                                                     132 Nev., Advance Opinion54
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  STEVE DELL MCNEILL,                                   No. 66697
                  Appellant,
                  vs.                                                         FILED
                  THE STATE OF NEVADA,
                  Respondent.                                                  JUL 2 8 2016
                                                                              TRACIE   K. LINDEMAN
                                                                                               E COURT
                                                                         BY
                                                                              HIEF DEP7011-4.

                              Appeal from a judgment of conviction, pursuaniito a jury
                  verdict, of violation of conditions of lifetime supervision. Eighth Judicial
                  District Court, Clark County; Kathleen E. Delaney, Judge.
                              Reversed and remanded.


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

                  Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                  District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                  Jonathan J. Cooper, Deputy District Attorney, Clark County,
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                   OPINION
                  By the Court, DOUGLAS, J.:
                              In this appeal, we consider whether the State Board of Parole
                  Commissioners may impose conditions not enumerated in NRS 213.1243
                  on a sex offender subject to lifetime supervision. We conclude that the


SUPREME COURT
      OF
    NEVADA

(0) 1947A   ea>
                        plain language of NRS 213.1243 does not grant the Board authority to
                        impose additional conditions. We further conclude that this omission was
                        intentional because the Legislature may not delegate its power to
                        legislate. We therefore reverse the district court's judgment of conviction
                        based on violations of conditions of lifetime supervision not enumerated in
                        NRS 213.1243.
                                                      BACKGROUND
                                    Appellant Steve McNeill is a convicted sex offender on lifetime
                        supervision. According to McNeill's lifetime supervision agreement, he
                        was required to pay certain fees, submit to a urinalysis, meet a curfew,
                        and maintain full-time employment, among other things.
                                    After five years of lifetime supervision, McNeill was
                        reassigned to Ashley Mangan, a parole and probation officer in the sex
                        offender unit. McNeill reported to Mangan at the Division of Parole and
                        Probation for the first time in March 2013. Mangan established a curfew
                        for McNeill, requiring that he be present near the intersection of two
                        specified streets referred to as his "residence" between 5 p.m. and 5 a.m.'
                                    According to Mangan, she was unable to locate McNeill at his
                        residence when she went to visit McNeill to confirm that he was in
                        compliance with his curfew. Thus, when McNeill reported to Mangan in
                        April, Mangan requested that McNeill draw a map of where he was
                        sleeping. McNeill complied and requested an extended curfew. Mangan
                        established a later curfew, requiring that McNeill be at his residence by 8



                              'McNeill was homeless. Thus, the intersection of two streets was
                        established as his "residence."



SUPREME COURT
        OF
     NEVADA
                                                              2
(0) 1947A    4   (eA)

                                                                                 •"1=',--agaM
                   p.m. rather than 5 p.m. McNeill also revealed that he had not been
                   attending counseling. Mangan requested that he reenroll.
                               When McNeill reported in May, he provided different cross
                   streets for his residence and drew Mangan a more detailed map of where
                   he was sleeping.
                               Mangan did not meet with McNeill in June because McNeill
                   was assigned to another officer for supervision. However, McNeill was
                   assigned to Mangan again in July. According to Mangan, when she
                   contacted McNeill to inform him that she would be supervising him again,
                   he hung up on her.
                               When McNeill went to meet with Mangan later in July,
                   Mangan arrested McNeill for noncompliance. According to Mangan,
                   McNeill failed to attend counseling, make curfew, pay fees, and maintain
                   employment. The State declined to proceed with charges.
                               In August, upon McNeill's arrival, Mangan requested that he
                   submit to a urinalysis. McNeill refused. Mangan then took McNeill to
                   meet with her supervisor, who was unable to persuade McNeill to comply.
                   McNeill affirmed that he would not submit to urinalyses, had no plans to
                   abide by a curfew, and would sleep where he chose.
                               Thereafter, Mangan attempted to contact McNeil in person
                   near the identified intersection and by phone, but was unsuccessful.
                   McNeill did not report thereafter Instead, he sent a cease and desist
                   letter stating that the Division of Parole and Probation had no authority
                   over him and advising that it should discontinue contacting him.
                               The State filed a criminal complaint in March 2014, charging
                   McNeill with violation of conditions of lifetime supervision (count 1) and
                   prohibited acts by a sex offender (count 2). The State alleged that McNeill

SUPREME COURT
        OF
     NEVADA
                                                        3
(0) 1947A    lie
                violated conditions of lifetime supervision by refusing to submit to a
                urinalysis, failing to report, failing to obtain residence approval, failing to
                cooperate with his supervising officer, failing to maintain full-time
                employment, failing to abide by a curfew, and being terminated from his
                sex offender counseling.
                            After a three-day trial, McNeill requested a directed verdict on
                both charges. The district court dismissed count two, but the jury found
                McNeill guilty on count one. The district court also denied McNeill's
                subsequent motion for an arrest of judgment, determining that the Board
                of Parole Commissioners had authority through the language of NRS
                213.1243 to establish conditions of lifetime supervision not enumerated in
                the statute This appeal followed.
                                                DISCUSSION
                            On appeal, McNeill contends that NRS 213.1243 does not
                delegate authority to the Board to impose additional lifetime supervision
                conditions that are not enumerated in the statute. Thus, McNeill argues
                that he did not violate NRS 213.1243, even if he violated the additional
                conditions imposed by the Board. In contrast, the State argues that the
                Board may establish additional conditions not specifically enumerated in
                NRS 213.1243 when supervising a sex offender on lifetime supervision.
                            "[W]e review questions of statutory interpretation de novo."
                State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). When
                interpreting statutes, we give effect to legislative intent. Id. "The starting
                point for determining legislative intent is the statute's plain meaning;
                when a statute is clear on its face, a court cannot go beyond the statute in
                determining legislative intent." Id. (internal quotations omitted).



SUPREME COURT
        OF
     NEVADA
                                                       4
(U) 1947A
                             We conclude that the plain language of NRS 213.1243 does not
                 delegate authority to the Board to impose additional conditions not
                 enumerated. NRS 213.1243(1) provides that "M he Board shall establish
                 by regulation a program of lifetime supervision of sex offenders" and that
                 the program must provide for supervision by officers in the Division of
                 Parole and Probation. The conditions of lifetime supervision are explicitly
                 set forth in the statute. 2 For example, NRS 213.1243(3) provides that a
                 sex offender's residence must be approved by a supervising officer, and a
                 sex offender must keep the Division aware of his or her current address.
                 Subsection 4 of NRS 213.1243 further provides that, as a condition of
                 lifetime supervision, a Tier 3 sex offender must stay 500 feet away from
                 certain enumerated places. There are additional residence, stay-away,
                 and monitoring conditions for a Tier 3 sex offender convicted of certain
                 sexual offenses involving a child under the age of 14 years. NRS
                 213.1243(5). The program of lifetime supervision must also include a no-
                 contact condition. NRS 213.1243(10). A violation of any condition
                 imposed is a Category B felony that may be "punished by imprisonment in
                 the state prison for a minimum term of not less than 1 year and a
                 maximum term of not more than 6 years, and may be further punished by
                 a fine of not more than $5,000." NRS 213.1243(8). What is not included in
                 NRS 213.1243 is any suggestion that additional conditions may be
                 imposed, and without an explicit grant of authority, we presume the


                       The Board is not required to impose the conditions set forth in
                       2

                 subsections 3, 4, and 5 of the statute if the Board finds and states in
                 writing that extraordinary circumstances are present.         See NRS
                 213.1243(9).



SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A    e
                  omission to be deliberate.   Sheriff v. Andrews, 128 Nev. 544, 547-48, 286
                  P.3d 262, 264 (2012) (concluding that because NRS 212.093(1) does not
                  specifically prohibit county jail inmates from possessing cell phones, the
                  plain and unambiguous language did not proscribe the conduct).
                                Our assumption of purposeful omission is especially
                  appropriate in conjunction with the consideration that we do not presume
                  that the Legislature has done something absurd. Eller Media Co. v. City
                  of Reno, 118 Nev. 767, 770, 59 P.3d 437, 439 (2002) ("[S]tatutes should
                  always be construed so as to avoid absurd or unreasonable results.").
                  Without a doubt, the Legislature may not delegate its power to legislate.
                  Sheriff v. Luqman, 101 Nev. 149, 153, 697 P.2d 107, 110 (1985); see also
                  Nev. Const. art. 3, § 1; Panama Refining Co. v. Ryan, 293 U.S. 388, 421
                  (1935) (similarly noting that legislative power is vested in Congress). And
                  because a violation of a condition of lifetime supervision is a new crime,
                  see NRS 213.1243(8), if the statute is read to mean, as the State suggests,
                  that the Board may create additional conditions, then the Board would
                  effectively have authority to create law. Because we presume that the
                  Legislature is aware that it may not delegate the power to legislate
                  pursuant to the separation of powers, we presume that it acted in
                  accordance.
                                The State argues that the Legislature may appropriately
                  delegate authority to administrative agencies to facilitate the practical
                  execution of laws it enacts without violating the separation of powers. It
                  is well settled that lailthough the legislature may not delegate its power
                  to legislate, it may delegate the power to determine the facts or state of
                  things upon which the law makes its own operations depend." Luqman,
                  101 Nev. at 153, 697 P.2d at 110.

SUPREME COURT
        OF
     NEVADA
                                                       6
(0) 1947A    (e
                            Thus, the legislature can make the application or
                            operation of a statute complete within itself
                            dependent upon the existence of certain facts or
                            conditions, the ascertainment of which is left to
                            the administrative agency. Telford v. Gainesville,
                            65 S.E.2d 246 (Ga. 1951). In doing so the
                            legislature vests the agency with mere fact finding
                            authority and not the authority to legislate. Ex rel.
                            Ginocchio v. Shaughnessy, [47 Nev. 129, 217 P.
                            581 (1923)]. The agency is only authorized to
                            determine the facts which will make the statute
                            effective. Montoya v. O'Toole, 610 P.2d 190 (N.M.
                            1980); State v. King, 257 N.W.2d 693 (Minn. 1977);
                            People v. Uriel, 255 N.W.2d 788 (Mich. Ct. App.
                            1977); State v. Kellogg, 568 P.2d 514 (Idaho 1977);
                            see generally 1 Am Jur.2d Administrative Law, §
                            123 (1962), Such authority will be upheld as
                            constitutional so long as suitable standards are
                            established by the legislature for the agency's use
                            of its power. These standards must be sufficient to
                            guide the agency with respect to the purpose of the
                            law and the power authorized. Egan v. Sheriff, [88
                            Nev. 611, 503 P.2d 16(1972)]; No. Las Vegas v.
                            Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
                            (1967). Sufficient legislative standards are
                            required in order to assure that the agency will
                            neither act capriciously nor arbitrarily. See United
                            States v. Pastor, 557 F.2d 930 (2d Cir.1977).
                Id. at 153-54, 697 P.2d at 110.
                            The State likens the case at bar to Luqman. In Luqman, the
                Clark County Sheriff's Department appealed from orders granting
                pretrial habeas corpus relief to individuals detained for violating Nevada's
                controlled substance act. Id. at 151, 697 P.2d at 108. One of the issues
                raised was whether an amendment to the Uniform Controlled Substances
                Act unconstitutionally delegated the legislative power to define the
                elements of a crime to the state board of pharmacy.     Id. We determined

SUPREME COURT
        OF
     NEVADA
                                                      7
(0) 1947A
                       that the delegation of authority was not unconstitutional because the
                       board was merely acting as a fact-finder. Id. at 154, 697 P.2d at 110-11.
                       We explained that "the act retained both the general and specific
                       guidelines listing various factors which are to be taken into account by the
                       pharmacy board when scheduling drugs as well as delineating the
                       requirements by which a drug is classified in an appropriate schedule."
                       Id.
                                   This case is distinguishable from Luqman.      In enacting NRS
                       213.1234, the Legislature did not explicitly provide the Board the
                       authority to create additional conditions. And even assuming that the
                       Legislature had intended to do so, that delegation of power would fail
                       because the Legislature has not provided guidelines informing the Board
                       how, when, or under what circumstances, it may create additional
                       conditions. See id.
                                   Despite the missing language and potential problems
                       concerning the delegation of authority if read alternatively, the district
                       court found justification for its conclusion that the Board may establish
                       additional conditions in the language of NRS 213.1243(8): "[Al" sex
                       offender who commits a violation of a condition imposed on him or her
                       pursuant to the program of lifetime supervision is guilty of a category B
                       felony." (Emphasis added.) Presumably, then, the district court reasoned
                       that if the Legislature did not intend to permit the Board to add
                       conditions, then it would have more narrowly provided in subsection 8 "a
                       condition imposed ... pursuant to NRS 213.1243,"           rather than "a
                       condition imposed . . . pursuant to the program of lifetime supervision."
                       We conclude that, although the Legislature could have more narrowly
                       tailored the language, "a condition imposed. . . pursuant to the program of

SUPREME COURT
        OF
     NEVADA
                                                            8
(0) 1947A    aell)(0




                                               4;:„
                lifetime supervision" necessarily encompasses only the conditions
                enumerated by the Legislature in NRS 213.1243. Thus, it cannot be
                concluded from a plain reading that the Legislature extended authority to
                the Board to create additional conditions, rather than for the Board to
                create a program including the conditions enumerated in NRS 213.1243 to
                be carried out by the Division's officers.
                             Because the Board has no authority to impose conditions not
                enumerated in NRS 213.1243, the nonenumerated conditions the Board
                imposed on McNeill were unlawful, and McNeill did not violate the law
                when he failed to comply. It is not, however, clear which condition(s) the
                jury found McNeill violated: refusing to submit to a urinalysis, failing to
                report, failing to have his residence approved, failing to cooperate with his
                supervising officer, failing to maintain full-time employment, failing to
                abide by a curfew, and/or being terminated from his sex offender
                counseling. Only one of these purported violations is enumerated in NRS
                213.1243: failure to have a residence approved.       See NRS 213.1243(3).
                And it cannot be concluded that the jury found that McNeill failed to have
                his residence approved because the charging document and jury
                instructions allowed the jury to find him guilty based on one or more of the
                identified violations.




SUPREME COURT
        OF
      NEVADA

                                                       9
(0)
                                    Because the Board-imposed conditions were unlawful, and any
                Board violations cannot be separated from any NRS 213.1243 violations,
                we reverse the judgment of conviction and remand for a new trial on the
                violation of failure to have a residence ap roved. 3



                                                            Douglas

                We concur:


                                                   . C A.
                Parraguirre




                Hardesty


                   akta
                Cherry




                Saitta




                Gibbons




                Pickering       •




                         3 In
                        light of this ruling, we need not address McNeill's remaining
                arguments on appeal.



SUPREME COURT
        OF
     NEVADA
                                                             10
(0) 1947A
