      habitual criminal on two of the principal offenses: domestic battery
                      causing substantial bodily harm and possession of a controlled substance.
                      The district court then sentenced LaChance to 24 to 60 months for
                      domestic battery by strangulation, 10 years to life for domestic battery
                      causing substantial bodily harm, 72 to 180 months for felony possession of
                      a controlled substance for the purpose of sale, 10 years to life for felony
                      possession of a controlled substance, 12 months for false imprisonment,
                      and 12 months for unlawful taking of a motor vehicle. A judgment of
                      conviction was entered. LaChance appealed.
                                                     DISCUSSION
                      Sufficiency of the evidence
                                   We first address LaChance's challenge to the sufficiency of the
                      evidence to support the convictions for domestic battery by strangulation
                      and domestic battery causing substantial bodily harm. Under a challenge
                      to the sufficiency of the evidence, this court reviews the evidence in the
                      light most favorable to the prosecution and determines whether "any

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                   rational trier of fact could have found the essential elements of the crime
                   beyond a reasonable doubt." Mitchell v. State, 124 Nev. 807, 816, 192 P.3d
                   721, 727 (2008) (emphasis and internal quotation marks omitted). The
                   jury is tasked with assessing the weight of the evidence and the witnesses'
                   credibility, id.; Rose v. State, 123 Nev. 194, 202-03, 163 P.3d 408, 414
                   (2007), and may rely on both direct and circumstantial evidence in
                   returning its verdict, Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
                   (1980).
                         Domestic battery by strangulation
                               LaChance contends that there was insufficient evidence of
                   strangulation, and therefore, he could not be convicted of felony battery
                   under NRS 200.485(2). He argues that the strangulation element was
                   only supported by speculation and ambiguous statements and that any
                   difficulty in breathing resulted from Lane's anxiety.
                               NRS 200.481(1)(a) defines battery as "any willful and
                   unlawful use of force or violence upon the person of another."     See also
                   NRS 33.018 (defining acts of domestic violence). When the battery is
                   committed by strangulation, the perpetrator is guilty of a felony rather
                   than a misdemeanor. NRS 200.485(2). The Legislature defined
                   strangulation as "intentionally impeding the normal breathing or
                   circulation of the blood by applying pressure on the throat or neck or by
                   blocking the nose or mouth of another person in a manner that creates a
                   risk of death or substantial bodily harm." NRS 200.481(1)(h).
                                In reviewing the evidence in the light most favorable to the
                   prosecution, we conclude that a rational trier of fact could have found
                   beyond a reasonable doubt that LaChance strangled Lane. The State
                   presented evidence that LaChance placed his knee on Lane's chest and his

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                 hands on her clavicle/lower part of her neck and then put pressure on the
                 area, impeding her breathing to the point that her vision was impaired.
                 Depriving Lane of oxygen to the point where she lost vision supports a
                 findingS that LaChance applied pressure to Lane's throat or neck in a
                 manner that created a risk of death or substantial bodily harm.
                 Accordingly, we affirm the conviction for domestic battery by
                 strangulation.
                       Domestic battery causing substantial bodily harm
                             LaChance also challenges the sufficiency of the evidence
                 supporting the substantial-bodily-harm element of the domestic-battery-
                 causing-substantial-bodily-harm conviction. He also contends that where
                 the substantial-bodily-harm element is based on prolonged pain, the pain
                 must also be substantial, and here it was not.'



                        "LaChance also avers that the Collins v. State, 125 Nev. 60, 203 P.3d
                 90 (2009), definition of "prolonged physical pain" is inadequate and that
                 this court should adopt the "prolonged. . . pain" standard elucidated in the
                 dissent of State v. King, 827 N.E.2d 398, 402 (Ohio Ct. App. 2005) (Rocco,
                 J., dissenting). Because LaChance's counsel acquiesced to the use of the
                 definition found in Collins during trial, appellate consideration of this
                 issue is limited to constitutional or plain error. Saletta v. State, 127 Nev.
                     „ 254 P.3d 111, 114 (2011) (noting that failure to object during trial
                 generally precludes appellate consideration of an issue); Somee v. State,
                 124 Nev. 434, 443, 187 P.3d 152, 159 (2008) ("[T]his court has the
                 discretion to review constitutional or plain error."). Because there is no
                 alleged constitutional component to this argument, the error here must be
                 plain. "An error is plain if the error is so unmistakable that it reveals
                 itself by a casual inspection of the record." Saletta, 127 Nev. at , 254
                 P.3d at 114 (internal quotation omitted). The error must also be clear
                 under current Nevada law. Id. Accordingly, plain error cannot exist here
                 because such a finding would be inconsistent with Collins, the controlling
                 Nevada authority.

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                              Where a battery results in substantial bodily harm, the
                  battery becomes a felony. See NRS 200.485(2); NRS 200.481(2)(b). NRS
                  0.060 defines substantial bodily harm as "[b[odily injury which creates a
                  substantial risk of death or which causes serious, permanent
                  disfigurement or protracted loss or impairment of the function of any
                  bodily member or organ; or... [plrolonged physical pain." We have stated
                  that "the phrase 'prolonged physical pain' must necessarily encompass
                  some physical suffering or injury that lasts longer than the pain
                  immediately resulting from the wrongful act." Collins v. State, 125 Nev.
                  60, 64, 203 P.3d 90, 92-93 (2009). "In a battery, for example, the
                  wrongdoer would not be liable for 'prolonged physical pain' for the
                  touching itself. However, the wrongdoer would be liable for any lasting
                  physical pain resulting from the touching." Id. at 64 n.3, 203 P.3d at 93
                  n.3.
                              Reviewing the evidence in the light most favorable to the
                  prosecution, we conclude that the State presented sufficient evidence to
                  establish that Lane suffered prolonged physical pain. Lane was treated at
                  the hospital for hemorrhaging of the ear and multiple contusions and
                  welts. She testified that she was immobile for a few days afterward and
                  that her injuries have resulted in permanent shin splints, which prevent
                  her from running. The injuries to her tailbone hinder her ability to sit for
                  long periods. She also has hearing loss as a result of the injuries suffered
                  from the assault. We conclude that Lane's testimony and the medical
                  records support a finding that Lane suffered "some physical suffering or
                  injury that lasts longer than the pain immediately resulting from the
                  wrongful act." Collins, 125 Nev. at 64, 203 P.3d at 92-93. Accordingly,



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                LaChance's conviction for domestic battery causing substantial bodily
                harm is supported by sufficient evidence.
                Lesser-included offenses
                              LaChance argues that the convictions and sentences for
                possession of a controlled substance for the purpose of sale (MRS 453.337)
                and the lesser-included offense of simple possession (NRS 453.336) based
                on the same controlled substance violates the Double Jeopardy Clause. 2
                The State argues that because NRS 453.336 includes a weight element
                and NRS 453.337 includes an intent element, simple possession under
                NRS 453.336 is not a lesser-included offense of possession for sale under
                NRS 453.337. 3



                      2 LaChance  cites to Fairman v. State, for the proposition that
                possession of a controlled substance is a lesser-included offense of
                possession of a controlled substance for the purpose of sale. 83 Nev. 137,
                141, 425 P.2d 342, 344-45 (1967), abrogated on other grounds by Bigpond
                v. State, 128 Nev. „ 270 P.3d 1244, 1249 (2012). However, the
                Fairman court dealt with a situation where the defendant was found
                guilty of two crimes under the same statute and determined that only one
                conviction may arise out of a single statute. 83 Nev. at 141, 425 P.2d at
                344-45. The statutory scheme has since changed, with possession for sale
                and simple possession separated into different statutes.

                      3 The State asserts that because LaChance never gave the district
                court the opportunity to address the double jeopardy issue and because
                double jeopardy protections are waivable, this court should decline to
                consider the challenge. While double jeopardy challenges may be waived
                under certain conditions, United States v. Brace, 488 U.S. 563, 568 (1989),
                waiver of a fundamental constitutional right must be knowing and
                intentional. Raquepaw v. State, 108 Nev. 1020, 1023, 843 P.2d 364, 366-
                67 (1992), overruled on other grounds by DeRosa v. First Judicial Dist.
                Court, 115 Nev. 225, 234, 985 P.2d 157, 163 (1999), overruled on other
                grounds by City of Las Vegas v. Walsh, 121 Nev. 899, 906, 124 P.3d 203,
                208 (2005), overruled on other grounds by City of Reno v. Howard, 130
                                                                   continued on next page...
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                              "Although failure to object at trial generally precludes
                  appellate review, this court has the discretion to review constitutional or
                  plain error." Somee v. State, 124 Nev. 434, 443, 187 P.3d 152, 159 (2008);
                  see also United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008)
                  (reviewing unobjected-to double jeopardy claims under a plain error
                  standard). Plain error exists when the error was clear and it affects a
                  defendant's substantial rights. Mclellan v. State, 124 Nev. 263, 269, 182
                  P.3d 106, 110 (2008).
                              "The Double Jeopardy Clause protects against .. . multiple
                  punishments for the same offense." Jackson v. State, 128 Nev.         ,
                  291 P.3d 1274, 1278 (2012). The Supreme Court of the United States has
                  clarified that the Double Jeopardy Clause does not prohibit multiple
                  punishments if the legislature clearly authorizes them.        Missouri v.
                  Hunter, 459 U.S. 359, 366 (1983). If legislative intent is unclear, this
                  court utilizes the Blockburger v. United States, 284 U.S. 299, 304 (1932),
                  test to determine the permissibility of multiple punishments for the same
                  offense. Jackson, 128 Nev. at     , 291 P.3d at 1278. There, the Supreme
                  Court held that "where the same act or transaction constitutes a violation
                  of two distinct statutory provisions, the test to be applied to determine
                  whether there are two offenses or only one, is whether each provision
                  requires proof of am n additional] fact which the other does not."
                  Block burger, 284 U.S. at 304. The Blockb urger test asks "whether the
                  offense in question cannot be committed without committing the lesser
                  offense." Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006)

                  ...continued
                  Nev.          318 P.3d 1063, 1067 (2014), An intentional relinquishment
                  has not been demonstrated here.


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                 (internal quotation omitted). A person cannot be convicted of both a
                 greater- and lesser-included offense. Id.
                                 The statute proscribing possession with an intent to sell
                 provides that "it is unlawful for a person to possess for the purpose of
                 sale . . . any controlled substance classified in schedule I or II." NRS
                 453.337(1). 4 The possession statute simply provides that "[a] person shall
                 not knowingly or intentionally possess a controlled substance." NRS
                 453.336(1). 5
                                 The elements of simple possession are included in possession
                 for sale—if one is guilty of possession for sale, he or she will necessarily be
                 guilty of simple possession. See NRS 453.337(1); NRS 453.336(1); see also
                 Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 594-95 (1966) ("No sale of
                 narcotics is possible without possession, actual or constructive?" (quoting
                 People v. Rosales, 38 Cal. Rptr. 329, 331 (Ct. App. 1964)). The State relies
                 on the additional weight element under NRS 453.336(4) 6 to distinguish


                       4NRS      453.337(1), unlawful possession for sale, provides that
                 leixcept as otherwise authorized by the provisions of NRS 453.011 to
                 453.552, inclusive, it is unlawful for a person to possess for the purpose of
                 sale . . . any controlled substance classified in schedule I or II."

                       5 NRS  453.336(1), unlawful possession not for purpose of sale,
                 provides that "a person shall not knowingly or intentionally possess a
                 controlled substance."

                       6 NRS     453.336 provides, in pertinent part, that:

                                    4. Unless a greater penalty is provided
                                 pursuant to NRS 212.160, a person who is
                                 convicted of the possession of 1 ounce or less of
                                 marijuana:
                                    (a) For the first offense, is guilty of a
                                 misdemeanor and shall be:
                                                                        continued on next page...
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                the offenses. However, the weight element under NRS 453.336 is a factor
                to be considered in sentencing and is not an element of the offense for
                purposes of Blockburger.         The weight does not affect guilt; it only
                determines the sentence for simple possession of marijuana. And because
                all of the elements of simple possession under NRS 453.336 are subsumed
                within the elements of possession for the purpose of sale under NRS
                453.337, it is irrelevant for purposes of the double-jeopardy analysis that
                possession for the purpose of sale has an additional intent element that is
                not an element of simple possession.         See Rosas v. State, 122 Nev. 1258,


                ...continued
                                       (1) Punished by a fine of not more than
                               $600; or
                                      (2) Examined by an approved facility for
                               the treatment of abuse of drugs to determine
                               whether the person is a drug addict and is likely to
                               be rehabilitated through treatment and, if the
                               examination reveals that the person is a drug
                               addict and is likely to be rehabilitated through
                               treatment, assigned to a program of treatment
                               and rehabilitation pursuant to NRS 453.580.
                                  (b) For the second offense, is guilty of a
                               misdemeanor and shall be:
                                       (1) Punished by a fine of not more than
                               $1,000; or
                                      (2) Assigned to a program of treatment
                               and rehabilitation pursuant to NRS 453.580.
                                  (c) For the third offense, is guilty of a gross
                               misdemeanor and shall be punished as provided in
                               NRS 193.140.
                                   (d) For a fourth or subsequent offense, is
                               guilty of a category E felony and shall be punished
                               as provided in NRS 193.130.

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                  1263, 147 P.3d 1101, 1105 (2006) ("A lesser offense is included in a greater
                  offense when all of the elements of the lesser offense are included in the
                  elements of the greater offense." (internal quotation omitted).
                  Accordingly, the convictions for both violate double jeopardy.
                              The parties disagree as to which conviction should be vacated
                  to remedy the double-jeopardy violation. The State argues that Meador v.
                  State, 101 Nev. 765, 771, 711 P.2d 852, 856 (1985), disapproved of on other
                  grounds by Talancon v. State, 102 Nev. 294, 301 & n.3, 721 P.2d 764, 768
                  n.3, 769 (1986), makes it clear that the crime with the more lenient
                  sentence should be vacated. Applying that rule to this case, the State
                  argues that the possession-for-sale conviction should be vacated because it
                  carries the lesser sentence as a result of the district court adjudicating
                  LaChance as a habitual criminal on simple possession and increasing the
                  sentence for that offense accordingly. LaChance contends that we should
                  look at the maximum punishment for the principal offense, ignoring any
                  habitual criminal adjudication, to determine which is the lesser offense.
                              We ordinarily look to the range of punishment to determine
                  which offense is the lesser-included offense. See Brown v. State, 113 Nev.
                  275, 287, 934 P.2d 235, 243 (1997) (vacating the conviction for child abuse
                  and maintaining the convictions for sexual assault based on the conclusion
                  that "while the child abuse count required proof of an extra element, i.e.,
                  that the sexual assault caused physical pain and mental suffering, the
                  extra element did not transform the child abuse charge into the greater
                  crime at issue"); Meador, 101 Nev. at 771, 711 P.2d at 856 (relying on a
                  California case for the proposition that if a defendant is "convicted of two
                  offenses which are actually one, [the] conviction of [the] less severely
                  punishable offense should be set aside" (citation omitted)). Under that

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                approach, simple possession would be the lesser offense.       Compare MRS
                453.336(2)-(4) (penalties for simple possession of controlled substance),
                with MRS 453.337(2) (penalties for possession for sale of schedule I and II
                controlled substance), and MRS 453.338(2) (penalties for possession for
                sale of schedule III, W, or V controlled substance).
                            The issue is only complicated in this case because the district
                court adjudicated LaChance as a habitual criminal on the simple-
                possession offense but not the possession-for-sale offense. This had the
                effect of increasing both the category and range of punishment for the
                simple-possession offense, see NRS 207.010, making the possession-for-
                sale offense the less severely punishable offense. Because the double-
                jeopardy analysis is based solely on the elements of the principal offenses,
                we conclude that the district court should look to the range of punishment
                for the principal offenses in deciding which conviction to vacate.
                            Based on LaChance's criminal history, the charge for
                possession of a controlled substance is a category           D felony, MRS
                453.336(2)(b), with a sentencing range of 1 to 4 years, MRS 193.130(2)(d).
                However, his charge for possession of a controlled substance for the
                purpose of sale is a category B felony, with a sentencing range of 3 to 15
                years. MRS 453.337(2)(c). Looking solely at the principal offenses, simple
                possession is the less severely punishable offense. Accordingly, we reverse
                the conviction for felony possession of a controlled substance (count II), the
                lesser-included offense in this instance.
                Notice of intent to seek habitual criminal adjudication
                            LaChance argues that the district court committed plain error
                and violated his constitutional rights to a fair trial and due process in
                allowing habitual offender adjudication without an information or an
                arraignment indicating that the State was seeking habitual offender
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                treatment. He avers that while his counsel did not object to a notice being
                filed, this notice could not have replaced the required charging document.
                The State points out that adequate actual notice of the habitual criminal
                enhancement was provided and that no arraignment was necessary as
                being a habitual criminal is an allegation of a status, not a criminal
                charge.
                            LaChance's failure to object to this issue below results in this
                court conducting plain error review of this issue. Saletta v. State, 127 Nev.
                   „ 254 P.3d 111, 114 (2011) (noting that failure to object during trial
                generally precludes appellate consideration of an issue). Plain error
                review requires this court to "examine whether there was error, whether
                the error was plain or clear, and whether the error affected the
                defendant's substantial rights." Id. (internal quotation omitted).
                            Even if it was error to file a notice rather than filing a
                separate count or amending the information to include the habitual
                criminal allegation, NRS 207.016(2), LaChance cannot demonstrate that
                his substantial rights were affected for two reasons. First, he agreed to
                the procedure used in this case.    See Pearson v. Pearson, 110 Nev. 293,
                297, 871 P.2d 343, 345 (1994) (holding plain error does not exist when the
                complaining party contributed to the error because a defendant "will not
                be heard to complain on appeal of errors which he himself induced or
                provoked the court or the opposite party to commit" (citation and internal
                quotation omitted)).
                            Second, the clear purpose of NRS 207.010(2) is to ensure that
                the defendant has notice that the State will request habitual criminal
                adjudication.   See NRS 207.016(2) (allowing the habitual criminal to be
                added right before trial or at any time before sentence is imposed, so long

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                  as there is sufficient time between addition and sentence). Here, he had
                  written notice. Moreover, habitual criminal adjudication is not an offense,
                  it is a status determination, Schneider v. State, 97 Nev. 573, 575, 635 P.2d
                  304, 305 (1981), that is not subject to jury determination, O'Neill v. State,
                  123 Nev. 9, 15, 153 P.3d 38, 42 (2007). So, there is no need for a
                  preliminary hearing or arraignment. See NRS 174.015; Hanley v. Zenoff,
                  81 Nev. 9, 12, 398 P.2d 241, 242 (1965) (requiring a new arraignment for
                  material changes to the charges). Since LaChance does not have those
                  rights as to habitual criminal allegation, the error could not have
                  substantially affected those rights. Accordingly, plain error was not
                  demonstrated.
                  Adjudicating La Chance as a habitual criminal
                              Adjudication of a defendant as a habitual criminal is "subject
                  to the broadest kind of judicial discretion." Tanksley v. State, 113 Nev.
                  997, 1004, 946 P.2d 148, 152 (1997) (internal quotation omitted). In
                  determining if a finding of habitual criminal is proper, "this court looks to
                  the record as a whole to determine whether the sentencing court actually
                  exercised its discretion." O'Neill, 123 Nev. at 16, 153 P.3d at 43 (internal
                  citation omitted). A sentencing court meets its obligations so long as it
                  "was not operating under a misconception of the law regarding the
                  discretionary nature of a habitual criminal adjudication."      Id. (internal
                  citation omitted). Moreover, in considering the enhancement, the "court
                  may consider facts such as a defendant's criminal history, mitigation
                  evidence, victim impact statements and the like." Id.
                              The court may "dismiss a count under NRS 207.010 when the
                  prior offenses are stale or trivial, or in other circumstances where an
                  adjudication of habitual criminality would not serve the purposes of the

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                   statute or the interests of justice." French v. State, 98 Nev. 235, 237, 645
                   P.2d 440, 441 (1982). The "habitual criminality statute exists to enable
                   the criminal justice system to deal determinedly with career criminals
                   who pose a serious threat to public safety."       Sessions v. State, 106 Nev.
                   186, 191, 789 P.2d 1242, 1245 (1990).
                               LaChance asserts that he has a constitutionally protected
                   liberty interest under the due process clause of the Fourteenth
                   Amendment to have the State adhere to NRS 207.010.              See Walker v.
                   Deeds, 50 F.3d 670, 673 (9th Cir. 1995) ("Nevada's law requiring a court to
                   review and make particularized findings that it is lust and proper' for a
                   defendant to be adjudged a habitual offender also creates a
                   constitutionally protected liberty interest in a sentencing procedure.").
                   Concerning the requisite number of previous felonies for the habitual
                   criminal enhancement, LaChance argues that this court should adopt the
                   majority rule that multiple punishments entered during the same time
                   period are considered only one felony. He then points out that because of
                   the time periods for the felonies, he only was imprisoned twice.
                               The State argues that the habitual criminal enhancement is
                   not concerned with the number of times the individual passes through the
                   prison system but is concerned with the number of convictions. The State
                   avers that this court should recognize the statute as written by the
                   Legislature, which makes no reference to the number of prison sentences,
                   and decline to usurp the legislative function. 7


                         7 LaChance   argues for the first time in the reply brief that NRS
                   207.010(1) is ambiguous. Because the Nevada Rules of Appellate
                   Procedure do not allow litigants to raise new issues for the first time in a
                   reply brief, we decline to consider this argument. NRAP 28(c).

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                               The governing statute, NRS 207.010(1)(b), states that a person
                 who has been convicted of at least three felonies is a habitual criminal and
                 shall be punished for a category A felony. 8 However, "[t]he trial judge
                 may, at his or her discretion, dismiss a [habitual criminal]
                 count[,] . . . which is included in any indictment or information." NRS
                 207.010(2).
                               The determination of the number of prior felonies for the
                 habitual criminal enhancement is based on the statutory scheme created
                 by the legislature, not on extrajurisdictional caselaw.      See Cynthia L.
                 Sletto, Annotation, Chronological or Procedural Sequence of Former
                 Convictions as Affecting Enhancement of Penalty Under Habitual Offender
                 Statutes, 7 A.L.R. 5th 263 (1992) (revealing a split of authority on the
                 subject of whether "prior offenses and convictions must have occurred in
                 chronological sequence, with each subsequent offense having been
                 committed after conviction of the immediately preceding offense . . . the
                 resolution of which often depends on the language of the particular statute
                 under consideration and the court's opinion of what purpose such a statute
                 is intended to serve"); 24 C.J.S. Criminal Law § 2316 (2006) (stating that
                 the circumstantial application of enhancements is statutorily based).

                       8NRS    207.010(1)(a) provides that a person convicted of

                               [a]ny felony, who has previously been two times
                               convicted, whether in this State or elsewhere, of
                               any crime which under the laws of the situs of the
                               crime or of this State would amount to a felony is
                               a habitual criminal and shall be punished for a
                               category B felony by imprisonment in the state
                               prison for a minimum term of not less than 5
                               years and a maximum term of not more than 20
                               years.

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                             Based on the language and intent of NRS 207.010, we have
                held "that where two or more convictions grow out of the same act,
                transaction or occurrence, and are prosecuted in the same indictment or
                information, those several convictions may be utilized only as a single
                'prior conviction' for purposes of applying the habitual criminal statute."
                Rezin v. State, 95 Nev. 461, 462, 596 P.2d 226, 227 (1979); see also
                Halbower v. State, 96 Nev. 210, 211-12, 606 P.2d 536, 537 (1980) (same).
                This rule "is consistent with the policy and purpose of the recidivist
                statute. By enacting the habitual criminal statute, the legislature sought
                to discourage repeat offenders and to afford them an opportunity to
                reform." Rezin, 95 Nev. at 462-63, 596 P.2d at 227.
                             LaChance has given us no reason to depart from our prior
                interpretation of the statutory scheme and impose additional time-period
                constraints on prior convictions that are not provided for in the statute.
                NRS 207.010 allows for reform between felonious acts. This time for
                reform does not hinge on arrests and to so limit reform to time periods
                between prison terms would hobble the district court's discretion "to deal
                determinedly with career criminals who pose a serious threat to public
                safety."   Sessions, 106 Nev. at 191, 789 P.2d at 1245. Accordingly, we
                decline to impose additional constraints on the district court's
                discretionary determination of whether habitual criminal adjudication is
                warranted.
                             LaChance had been convicted of five prior felonies—(1) a
                November 14, 2002, conviction for felony battery causing substantial
                bodily harm for an event that took place on May 13, 2001; (2) a November
                14, 2002, felony conviction for possession of 4 grams or more but less than
                14 grams of a schedule I controlled substance for an event that took place

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                 on May 29, 2002; (3) a February 27, 2003, felony conviction for possession
                 of a stolen motor vehicle for an event that took place on October 9, 2002;
                 (4) an April 3, 2007, felony conviction for trafficking in a controlled
                 substance for an event that took place on October 3, 2006; and (5) an
                 August 23, 2012, felony conviction for possession of a controlled substance
                 for an event that took place on July 12, 2007. The record thus establishes
                 that LaChance has at least three separate and distinct prior felony
                 convictions for purposes of applying the habitual criminal statute. Our
                 analysis of Nevada's law on habitual offender enhancement leads us to
                 conclude that the district court was well within its discretion in sentencing
                 LaChance as a habitual offender.
                               Accordingly, we reverse the conviction for felony possession of
                 a controlled substance (count II), the lesser-included offense in this
                 instance, and otherwise affirm the judgment of conviction.


                                                                                     J.



                 We concur:


                                                  J.
                 Hardesty



                 Parraguirre




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