                                                       131 Nev., Advance Opinion      62.
                        IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   DOMINIC SANTINO CASSINELLI,                           No. 64881
                   Appellant,                                                       FILED
                   vs.
                   THE STATE OF NEVADA,                                              AUG 2 7 2015
                   Respondent.                                                     TRACiT K. LINDEMAN!
                                                                                 CLELINFVSORichiN CQL.KRT
                                                                              BY
                                                                                                    RK




                              Appeal from a judgment of conviction, entered pursuant to an
                   Alford plea,' of coercion and preventing or dissuading a person from
                   testifying. Sixth Judicial District Court, Pershing County; Richard
                   Wagner, Judge.
                              Affirmed in part, vacated in part, and remanded.


                   Law Offices of John E Oakes and John E. Oakes, Reno; Richard F.
                   Cornell, Reno,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; R. Bryce Shields,
                   District Attorney, Pershing County,
                   for Respondent.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.




                        'North Carolina v. Alford, 400 U.S. 25 (1970).

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                                                     OPINION
                   By the Court, SILVER, J.:
                               Appellant Dominic Cassinelli pleaded guilty to coercion and
                   preventing or dissuading a person from testifying. The guilty plea
                   resulted from allegations made by Cassinelli's long-time girlfriend that he
                   had sexually abused her. Cassinelli requested the district court to defer
                   sentencing and assign him to a treatment program for alcohol abuse under
                   NRS Chapter 458 rather than impose a term of incarceration.
                               The primary legal issue before this court is whether NRS
                   458.300(1)(d) precludes eligibility for a drug or alcohol treatment program
                   for the crime of coercion, where the acts underlying the crime fall within
                   the definition of domestic violence, but the defendant had not pleaded
                   guilty to a charged felony "which constitutes domestic violence as set forth
                   in NRS 33.018." We hold that when determining eligibility to elect a
                   program of treatment, the district court may only consider the actual
                   crime the defendant pleaded guilty to or was found guilty of by a jury.
                               We further determine whether, in this case, the district court
                   erred by finding Cassinelli ineligible for a treatment program, whether the
                   district court abused its discretion by denying Cassinelli's motion to elect a
                   program of treatment under Chapter 458 on alternate grounds, whether
                   there was prosecutorial misconduct, whether error arises from Cassinelli's
                   inability to cross-examine the victim during her victim-impact statement,
                   and whether the sentence imposed is illegal.
                               We conclude the district court erred by determining that the
                   acts underlying the crime involved domestic violence and, thereafter,
                   concluding that Cassinelli was ineligible for a treatment program under
                   Chapter 458. We nevertheless affirm the district court's decision not to

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                   assign Cassinelli to a treatment program, as ultimately sentencing is left
                   to the sound discretion of the district court. We also affirm the district
                   court on the remaining issues, with the exception of the sentence imposed
                   on Count II (preventing or dissuading a person from testifying), which we
                   hold is illegal. We vacate Cassinelli's sentence on Count II and remand
                   this case only for the district court to resentence him on the gross
                   misdemeanor.
                                    FACTUAL AND PROCEDURAL HISTORY
                               Appellant Dominic Cassinelli and the victim were involved in
                   a romantic relationship from 2006 to 2012. They had two children
                   together. During that time, Cassinelli was employed as a police officer in
                   Winnemucca.
                               At the preliminary hearing, testimony established that the
                   pair engaged in sadomasochistic sex acts. The victim testified that she
                   consented in the beginning of the relationship, but over time, the violence
                   escalated to the point where she no longer wished to participate in
                   sadomasochistic sex acts. Eventually the victim took the couple's children
                   and moved away. After the victim discovered that Cassinelli began seeing
                   another woman, the victim reported to the Winnemucca Chief of Police
                   that Cassinelli had sexually assaulted her. Although the victim had
                   accused him of domestic violence in the past, Cassinelli had no convictions
                   on his record.
                               The case was referred to the Nevada Division of Investigation.
                   The victim reported specific incidents of sexual assault, involving
                   handcuffing, binding, blindfolding with duct tape, and suspension from the
                   ceiling with harnesses and straps. The victim also reported that
                   Cassinelli threatened to kill her and pointed a loaded assault rifle and
                   handgun at her while their children were present. Further, the victim
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                   advised investigators that the children witnessed Cassinelli sexually
                   assaulting her. The victim provided investigators with photographs and
                   an event journal to substantiate her claims.
                               Prosecutors charged Cassinelli with four counts of sexual
                   assault; five counts of battery with intent to commit sexual assault or, in
                   the alternative, domestic battery with strangulation; two counts of abuse,
                   neglect, or endangerment of a child; two counts of misdemeanor domestic
                   battery; and two counts of unlawful capture/distribution/display of image
                   of private area of another.
                               The parties reached a plea agreement, wherein Cassinelli
                   entered an Alford plea to coercion, a felony (Count I), and preventing or
                   dissuading a person from testifying, a gross misdemeanor (Count II). The
                   parties agreed Count I would not be treated as "sexually motivated."
                   Further, Count I contained no language in the information reflecting that
                   the coercion constituted domestic violence. The State agreed it would not
                   oppose treatment if Cassinelli was eligible for a program of treatment
                   under Chapter 458. The parties were free to argue during sentencing
                   regarding punishment with regard to Count II.
                               At sentencing, Cassinelli requested and the State
                   recommended to the district court, a program involving treatment under
                   NRS 458.300 for Count I because it believed Cassinelli was eligible based
                   upon his evaluation recommending alcohol treatment. The State then
                   argued for the maximum sentence of 364 days in jail for Count II.
                   Cassinelli had already spent 279 days in custody. As the final component
                   of the combined hearing on the motion to elect treatment and sentencing,
                   the victim addressed the court with her impact statement.



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                               The district court acknowledged that Cassinelli was eligible
                   for alcohol treatment under NRS 458.300 but stated "whether that's to be
                   given is another issue. That's up to me as the judge." The district court,
                   however, did not subsequently specifically address Cassinelli's request for
                   a program of treatment under Chapter 458. Instead, the court sentenced
                   Cassinelli to a prison term of 14-48 months for Count I, and a consecutive
                   jail term of 364 days for Count II. The court suspended the sentence on
                   Count II and imposed a three-year term of probation, to run consecutive to
                   Count I.
                               Cassinelli appealed, claiming that his sentence was illegally
                   imposed because the district court failed to adjudicate his motion for
                   treatment pursuant to NRS 458.290 et seq., prior to imposing sentence.
                   The parties filed a "Stipulation for Order of Remand," in which the parties
                   agreed that the record did not reveal that the district court had expressly
                   adjudicated the motion for election of treatment prior to sentencing
                   Cassinelli. Because the record revealed the district court had determined
                   that Cassinelli was eligible for treatment and implicitly denied the motion,
                   but the record was silent on the basis for the denial, the Nevada Supreme
                   Court approved the parties' stipulation and remanded the appeal to the
                   district court for the limited purpose of entering an order explaining its
                   ruling. Cassinelli v. State, Docket No. 64881 (Order of Limited Remand,
                   June 11, 2014).
                               On remand, the district court entered a written "Order
                   Adjudicating Motion for Election of Treatment." The district court
                   reconsidered its original position that Cassinelli was eligible for
                   assignment to a program for alcohol treatment under NRS 458.300. The
                   district court ruled that the acts underlying Cassinelli's guilty plea

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                   constituted domestic violence as defined in NRS 33.018. Therefore,
                   despite the fact Cassinelli pleaded guilty to coercion pursuant to NRS
                   207.190, the court found that Cassinelli was not eligible to elect a program
                   of treatment pursuant to NRS 458.300(1)(d). The court further ruled that
                   even if Cassinelli were eligible for treatment, Cassinelli was not likely to
                   be rehabilitated through alcohol treatment and was not otherwise a good
                   candidate for treatment, therefore his motion was denied. We now
                   consider Cassinelli's direct appeal from his judgment of conviction and
                   sentence.
                                                   ANALYSIS
                               On appeal, Cassinelli argues that (1) the district court
                   incorrectly determined that he was not eligible for assignment to a
                   program of treatment for alcohol abuse under Chapter 458; (2) assuming
                   he was eligible to elect a program of treatment under Chapter 458, the
                   district court abused its discretion by denying his motion to elect
                   treatment; (3) the prosecutor engaged in misconduct during sentencing; (4)
                   the district court erred by not allowing cross-examination of the victim
                   after her impact statement to the court; and (5) the sentence the district
                   court imposed was illegal. For the following reasons, we affirm in part.
                   The district court erred by ruling that Cassinelli was not eligible for
                   alcohol treatment under Chapter 458
                               NRS 458.300(1)(d) provides that a person who is convicted of a
                   crime that is "Lain act which constitutes domestic violence as set forth in
                   NRS 33.018" is not eligible for assignment to a program of treatment for
                   the abuse of alcohol or drugs. Cassinelli argues that nothing in NRS
                   458.300(1) makes a person ineligible for treatment if convicted of the
                   crime of coercion pursuant to NRS 207.190. The State counters that
                   Cassinelli was ineligible under NRS 458.300(1)(d) because the underlying
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                   facts in this case constitute acts of domestic violence as defined by NRS
                   33.018(1)(c).
                                   We review questions of statutory interpretation de novo.
                   Hobbs v. State, 127 Nev. 234, 237, 251 P.3d 177, 179 (2011). In
                   interpreting a statute, we give the statute its plain meaning and consider
                   the statute as a whole, awarding meaning to each word, phrase, and
                   provision. Haney v. State, 124 Nev. 408, 411-12, 185 P.3d 350, 353 (2008).
                   We strive to avoid rendering any words or phrases superfluous or
                   nugatory. Id. Nevada's criminal statutes should be interpreted to provide
                   both fairness and simplicity. NRS 169.035 (also referring to "the
                   elimination of unjustifiable expense and delay").
                                   Only if the statute is ambiguous do we look beyond the
                   statute's language to legislative history or other sources to determine the
                   intent of the statute. Attaguile v. State, 122 Nev. 504, 507, 134 P.3d 715,
                   717 (2006). Ambiguity arises where the statute's "language lends itself to
                   two or more reasonable interpretations." State v. Catanio, 120 Nev. 1030,
                   1033, 102 P.3d 588, 590 (2004). When a criminal statute is ambiguous, we
                   construe the statute in favor of the accused. Haney, 124 Nev. at 412, 185
                   P.3d at 353.
                                   The portion of NRS 458.300 at issue here provides:
                                   [A]n alcoholic. . . who has been convicted of a
                                   crime is eligible to elect to be assigned by the court
                                   to a program of treatment for the abuse of alcohol
                                   or drugs . . . unless:
                                         1. The crime is:


                                         (d) An act which constitutes domestic
                                   violence as set forth in NRS 33,018.


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                                 The statute plainly removes from eligibility a person who is
                     convicted of a crime constituting domestic violence. Less clear is what the
                     sentencing judge may consider when determining whether the crime is "an
                     act which constitutes domestic violence."
                                 Cassinelli argues that a district court should only consider the
                     crime for which the defendant is convicted of in determining eligibility.
                     The State argues that when determining eligibility, the court may look at
                     the underlying facts in each case. 2
                                 Both interpretations are reasonable. The language stating
                     "Mlle crime is. . . [a] n act which constitutes domestic violence" may be
                     construed as requiring that the actual crime the defendant is convicted of
                     be delineated in the charging document as "constituting domestic violence"
                     before a court may preclude eligibility under the statute. NRS
                     458.300(1)(d) (emphasis added). Yet, because subsection (d) uses the
                     broader term "act," while the remaining subsections provide that the
                     disqualifying crime must itself be a "crime" or "offense," an inference is
                     raised that, in situations where the facts of the crime may fall within the
                     definition of domestic violence, the sentencing judge may look at the acts
                     underlying the crime in determining eligibility. Because the language of
                     the statute supports two reasonable interpretations, we turn to the
                     legislative history in determining the legislative intent. See Catanio, 120
                     Nev. at 1033, 102 P.3d at 590 ("Legislative intent is the controlling factor
                     in statutory construction.").



                           2We note the State conceded below and at oral argument that, prior
                     to the district court's ruling on remand, the State believed Cassinelli was
                     eligible for a treatment program.

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                               NRS 458.300 was amended in 1975, see 1975 Nev. Stat., ch.
                   553, § 1, at 971, although the language now found in subsection (1)(d) was
                   not added until 1995 through Assembly Bill 84. See 1995 Nev. Stat., ch.
                   157, § 1(1), at 235; Hearing on A.B. 84 Before the Assembly Judiciary
                   Comm., 68th Leg. (Nev., April 19, 1995); Hearing on A.B. 84 Before the
                   Senate Judiciary Comm., 68th Leg. (Nev., May 15, 1995). A.B. 84
                   proposed several amendments to the statute, and the legislative history
                   makes clear this bill was meant to expand, as opposed to limit, eligibility
                   for drug and alcohol treatment programs. Hearings on A.B. 84 Before the
                   Assembly Judiciary Comm , 68th Leg. (Nev., February 6 and 24, 1995). At
                   several points, legislators referred to A.B. 84 as encompassing persons
                   who had been charged with or convicted of domestic violence. 3 Hearings
                   on A.B. 84 Before the Assembly Judiciary Comm., 68th Leg. (Nev.,
                   February 24 and April 19, 1995); Hearings on A.B. 84 Before the Senate
                   Judiciary Comm., 68th Leg. (Nev., May 15, 1995). However, it appears the
                   Legislature wished to exclude defendants who pleaded guilty or were
                   found guilty of "battery constituting domestic violence" because these
                   defendants had access to other programs tailored to stop recidivism.
                   Hearing on A.B. 84 Before the Assembly Judiciary Comm., 68th Leg.
                   (Nev., April 19, 1995); Hearings on A.B. 84 Before the Senate Judiciary
                   Comm., 68th Leg. (Nev., May 15, 1995).




                          3 For example, it was specifically noted that the amendment would
                   exclude "misdemeanor domestic violence convictions{.]" Hearing on A.B.
                   84 Before the Senate Judiciary Comm., 68th Leg. (Nev., February 24,
                   1995).

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                                Nothing in the legislative history indicates the Legislature
                    intended for the sentencing judge to consider whether the underlying acts
                    of a crime constitute domestic violence for the purpose of determining
                    eligibility. In fact, it appears quite the opposite is true and the
                    Legislature intended the eligibility determination to be based solely on the
                    crime with which the defendant was charged with or found guilty of. The
                    primary focus of A.B. 84 was increasing eligibility for drug and alcohol
                    treatment programs. The Legislature recognized that plea bargaining
                    within the criminal justice system is very common and some defendants
                    would be able to plead down their charges and be eligible for a program of
                    treatment. Hearings on A.B. 84 Before the Assembly Judiciary Comm.,
                    68th Leg. (Nev., February 6 and 24, 1995).
                                Prosecutors are granted the authority to consider each case
                    individually and charge or negotiate pleas in most criminal cases.
                    Further, prosecutors consider both the underlying facts of a crime and
                    punishment sought in negotiating a charge when prosecuting a case
                    within the system. The Legislature could have precluded plea bargains
                    that would make an otherwise ineligible defendant eligible for a program
                    of treatment under Chapter 458, however it did not do so.
                                Here, the prosecutor plea bargained charges in this case to
                    coercion without specifically delineating the coercion as constituting
                    domestic violence. In the guilty plea agreement, the prosecutor
                    affirmatively agreed not to oppose a program for alcohol treatment if an
                    evaluation confirmed that Cassinelli was a good candidate for alcohol
                    treatment pursuant to Chapter 458. At sentencing, based on the
                    evaluation, the prosecutor affirmatively recommended an alcohol
                    treatment program with probation on the coercion charge. Even the

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                   district court believed that Cassinelli was eligible for treatment under this
                   statute. Thus, the prosecutor, the district court, and Cassinelli all
                   believed he was eligible for alcohol treatment despite the fact that the
                   underlying acts involved domestic violence in this case. Moreover,
                   Cassinelli pleaded guilty to felony coercion. The information and the
                   guilty plea agreement did not specifically delineate Cassinelli's coercion as
                   constituting domestic violence, which would have placed all parties on
                   notice that Cassinelli was ineligible for alcohol treatment under Chapter
                   458.
                               We hold that in considering eligibility under NRS
                   458.300(1)(d), the sentencing judge is limited to considering only the
                   delineated crime that the defendant pleaded guilty to or was found guilty
                   of, rather than considering whether the underlying acts involved in the
                   crime constitute domestic violence. Fairness and due process ensure that
                   defendants know at the time they plead guilty whether they may be
                   eligible for a treatment program pursuant to Chapter 458. The prosecutor
                   has discretion to resolve a criminal charge, including whether to add
                   language to an information or indictment alleging that the crime itself
                   constitutes domestic violence. This effectively gives all criminal
                   defendants notice at the time of pleading guilty whether they may be
                   eligible for drug and alcohol treatment under NRS 458.300 and removes
                   any ambiguity otherwise arising from requiring the district court to
                   determine whether the underlying facts constitute or do not constitute
                   domestic violence.
                               Cassinelli pleaded guilty to felony coercion. Cassinelli did not
                   plead guilty to coercion constituting domestic violence. The State did not



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                   allege in the information that this coercion constituted domestic violence. 4
                   During negotiations, and at sentencing, it is clear that Cassinelli, the
                   State, and the district court, all believed Cassinelli's crime did not
                   preclude him from eligibility for alcohol treatment under Chapter 458.
                   Accordingly, the district court's conclusion upon remand that NRS
                   458.300(1)(d) excluded Cassinelli from eligibility for alcohol treatment was
                   error.
                                This conclusion does not end our inquiry, however, because in
                   this case the district court alternatively denied Cassinelli's request to be
                   placed in a treatment program pursuant to Chapter 458 because the court
                   found that he was not likely to be rehabilitated through treatment or was
                   not otherwise a good candidate for treatment. We note that either basis,
                   standing alone, is sufficient to deny treatment. We therefore consider
                   whether the district court abused its discretion by denying Cassinelli's
                   request below. For the following reasons, we conclude that the district
                   court did not abuse its discretion by denying Cassinelli's requests on these
                   bases.
                   The district court did not abuse its discretion by denying Cassinelli's
                   request for assignment to a program of treatment
                                Cassinelli claims that the district court abused its discretion
                   by denying his request for assignment to a program of treatment on the

                           We note that the prosecutor purposefully negotiated Cassinelli's
                            4

                   charges to coercion without sexual motivation. The prosecutor negotiated
                   this despite the fact that Cassinelli was originally charged with the crime
                   of sexual assault. By not alleging that Cassinelli's crime involved a
                   sexually motivated coercion, this prosecutor used his discretion to
                   effectively change the penalty involved at sentencing, and Cassinelli, too,
                   was cognizant of the difference in the penalty at the time he pleaded
                   guilty.

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                   basis that he was not likely to be rehabilitated through treatment or was
                   not otherwise a good candidate for treatment. Cassinelli further asserts
                   that the district court improperly distinguished between benefiting from a
                   treatment program and being likely to be rehabilitated through a
                   treatment program. Cassinelli also argues that the court denied him
                   entry into a treatment program because he entered an Alford plea and
                   never admitted guilt. Therefore, the court's decision to sentence him to
                   prison was based on prejudice and preference. We disagree.
                                NRS 458.320(2) provides: "If the court, acting on the report or
                   other relevant information, determines that the person is not an alcoholic
                   or drug addict, is not likely to be rehabilitated through treatment or is
                   otherwise not a good candidate for treatment, the person may be
                   sentenced and the sentence executed." 5 Although the district court
                   determined that Cassinelli was an alcoholic, it failed to clearly make
                   separate findings regarding whether Cassinelli was likely to be
                   rehabilitated or was not otherwise a good candidate. Nevertheless, we
                   consider in turn the three aspects of the statute in light of the district
                   court's findings.
                         The district court reluctantly determined that Cassinelli was an
                         alcoholic
                                In making its determination under the statute, the district
                   court may consider evaluations regarding whether the individual is an
                   alcoholic or drug addict and is likely to be rehabilitated through


                         5The legislative history of NRS 458.320 indicates a district court has
                   discretion when determining whether to grant or deny a motion for notice
                   of election under this statute. See Minutes, Hearing on A.B. 413 Before
                   the Assembly Judiciary Comm., 64th Leg. (Nev., April 1, 1987).

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                   treatment, as well as any other relevant information. NRS 458.310(1);
                   NRS 458.320(2); see also Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 1159,
                   1161 (1976) (noting the trial court, at sentencing, "is privileged to consider
                   facts and circumstances which clearly would not be admissible at trial").
                               Here, the district court conducted a hearing regarding
                   eligibility for treatment under NRS 458.300 simultaneously with
                   Cassinelli's sentencing. In determining whether Cassinelli was an
                   alcoholic, the district court considered a facility evaluation recommending
                   placement into an alcohol treatment program.
                               The district court found, albeit reluctantly, that Cassinelli was
                   an alcoholic, based upon the testimony at the hearing and the evaluations.
                   The district court voiced concerns with this designation, citing "some
                   reservations" arising from the fact that the evaluator was picked by
                   defense counsel, and the evaluation contained language indicating to
                   defense counsel that the evaluation could be revised in the manner
                   defense counsel requested. Despite these concerns, the district court
                   found Cassinelli to be an alcoholic. Based on the factual findings in the
                   record, the district court did not abuse its discretion by determining
                   Cassinelli was an alcoholic.
                         The district court found that Cassinelli would not likely be
                         cehabilitated through an alcohol treatment program
                               The district court conducted a hearing regarding eligibility for
                   treatment under NRS 458.300 simultaneously with Cassinelli's
                   sentencing. 6 During that hearing, the district court first correctly


                         6We take this opportunity to caution district courts against failing to
                   make specific findings, separate and apart from the sentencing record,
                   regarding a determination of whether to assign a defendant to a treatment
                   program pursuant to Chapter 458. Making separate and specific findings
                                                                       continued on next page...
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                   distinguished between benefiting and being likely to be rehabilitated. See
                   NRS 458.320(1) ("If the court. . . determines that the person. . . is not
                   likely to be rehabilitated through treatment. . . the person may be
                   sentenced and the sentence executed." (emphasis added)). The district
                   court concluded, although Cassinelli may benefit from a program of
                   treatment, that he would not likely be rehabilitated through such
                   treatment. Most importantly, the district court noted:
                               Defendant demonstrated little ability to be
                               rehabilitated. Throughout the sentencing, it
                               appeared that the Defendant believed he should
                               have special consideration because he is a "3rd
                               generation Nevadan" and that his father had a
                               good reputation as a long-time Reno police officer.
                               At no time did the Defendant demonstrate any
                               humility necessary for treatment.
                   (Emphasis added.) Thus, the district court specifically made findings that
                   in this case Cassinelli would not likely be rehabilitated from alcohol abuse
                   if the court assigned Cassinelli to an alcohol treatment program.
                               The facts and evidence support these findings. Successful
                   rehabilitation hinges largely on the defendant's state of mind, particularly
                   the defendant's humility and willingness to take accountability for
                   alcoholism. However, the presentence investigation report prepared by
                   the Division of Parole and Probation noted that Cassinelli "does not
                   believe alcoholic beverages are problematic for him." This was contrary to



                   ...continued
                   on the record alleviates potential issues and confusion that may otherwise
                   arise upon appellate review. This is especially true where, as here, the
                   hearing for assignment to a treatment program was heard along with
                   Cassinelli's sentencing hearing.

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                   what Cassinelli otherwise explained to evaluators for the program.
                   Further, Cassinelli's lack of humility during the hearing and sentencing
                   strongly indicated that he was not willing to take accountability for his
                   alcoholism, driving the conclusion that an alcohol treatment program
                   would be ineffectual. And, as discussed below, Cassinelli's criminal acts
                   went far beyond the issue of alcohol abuse. We conclude that the district
                   court did not abuse its discretion by determining that Cassinelli was not
                   likely to be rehabilitated from the abuse of alcohol and refusing to assign
                   him to an alcohol treatment program on this basis.
                         The district court determined that Cassinelli was not otherwise a
                         good candidate for alcohol treatment in this case
                               In addition to finding that Cassinelli was not likely to be
                   rehabilitated by treatment, the district court determined that Cassinelli
                   was not otherwise a good candidate for a program of treatment.
                   Importantly, during the hearing, the district court found Cassinelli's
                   testimony unbelievable and the victim's testimony credible. The court's
                   order concluded that Cassinelli's criminal acts with firearms involving
                   sexual, verbal, physical, and child abuse were "of the worst kind" and,
                   rather than stemming from alcoholism, were grounded in "a man
                   establishing improper control over a woman by the sexual and mental
                   abuse that was prevalent in this case." Rather than granting Cassinelli's
                   request to elect a program of treatment, which would result in the
                   dismissal of the coercion charge and ultimately seal his record, the district
                   court, instead, opted to hold Cassinelli accountable for his crime by
                   sentencing Cassinelli to prison.




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                                This was not an abuse of discretion. 7 The record supports the
                   district court's conclusion that Cassinelli was not otherwise a good
                   candidate for a dismissal with assignment to an alcohol treatment
                   program. The victim's impact statement reflected multiple instances of
                   Cassinelli's severe physical, sexual, and verbal abuse. Graphic
                   photographs and an event journal corroborated the victim's testimony.
                   Cassinelli appeared to be unaffected by the harm his violent acts caused
                   the couple's children, who were also present during some of his crimes.
                   And, because the facility report only concluded that Cassinelli was likely
                   to benefit from such a program, the district court may have concluded that
                   Cassinelli was not even eligible because NRS 458.320(1) requires that the
                   facility determine that the person is likely to be rehabilitated.
                                We further note that NRS 458.300 does not bar Cassinelli
                   from a treatment program based on what he pleaded guilty to and because
                   the district court found that he was an alcoholic. The statute and the
                   legislative history make clear that the Nevada Legislature recognized that

                         7 We  note that if refusing to permit a person to participate in a
                   treatment program and sending that person to prison instead constitutes a
                   more severe sentence, then, because Cassinelli pleaded guilty pursuant to
                   Alford and maintained his innocence, the district court would have abused
                   its discretion by considering Cassinelli's lack of remorse in making its
                   determination that Cassinelli was not otherwise a good candidate for
                   assignment to an alcohol treatment program. See Brown v. State, 113
                   Nev. 275, 291, 934 P.2d 234, 245 (1997) ("The district court violated [the
                   defendant's] Fifth Amendment rights by considering his 'lack of remorse'
                   when he still had a constitutional right to maintain his innocence and by
                   threatening to impose a harsher sentence if [the defendant] refused to
                   admit his guilt."). Because we find that the district court's reliance on
                   other factors supports the district court's determination that Cassinelli
                   was not likely to be rehabilitated or was not otherwise a good candidate
                   for a program of treatment, we need not address this issue.

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                   defendants who engage in domestic violence are not necessarily good
                   candidates for alcohol treatment programs because other programs are
                   available for these offenders. See NRS 458.300(1)(d); Hearing on A.B. 84
                   Before the Assembly Judiciary Comm., 68th Leg. (Nev., April 19, 1995);
                   Hearing on KB. 84 Before the Senate Judiciary Comm., 68th Leg. (Nev.,
                   May 15, 1995). Thus, although Cassinelli was not charged with or
                   convicted of a crime constituting domestic violence and was technically
                   eligible for an alcohol treatment program, the actions underlying his crime
                   involved acts of domestic violence, and thus, the district court did not
                   abuse its discretion in determining that these facts weighed against
                   assignment to a treatment program designed to rehabilitate alcoholism as
                   Cassinelli was not otherwise a good candidate.
                               In sum, we conclude that the
                                                         • district court properly
                   distinguished between benefiting from an alcohol treatment program and
                   being likely to be rehabilitated through an alcohol treatment program
                   Further, the district court's findings that Cassinelli was not likely to be
                   rehabilitated because he lacked humility and did not take accountability
                   for his alcoholism, and that he was not an otherwise good candidate for an
                   alcohol treatment program because of his propensity for violence and
                   disregard for his children's well-being, are supported by the record.
                   Accordingly, we conclude that the district court did not abuse its discretion
                   in declining to assign Cassinelli to an alcohol treatment program.
                   The plea agreement was not breached and the prosecutor did not engage in
                   misconduct at sentencing
                               We next turn to whether the prosecutor breached the plea
                   agreement at sentencing and whether the prosecutor's actions amounted
                   to misconduct. Cassinelli claims that the prosecutor committed
                   misconduct during sentencing by advocating for a jail sentence for his
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                   conviction on Count II, thereby indirectly recommending a sentence
                   harsher than that agreed upon in the plea agreement. Cassinelli did not
                   object to the prosecutor's argument. We disagree with Cassinelli's claim.
                                  We review unpreserved claims of prosecutorial misconduct for
                   plain error.     Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477
                   (2008). Reversal is required if the State has violated either the terms or
                   the spirit of the plea agreement in exercising its right to argue at
                   sentencing. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216
                   (1986).
                                  The plea agreement in this case provided that the State would
                   not oppose an alcohol treatment program if Cassinelli was eligible for
                   admission into an alcohol treatment program for Count I. The plea
                   agreement allowed the parties to argue their position at sentencing
                   regarding Count II. At sentencing, the prosecutor recommended a
                   program of treatment for Count I and argued for the maximum sentence
                   on Count II, asking the court for 364 days' jail time. The guilty plea
                   agreement expressly allowed for this argument.
                                  Nor did the prosecutor breach the plea agreement with regard
                   to Count I. Although the prosecutor initially made statements regarding
                   the gruesomeness of the crimes involved, the judge interrupted the
                   prosecutor, who proceeded to clarify that his arguments applied to Count
                   II, preventing or dissuading a person from testifying. The prosecutor
                   thereafter limited his argument to the facts relating to that crime.
                   Cassinelli did not object to the prosecutor's argument, and we conclude
                   that he has failed to demonstrate any error, let alone plain error, because
                   the prosecutor's argument did "not explicitly or implicitly undercut the



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                     sentencing recommendation." Sullivan v. State, 115 Nev. 383, 389, 990
                     P.2d 1258, 1262 (1999); see also Valdez, 124 Nev. at 1190, 196 P.3d at 477.
                                 Accordingly, we conclude that the State did not breach the
                     spirit of the plea agreement and did not commit misconduct in the manner
                     alleged.
                     The district court did not err by refusing Cassinelli an opportunity to cross-
                     examine the victim during her impact statement at sentencing
                                    Cassinelli next claims that the district court erred by
                     preventing him an opportunity to cross-examine the victim after her
                     impact statement at sentencing. Specifically, Cassinelli claims error
                     stemming from the district court's actions in explaining the procedure
                     involved in the sentencing We disagree with Cassinelli's interpretation of
                     the district court's comments, as the record demonstrates that Cassinelli
                     was never expressly prohibited from cross-examining the victim.
                                 We review unobjected-to conduct for plain error.     Valdez, 124
                     Nev. at 1190, 196 P.3d at 477. NRS 176.015(3)(b) allows a victim to
                     present, at sentencing, a statement that Irleasonably expresses any views
                     concerning the crime, the person responsible, the impact of the crime on
                     the victim and the need for restitution." Where a victim impact statement
                     refers only to "the facts of the crime, the impact on the victim, and the
                     need for restitution," a victim testifying as a witness must be sworn in,
                     "but. . . cross-examination and prior notice of the contents of the impact
                     statement normally are not required." Busehauer v. State, 106 Nev. 890,
                     893-94, 804 P.2d 1046, 1048 (1990). Generally, a defendant will already
                     be aware of the information in the statement and will be able to rebut that
                     information.     Id. at 894, 804 P.2d at 1048. However, when an impact
                     statement includes references to specific prior acts of the defendant that
                     fall outside the scope of NRS 176.015(3), "due process requires that the
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                   accuser be under oath, [and have] an opportunity for cross-examination
                   and. . . reasonable notice of the prior acts which the impact statement will
                   contain" must be provided. Id.
                               Here, the victim prepared an impact statement that was
                   attached to the presentence investigation report. This statement was
                   provided to Cassinelli prior to sentencing. At sentencing, after being
                   sworn in, the victim read aloud to the court the same impact statement
                   that was attached to the presentence investigation report. The impact
                   statement was provided to both the court and Cassinelli well in advance of
                   sentencing, and the statement related the facts of the crimes, addressed
                   the impact of those crimes on the victim and her children, and concluded
                   that five years of probation was not enough time to account for Cassinelli's
                   actions.
                               Cassinelli did not assert below, nor does he assert on appeal,
                   that cross-examination of the victim was required because the impact
                   statement included allegations of prior acts that were not related to the
                   instant crimes. And, despite receiving an exact copy of the victim impact
                   statement in advance of sentencing, Cassinelli never objected to the
                   statement's contents. Cassinelli also never requested to cross-examine the
                   victim and did not object to her testimony at sentencing.
                               We conclude, under the circumstances presented, that cross-
                   examination of the victim regarding her impact statement was not
                   required. The statement was limited in accordance with NRS 176.015(3),
                   Cassinelli failed to object to the information in the statement, and
                   Cassinelli never argued that the victim's statements went beyond the
                   crimes involved in this case. We also note that Cassinelli has not shown



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                   any prejudice arising from an inability to cross-examine the victim. 8
                   Therefore, the district court did not err.°
                   The sentence was illegal
                                Finally, we turn to the question of whether Cassinelli's
                   sentence was illegal. Here, the district court sentenced Cassinelli to serve
                   a prison term of 14 48 months on Count I. On Count II, the gross
                   misdemeanor, the district court sentenced Cassinelli to 364 days of jail,
                   and then the court suspended that sentence and placed Cassinelli on
                   probation for three years. Because the district court ordered the sentence
                   for Count II to run consecutive to Count I, Cassinelli's suspended jail


                         8 Cassinelliimplies, had he been able to cross-examine the victim, he
                   could have undermined the credibility of her statements. However, we
                   note that during sentencing, Cassinelli argued to the district court that
                   the victim only asserted allegations of abuse after she had discovered
                   Cassinelli was involved with another woman, and Cassinelli presented
                   witness testimony that the victim had threatened to "bury [Cassinelli] and
                   take everything he's ever had in his life." Cassinelli was, therefore, able to
                   attack the victim's credibility. Cassinelli has not shown why, under these
                   facts, cross-examination would have yielded a different sentence.

                         9To   the extent Cassinelli claims that the district court abused its
                   discretion by denying his motion to continue the sentencing hearing, we
                   reject this claim. Initially, we note that Cassinelli made no formal motion
                   to continue the sentencing. Moreover, to the extent he informally asked
                   for a continuance, the request did not arise in the context of obtaining the
                   transcripts to cross-examine the victim. Further, Cassinelli was given
                   reasonable notice of the contents of the impact statement, and he failed to
                   demonstrate that he did not have an opportunity to obtain the transcripts
                   prior to the sentencing hearing. See Higgs v. State, 126 Nev. 1, 9, 222 P.3d
                   648, 653 (2010) (stating that a court's decision on a motion for a
                   continuance is reviewed for an abuse of discretion); see also Buschauer,
                   106 Nev. at 894, 804 P.2d at 1048 (indicating that a continuance may be
                   necessary if the impact statement "presents significant facts not
                   previously raised").

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                   sentence with probation could not occur until after his release from prison
                   on Count I.
                                 Cassinelli argues that his sentence is illegal pursuant to NRS
                   176A.500(1) because the probationary period exceeds the three-year time
                   period prescribed by the statute for probation on a gross misdemeanor.
                   The State concedes error, and we agree.
                                 NRS 176A.500(1), governing probation and suspension of
                   sentences, provides, "[t]he period of probation or suspension of
                   sentence . . . including any extensions thereof, must not be more than: (a)
                   Three years for a: (1) Gross misdemeanor." Here, the district court
                   sentenced Cassinelli to 14-48 months (or maximum of four years) on Count
                   I. Because Cassinelli's maximum prison sentence is four years on Count I,
                   and the district court sentenced Count II consecutive to Count I, Cassinelli
                   may not be able to begin probation until after he has served four years in
                   prison. This clearly exceeds the three-year limit for a probationary period
                   imposed by NRS 176A.500(1)(a) on a gross misdemeanor.
                                 The Nevada Supreme Court addressed a similar situation in
                   Wicker v. State, 111 Nev. 43, 888 P.2d 918 (1995). There, Wicker was
                   convicted of two counts of robbery, rape, and three counts of infamous
                   crime against nature.     Id. at 44, 888 P.2d at 918. The district court
                   sentenced Wicker to 15 years in prison for robbery and to a consecutive life
                   sentence for rape, as well as to another 15-year term for a second robbery
                   count and three consecutive life sentences for three counts of infamous
                   crime against nature. Id. at 44-45, 888 P.2d at 918. The district court
                   suspended the last four sentences and placed Wicker on a five-year
                   probationary period running after parole from prison on the first two
                   sentences. Id. at 45, 888 P.2d at 918. Years later, after serving his prison

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                   sentence and while on probation, Wicker violated the terms of his
                   probation. Appearing before a different district court judge at his
                   probation revocation hearing, Wicker contested the legality of his original
                   sentence. Id. at 45, 888 P.2d at 919. That district court held that Wicker's
                   sentence was illegal pursuant to NRS 176A.500(1). The district court then
                   removed the period of probation and amended Wicker's judgment of
                   conviction and sentence. On appeal, the Nevada Supreme Court affirmed.
                   Id.
                                The court held that former NRS 176.215(1), now codified as
                   NRS 176A.500, prohibited a period of probation or suspension of felony
                   sentences from exceeding five years.      Wicker, 111 Nev. at 46, 888 P.2d at
                   919. The court further reasoned that the statute's limitation period
                   prevented district courts from having perpetual jurisdiction over a
                   defendant:
                                      Moreover, the purpose behind the limitation
                                period in NRS 176.215(1) is to set some sort of
                                time limit on a district court's power over a
                                particular defendant. Under a sentencing scheme
                                such as that imposed. . . the district court could
                                exercise control over a defendant indefinitely,
                                depending upon the number and length of
                                sentences the defendant serves before he is
                                granted probation.
                   Id. at 47, 888 P.2d at 920.
                                Although Wicker's period of probation on the last four
                   sentences did not exceed five years, the period of suspension did. Id. at 45,
                   888 P.2d at 919. The court held that Wicker's original sentence conflicted
                   with the statute and was illegal because "at the time Wicker was sentenced,
                   the last four sentences were inevitably suspended for more than five
                   years." Id. at 47, 888 P.2d at 920 (emphasis added).

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                                Since the court decided Wicker, our Legislature has changed
                   the criminal sentencing structure. Now, NRS 193.130(1) requires district
                   courts to pronounce both a minimum and maximum term for most felony
                   convictions and forbids the courts from imposing a minimum sentence
                   which exceeds 40 percent of the maximum sentence.         Wicker, however, is
                   still good law and stands for the proposition that a sentence is illegal at its
                   inception if the sentence's probationary period inevitably exceeds the
                   statutory maximum." Wicker, 111 Nev. at 47, 888 P.2d at 920; see also
                   Edwards v. State, 112 Nev. 704, 707-08, 918 P.2d 321, 324 (1996) (holding
                   that sentences that exceed the statutory maximum are illegal); State v.
                   Deal, 186 P.3d 735, 736 (Kan. 2008); 21 Am. Jur. 2d Criminal Law § 764
                   (Supp. 2015). Therefore, although the structure of sentencing criminal
                   defendants has changed since Wicker, the court's rationale still extends to
                   Cassinelli's case.
                                We hold that if any portion of a defendant's criminal sentence
                   is illegal at the time of the pronouncement of sentencing,        whether the
                   minimum sentence or the maximum sentence, the entire sentence is
                   illegal. To hold otherwise would force district and appellate courts to
                   engage in speculation regarding whether a facially illegal sentence might
                   become legal at some later time depending on whether or not a defendant

                          "A majority of jurisdictions further hold that illegal sentences are
                   void. See, e.g., State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995)
                   ("[I]llegal sentences are not subject to the usual requirements of error
                   preservation and waiver. An illegal sentence is one not authorized by
                   statute; it is void." (citations omitted)); Summers v. State, 212 S.W.3d 251,
                   256 (Term. 2007) ("A sentence imposed in direct contravention of a statute
                   is void and illegal."); Rodriguez v. State, 939 S.W.2d 211, 222 (Tex. Ct.
                   App. 1997) ("If the punishment is not authorized by law, the order
                   imposing punishment is void.").

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                   is granted parole, and if granted, when that parole may occur in the
                   future. Our holding also prevents district courts from exercising perpetual
                   jurisdiction over a defendant, contrary to the rationale expressed in
                   Wickern
                                  Here, the district court sentenced Cassinelli to a prison term
                   of 14-48 months for Count I. The district court then imposed a consecutive
                   364-day jail sentence for Count II, a gross misdemeanor. The district
                   court suspended the jail sentence on Count II, placing Cassinelli on
                   probation for a term of 36 months (or three years). Because the district
                   court ran Count II consecutive to Count I, Cassinelli may not be placed on
                   probation until after his maximum four-year prison sentence runs on
                   Count I. Because NRS 176A.500(1)(a) limits probation for gross
                   misdemeanors to three years, there is a possibility Cassinelli would begin
                   probation after serving his maximum four-year sentence in prison." 2
                   Therefore the district court violated the statute's limits regarding the term
                   of probation periods, and thus, Cassinelli's sentence on Count II is illegal.




                         1 "For this reason, we would caution judges against imposing a
                   consecutive probationary period for one crime after a prison sentence on a
                   different count because the period of suspension of probation may violate
                   the statutory limits.

                           We recognize that, in very limited circumstances, the suspension of
                         ' 2




                   probation may not exceed the statutory limitation on either the minimum
                   or maximum sentence imposed as a defendant may, for a multitude of
                   reasons, actually receive probation within the time limit set by statute.
                   However, we do not consider those possibilities when determining whether
                   the sentence, as pronounced, violates the statute because to do so would be
                   speculative, rendering any analysis under Wicker difficult if not
                   impossible, and would run contrary to Nevada law and policy.

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                                 Accordingly, we remand this case for the district court to
                   impose a sentence on Count II that does not violate NRS 176A.500(1)(a).
                   We vacate Cassinelli's sentence on Count II and remand this case for
                   resentencing on Count II only. 13
                                                  CONCLUSION
                                 Cassinelli has failed to show reversible error on the majority
                   of his claims. However, we agree with the parties that Cassinelli's gross
                   misdemeanor sentence for Count II, dissuading a person from testifying, is
                   illegal under NRS 176A.500(1). We therefore vacate that sentence and
                   remand this case for proceedings consistent with this opinion.




                                                                                     J.
                                                         Silver


                   I concur:

                                    Sb



                                                , C.J.
                   Gibbons




                         13 Inso doing, we caution the district court to be mindful of the
                   Nevada Supreme Court's language in Miranda v. State, wherein the court
                   held that to comply with the Double Jeopardy Clause of the Nevada
                   Constitution, "a district court may correct an illegal sentence by increasing
                   its severity only when necessary to bring the sentence into compliance
                   with the pertinent statute, and a correction that increases sentence
                   severity is 'necessary' only when there is no other, less severe means of
                   correcting the illegality." 114 Nev. 385, 387, 956 P.2d 1377, 1378 (1998).

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                   TAO, J., concurring:

                               Two aspects of the majority opinion warrant further
                   explanation. First, the district court concluded (in its "Order Adjudicating
                   Motion for Election of Treatment," filed June 20, 2014), that, while
                   Cassinelli might have been an alcoholic, he was "not likely to be
                   rehabilitated through treatment" under NRS 458.300 because his
                   underlying problem was not alcoholism but rather a propensity for
                   violence. Among other things, the district court found the following:
                               While alcohol played a role in the crimes
                               committed by Defendant, more significant is the
                               propensity of the Defendant to commit acts of
                               domestic violence, acts of sexual perversion on an
                               unwilling partner, violent acts with the use of
                               firearms and little regard for his own children
                               witnessing such acts. Such behavior is not likely to
                               be corrected by alcohol rehabilitation.
                               I am inclined to agree with the sentencing court's
                   characterization of Cassinelli's personality based upon the sentencing
                   transcript and the abhorrent acts Cassinelli committed against the mother
                   of his children. But I am not sure that the district court's analysis
                   represents a precisely correct application of NRS 458.320. NRS 458.320
                   permits a sentencing court to deny participation in a treatment program if
                   the court finds that the defendant is not likely to be "rehabilitated"
                   through the program. But the way I read the plain text of NRS 458.320,
                   "rehabilitation" refers to rehabilitation from alcoholism, not rehabilitation
                   from crime, because the treatment program established by NRS 458.300 is
                   one for the "treatment for the abuse of alcohol or drugs," not treatment for
                   general criminal behavior or violent tendencies.
                               In this case, this distinction makes no difference to the
                   outcome of this appeal because the statute gives the sentencing court wide
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                      latitude to deny participation to anyone who "is otherwise not a good
                      candidate" for the program.     NIBS 458.320(2). Thus, the district court
                      properly concluded that, even if a defendant is a good candidate for
                      rehabilitation from alcoholism, the criminal sentence imposed upon him
                      need not include participation in a treatment program if his alcoholism
                      was not the driving force behind his criminal behavior.' Consequently, the
                      district court did not err in its ultimate conclusion. As a matter of better
                      practice, however, had the district court found that Cassinelli could
                      potentially be rehabilitated from his alcoholism but that he was not
                      otherwise a good candidate for treatment because alcohol was not the
                      driving force behind the violent crime he committed, its findings would
                      have more closely mirrored the words of the statute and the intention of
                      the Legislature.
                                  My second concern arises from the district court's conclusion
                      that Cassinelli failed to "demonstrate any humility necessary for
                      treatment." The problem here is that Cassinelli pleaded guilty by way of
                      North Carolina v. Alford, 400 U.S. 25 (1970). The defining characteristic
                      of an Alford plea is that, by entering one, a defendant waives his right to
                      proceed to trial and contest the charges against him, but exercises his
                      Fifth Amendment privilege not to incriminate himself by admitting factual
                      guilt.   Id. at 35-39. Both the United States Supreme Court and the
                      Nevada Supreme Court have made clear that a district court cannot

                            'In fact, the "otherwise not a good candidate" language was
                      specifically inserted into NRS 458.320(2), see A.B. 413, 64th Leg. (Nev.
                      1987), in response to concerns that, as previously written without this
                      language, the statute could be read to require sentencing judges to allow
                      participation in alcohol treatment so long as the defendant was an
                      alcoholic even if alcohol had nothing to do with the crime.

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                   impose a "harsher sentence" based upon a defendant's refusal to either
                   admit guilt or show remorse when the defendant's plea was by way of
                   Alford because doing so violates the defendant's Fifth Amendment
                   privilege against self-incrimination and constitutes an abuse of the
                   sentencing court's discretion. See Brown v. State, 113 Nev. 275, 291, 934
                   P.2d 235, 245 (1997); see also Mitchell v. United States, 526 U.S. 314, 327-
                   28 (1999) (sentencing court cannot draw any adverse inference from a
                   defendant's choice to stand silently at sentencing).
                               Yet, as the majority correctly notes, within the field of
                   psychology generally, and within the field of substance abuse treatment
                   specifically, expressions of humility and overt admissions of guilt are
                   frequently considered prerequisites for admission into treatment
                   programs. Thus, in the absence of a more detailed explanation than that
                   provided in footnote 7 of the majority opinion, the district court's findings
                   could potentially be construed by anyone not familiar with this area of the
                   law to have improperly denied Cassinelli access to such a program because
                   he chose to plead guilty by way of Alford, thereby receiving a more severe
                   punishment based upon the exercise of a constitutional right. Therefore, I
                   write to supply additional clarification as well as future guidance to
                   district courts tasked with making sentencing determinations involving
                   NRS 458.300.
                               As I noted, a court cannot impose a harsher or more severe
                   sentence upon a defendant for exercising a valid constitutional right,
                   including rights specifically reserved when the defendant pleads guilty by
                   way of Alford. See Thomas v. State, 99 Nev. 757, 758, 670 P.2d 111, 112
                   (1983) (holding that imposing harsher sentence after trial on defendant
                   who refused to admit guilt was an abuse of discretion because defendant

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                   retained Fifth Amendment right to refuse to incriminate himself while
                   appeal was pending and new trial was still a possibility). Whether the
                   district court did that in this case depends upon whether refusing to
                   permit Cassinelli to participate in a treatment program and sending him
                   to prison instead constitutes a more severe sentence, or merely a refusal to
                   grant leniency to which Cassinelli was not otherwise entitled.
                               The Nevada Supreme Court has held that the denial of
                   probation based upon a defendant's exercise of his right to refuse to admit
                   guilt was not an abuse of discretion because qpirobation is a benefit
                   provided by the Legislature in certain sex offense cases only if defendants
                   demonstrate they are not a menace to the health, safety, or morals of
                   others." Dzul v. State, 118 Nev. 681, 692, 56 P.3d 875, 882 (2002). In
                   reaching that conclusion, the court distinguished between, on the one
                   hand, a mere denial of benefits or refusal to grant an act of leniency, and
                   on the other hand, the imposition of a penalty such as a longer sentence of
                   years. Citing a series of federal cases, the court noted that while a
                   sentencing court is constitutionally entitled to refuse to grant leniency in
                   response to a defendant's exercise of a constitutional right, it could not
                   impose a harsher penalty for doing so. Id. at 692-93, 56 P.3d at 882-83.
                   Because criminal defendants are not entitled to receive probation, but may
                   be granted it as an act of leniency by the sentencing court, no
                   constitutional error occurs if a court decides not to grant probation to a
                   defendant who refuses to admit guilt.     Id. at 693, 56 P.3d at 883 ("[W]e
                   conclude that probation is a form of leniency.").
                               In this case, whether the district court erred in refusing to
                   allow Cassinelli to participate in an alcohol treatment program due to his
                   lack of remorse depends upon whether such refusal represented

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                   imposition of a penalty or a mere denial of leniency or a benefit. This, in
                   turn, depends upon whether the consequences for a constitutional
                   invocation operate to deprive a defendant of something to which he is
                   entitled or rather to simply refuse to give him something to which he is
                   not otherwise independently entitled. Two contrasting cases are
                   illustrative. In Minnesota v. Murphy, 465 U.S. 420, 422-23 (1984), the
                   Supreme Court held that a probation officer could not revoke a defendant
                   from probation for refusing to confess to a crime where the defendant was
                   statutorily entitled to remain on probation absent proof of a violation. In
                   Doe v. Sauer, 186 F.3d 903, 906 (8th Cir. 1999), another court held that an
                   inmate's privilege against self-incrimination was not violated when his
                   parole was denied because he refused to participate in a rehabilitation
                   program that required him to admit guilt because parole is a benefit that
                   involves relief from a penalty that has already been imposed.
                               In   Dzul,   the Nevada Supreme Court adopted this
                   benefit/penalty analysis. 118 Nev. at 692, 56 P.3d at 882 ("We find the
                   benefit/penalty analysis persuasive."). Applying this test to the facts of
                   the instant case, it appears clear that participation in an alcohol
                   treatment program under NRS 458.300 is a benefit, and refusal to allow
                   participation is not a penalty. The reasons for this are fairly obvious from
                   the plain text of the statute. As an initial observation, under NRS
                   458.350, the State is not even required to establish any facility for
                   treatment. NRS 458.350 ("The provisions of NRS 458.290 to 458.350,
                   inclusive, do not require the State or any of its political subdivisions to
                   establish or finance any facility for the treatment of abuse of alcohol or
                   drugs."). It should be self-evident that if the State is not required to
                   establish a treatment program, a defendant is not entitled to enroll in one.

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                   Furthermore, even if one has been established, the statute provides that
                   even if the sentencing court deems a defendant worthy of treatment, he
                   must still be separately accepted by the facility. NRS 458.320(6) ("No
                   person may be placed under the supervision of a facility under this section
                   unless the facility accepts the person for treatment."). Thus, no right to
                   participate in a program is guaranteed because participation can be
                   denied by people or entities other than the sentencing judge.
                   Consequently, it appears clear to me that refusing to permit a defendant
                   to participate in such a program constitutes the denial of a benefit to
                   which he is not independently entitled, rather than the imposition of a
                   penalty. Accordingly, I agree with the majority that the district court did
                   not abuse its discretion by refusing to allow Cassinelli to enter such a
                   program in part because he would not confess his guilt or display humility
                   in this case.



                                                      Tao




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