                                                    132 Nev., Advance Opinion      31
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                LINDSIE NEWMAN,                                       No. 67756
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.

                LINDSIE NEWMAN,                                       No. 67763
                Appellant,
                vs.                                                               FILED
                THE STATE OF NEVADA,
                Respondent.                                                         APR 2 8 2016
                                                                             CL
                                                                                  Tot   ILK. .LINDEMAN
                                                                                                    OU
                                                                            BY
                                                                                        DEPLITMLERK
                             Consolidated appeals from a district court judgment reVOking
                probation and from a judgment of conviction pursuant to a guilty plea to
                possession of a controlled substance. First Judicial District Court, Carson
                City; James Todd Russell, Judge.
                            Dismissed (Docket No. 67756) and affirmed (Docket No.
                67763).



                Karin K. Kreizenbeck, State Public Defender, and Sally S. deSoto, Chief
                Appellate Deputy Defender, Carson City,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Jason Woodbury,
                District Attorney, and Iris F. Yowell, Deputy District Attorney, Carson
                City,
                for Respondent.




SUPREME COURT
        OF
     NEVADA


(0) 1947A
                    BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.


                                                     OPINION
                    By the Court, CHERRY, J.:
                                These are consolidated appeals from a district court judgment
                    revoking probation following a guilty plea to conspiracy to commit grand
                    larceny and a judgment of conviction pursuant to a guilty plea to
                    possession of a controlled substance. We focus upon whether the district
                    court plainly erred when it considered the status of appellant, Lindsie
                    Newman, as a pregnant drug addict when it sentenced her to a term of
                    imprisonment for possession of a controlled substance. Newman claims
                    the district court erroneously based its sentence on her status as a
                    pregnant drug addict instead of on the crime she committed. Ordinarily,
                    the district court should not consider a defendant's status when
                    determining a sentence, but we conclude that the district court did not
                    plainly err by considering Newman's status because she raised the issue of
                    her status as a pregnant addict at the sentencing hearing. 1
                                     FACTS AND PROCEDURAL HISTORY
                                Newman was convicted of conspiracy to commit grand larceny,
                    a gross misdemeanor, after she entered a guilty plea. The district court
                    sentenced her to nine months in jail, suspended the sentence, and placed




                           'Although Newman appealed from the judgment of revocation for
                    her conspiracy to commit grand larceny conviction, she has not presented
                    any cogent arguments pertaining to that order for our consideration.
                    Additionally, she has been discharged from the nine-month sentence, so
                    the probation revocation appeal is moot. We accordingly dismiss the
                    district court's order from which Newman appeals in Docket No. 67756.


SUPREME COURT
       OF
     NEVADA
                                                         2
(0) 1947). cigao>
                Newman on probation for no more than two years with specific conditions.
                Less than five months later, Newman was charged with and pleaded
                guilty to possession of a controlled substance, a category E felony. Instead
                of imposing a sentence in that case, the court suspended the proceedings
                pursuant to NRS 453.3363 and placed Newman on probation for no more
                than three years with special conditions, including completion of the
                Western Regional Drug Court Program.
                            Newman had difficulty complying with the conditions of her
                probation. At one point, the drug court terminated her for noncompliance
                but then reinstated her and required her to complete a program at the
                City of Refuge 2 because she was pregnant. Newman, however, left the
                City of Refuge program before her baby was born. She was arrested for
                probation violations, and the Division of Parole and Probation submitted
                violation reports to the district court in both criminal cases. The reports
                alleged that Newman violated the special conditions of her probation by,
                among other things, possessing prescription pills for which she did not
                have a prescription, taking morphine pills, testing positive for
                methamphetamines, being discharged from drug court, and being difficult
                to supervise. Parole and Probation recommended the district court revoke



                      2The City of Refuge is a program designed to assist pregnant women
                who have unplanned pregnancies and wish to deliver, instead of abort, the
                baby but cannot do so without additional support. See Welcome to City of
                Refuge, City of Refuge, http://refugenevada.com/index2.html (last visited
                Apr. 5, 2016). The program gives these women a safe and nurturing
                environment during the gestational period. Id. The participants must
                pursue a high school diploma and/or perform undemanding work. See
                Mission & Ministry,         City of Refuge,        http://refugeneyada.com/
                Mission&MInistry.html (last visited Apr. 5, 2016).

SUPREME COURT
        OF
     NEVADA
                                                     3
(0) 1947A
                  Newman's probation and sentence her to a term of 12 to 32 months in the
                  controlled substance case.
                              The district court conducted a hearing on the violation reports.
                  At the hearing, Newman admitted to the violations but denied using
                  methamphetamines. Newman's counsel then informed the court how
                  Newman wished to proceed: "Ms. Newman. . . ask's] for revocation in
                  both of these cases today. She's appreciated the opportunities that the
                  Court has afforded her by allowing her diversion and the drug court
                  program as well as the City of Refuge so her baby will be born safe ay]."
                  Counsel also requested that the district court run her sentences
                  concurrently.
                              In deciding whether to impose the sentences concurrently or
                  consecutively, the district court explained its "main concern" was that
                  Newman "stays in custody long enough for that child to be born." Those
                  concerns were the focus of the following colloquy between the court and
                  defense counsel:
                                    THE COURT: Ms. Merideth, do you
                             understand my concern? I just want to make sure
                             above all that she—and I'll sentence her
                             accordingly—make sure she stays in custody until
                             that child is born. Obviously, you couldn't trust
                             her at the City of Refuge. You can't trust her
                             anywhere. I don't want that child to be put at any
                             risk in respect to this matter. . . .
                                   MS. MERIDETH: Well, I understand that,
                             Your Honor, and I appreciate the Court's concern.
                             I don't see that anyone wouldn't share the same
                             concerns.


                                  Well, I would rather see her—and I think
                             she would agree—do her time, the remaining time

SUPREME COURT
        OF
     NEVADA
                                                      4
(0) 1947A    eD
                                in the actual prison system. There's more
                                resources available to her. There's doctors. She's
                                having problems getting [in to] seeing doctors in
                                the jail
                After determining that the amount of credit applied to the 9-month
                sentence (265 days) would cause that sentence to expire before Newman
                gave birth, the court determined that it would have to impose a
                consecutive sentence in the controlled substance case to address its
                concerns. Ultimately, the district court revoked Newman's probation in
                the conspiracy to commit grand larceny case and executed the original
                sentence of nine months with credit for time served. The district court
                then sentenced Newman to 12 to 32 months in the Nevada Department of
                Corrections in the possession of a controlled substance case. The court
                ordered the sentences to run consecutively. At the conclusion of the
                hearing, the court informed Newman, "I'm doing this more than anything
                to protect that unborn child. I don't want to see you out doing anything
                until that child is born." Newman did not object below to either the
                sentence the court ordered or to the court's consideration of her status as a
                pregnant drug addict.
                                                 DISCUSSION
                Whether this case is moot and, if so, whether this court should nonetheless
                entertain the appeal
                                The primary issue before this court is whether the district
                court plainly erred when it considered Newman's status as a pregnant
                drug addict in deciding to impose a consecutive sentence in the controlled
                substance case. Newman argues that this issue became moot once her
                child was born but that this court should address the issue because of its
                significance.


SUPREME COURT
        OF
     NEVADA
                                                        5
(0) I947A
                             Generally, we will not decide moot cases.      Nat'l Collegiate
                Athletic Ass'n v. Univ. of Nev., Reno,    97 Nev. 56, 58, 624 P.2d 10, 11
                (1981). A case is moot if it "seeks to determine an abstract question which
                 does not rest upon existing facts or rights." Id. Mootness is a question of
                justiciability. Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572,
                574 (2010). The dispute must continue through all of the controversy's
                phases. Id. A case may become moot due to later occurrences despite the
                existence of a "live controversy" at the beginning of the litigation. Id.
                            The issue that Newman raises is not moot. Newman's
                sentence has likely expired in her case for conspiracy to commit grand
                larceny, and we presume that she is no longer pregnant. However, in her
                case for possession of a controlled substance, the district court sentenced
                her to 12 to 32 months consecutive to her sentence in the conspiracy to
                commit grand larceny case, and the district court did not give Newman
                any credit for time served. Newman received parole on June 10, 2015, so
                we presume that she is currently subject to the district court's sentencing
                order and could be required to return to prison if she violates the terms of
                her parole. Accordingly, we will reach the merits of Newman's appeal.
                Whether the district court plainly erred in sentencing Newman
                           Newman concedes that she did not object when the district
                court considered her status as a pregnant drug addict in determining her
                sentence or when it ordered consecutive sentences. However, she argues
                that the court's error was plain and impacted her due process right to be
                sentenced for her crimes, not her status as a pregnant drug addict. She
                contends the court sentenced her as it did solely to keep her incarcerated
                until her child was born. Newman does not contend that consecutive
                sentences violated Nevada law; she contends that the court

SUPREME COURT
         OF
      NEVADA
                                                     6
(0) 1.947A
                inappropriately considered her status as a pregnant drug addict when it
                decided whether to order consecutive or concurrent sentences.
                             When a party fails to object to a trial court error, appellate
                review is precluded unless the error was plain.     Anderson v. State, 121
                Nev. 511, 516, 118 P.3d 184, 187 (2005). In determining whether an error
                was plain, we examine the following: "whether there was error," "whether
                the error was plain or clear," and "whether the error, affected the
                defendant's substantial rights." Id. (internal citations and quotation
                marks omitted). The defendant must show "actual prejudice or a
                miscarriage ofjustice." Id.
                            Nevada's sentencing courts have "discretion . . . to consider a
                wide, largely unlimited variety of information to insure that the
                punishment fits not only the crime, but also the individual defendant"
                Martinez v. State, 114 Nev. 735, 737-38,961 P.2d 143, 145 (1998). But our
                precedents have set forth circumstances in which we will reverse a
                sentence that is within the statutorily prescribed limits- (1) when the
                record "demonstrate [s] prejudice resulting from consideration of
                information or accusations founded on facts supported only by impalpable
                or highly suspect evidence," Silks v. State, 92 Nev. 91, 93-94, 545 P.2d
                1159, 1161 (1976); (2) when "the statute fixing punishment is
                unconstitutional," Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284
                (1996) (internal citations and quotation marks omitted); (3) when "the
                sentence is so unreasonably disproportionate to the offense as to shock the
                conscience," id.; and (4) when the court "consider[s] a defendant's
                nationality or ethnicity in its sentence determination," Martinez, 114 Nev.
                at 738, 961 P.2d at 145.



SUPREME COURT
        OF
     NEVADA
                                                     7
(0) 1947A
                            However, we have previously upheld a sentence where the
                district court considered a defendant's immigration status. See Ruvalcaba
                v. State, 122 Nev. 961, 963, 143 P.3d 468, 469 (2006). In Ruvalcaba, the
                defendant objected to the Presentence Investigation Report (PSI) because
                it referenced "his immigration status and illegal re-entry into the United
                States following deportation." At the sentencing hearing, the judge
                sentenced the defendant to a term of imprisonment instead of ordering
                probation and said that the sentence was not a result of the defendant's
                status as a Mexican national. Id. "Rather, the judge expressed concern
                that Ruvalcaba would be unable to comply with any probationary sentence
                because he would likely be deported upon his release from custody."      Id.
                In affirming the sentence, we stressed that the lower court "did not
                sentence Ruvalcaba more harshly based on ethnicity or nationality" or
                because of "any animus towards illegal aliens."    Id. at 964, 143 P.3d at
                470. We noted that the lower court "denied Ruvalcaba's request for
                probation because, as an illegal alien, Ruvalcaba would likely be deported
                if he received probation and would thus ultimately avoid punishment." Id.
                In the end, we concluded that the district court correctly considered the
                defendant's status "to the limited extent indicated."   Id. at 965, 143 P.3d
                at 471.
                            The record here does not reflect that the district court plainly
                erred when it considered Newman's status as a pregnant addict in
                deciding to impose a consecutive sentence. Aside from being a pregnant
                addict, the court sentenced Newman as it did because she committed two
                crimes and had numerous probation violations. The district court also
                wanted to assist Newman in safely delivering her baby by giving her
                access to better medical resources in prison than she would have received

SUPREME COURT
        OF
     NEVADA
                                                     8
(01 1947A
                 in the jail system—a goal Newman apparently shared at the time of
                 sentencing. The court also noted that if it did not order Newman to serve
                 consecutive sentences, she would not receive any additional punishment
                 for her new crimes because of the credit she would receive toward her
                 sentence for conspiracy to commit grand larceny. Accordingly, like in
                 Ruvalcaba, we conclude the district court properly considered Newman's
                 status for the limited purpose of sentencing her in the most appropriate
                 manner.
                             Newman additionally argues that the U.S. Supreme Court, in
                 Robinson v. California, 370 U.S. 660, 662, 667 (1962), held that drug
                 addiction is a status not an act and that a state violates the constitutional
                 protection against cruel and unusual punishment by incarcerating a               •




                 person for his or her addiction to narcotics. Newman's reliance upon
                 Robinson is misplaced because the holding in Robinson does not prohibit a
                 district court from considering a defendant's status as a drug addict in
                 fashioning a sentence. See id.     The Robinson Court held that the lower
                 court violated the defendant's Fourteenth Amendment rights by
                 imprisoning him because the law criminalized drug addiction even when a
                 person "has never touched any narcotic drug within the State or been
                 guilty of any irregular behavior there." Id. In contrast, the district court
                 here did not imprison Newman because being a pregnant drug addict
                 violates some Nevada law; the court imprisoned her because she violated
                 the terms of her probation in one case and was convicted in another case.
                 Although the court clearly considered Newman's status as a pregnant
                 addict when it sentenced her, Newman was not subject to the court's
                 jurisdiction because of her status as a pregnant addict. Instead, she was
                 subject to the district court's jurisdiction because she violated the terms of

SUPREME COURT
        OF
     NEVADA
                                                       9
(0) 1947A    e
                her probation in a gross misdemeanor case and was convicted of a
                separate category E felony.
                            Newman also relies upon the case of State v. Ikerd, 850 A.2d
                516, 518 (N.J. Super. Ct. App. Div. 2004), for the proposition that a trial
                court abuses its discretion when it sentences "a pregnant, drug-addicted
                woman who has violated the conditions of her probation ... to prison for
                the avowed purpose of safeguarding the health of her fetus." However,
                Ikerd, besides not being binding upon this court, is distinguishable. Ikerd
                was convicted for acts of welfare fraud, sentenced to probation, and
                required, among other things, to complete a drug treatment program.      Id.
                After she violated the terms of her probation, the court revoked probation
                and sentenced Ikerd to prison, "[n] ot because we want to punish her, but
                because we want to save the baby."        Id. at 519. The trial court even
                explained that it would consider releasing Ikerd from custody when she
                delivered her baby or if she lost her baby. Id. at 520. The appellate court
                reversed the lower court's decision because "the extent of the punishment
                imposed upon Ikerd resulted solely from her status as a pregnant addict.
                It bore no relationship to the offense that she initially committed, was
                excessively punitive, and accomplished no legitimate penal aim." Id. at
                521 (emphasis added).
                            Unlike in Ikerd, Newman's punishment is related to her
                crimes. She was originally convicted of conspiracy to commit grand
                larceny and then (after receiving probation) picked up new charges,
                violated the terms of probation, was kicked out of drug court, quit the City
                of Refuge program, violated several other terms of probation, and picked
                up more new charges. The district court did not make any provisions for
                Newman's release following the birth of her baby, and the court stated

SUPREME COURT
        OF
     NEVADA
                                                     10
(0) 1947A
                   that keeping Newman off of the street was its main concern, not its sole
                   concern. This at least implies that Newman's status as a pregnant addict,
                   although the most significant, was not the only factor the court considered.
                                Additionally, we must review for plain error due to Newman's
                   failure to object in the lower court. This places a burden on Newman that
                   she cannot meet. The record before us shows Newman's claim that the
                   district court should not have considered her status as a pregnant drug
                   addict is disingenuous. At the beginning of the hearing in district court,
                   Newman's counsel initiated the discussion of Newman's status as a
                   pregnant addict and the importance of safeguarding her unborn child.
                   Then, after further discussion about running the sentences for the two
                   convictions consecutively or concurrently, Newman's counsel further
                   explained that Newman should be incarcerated to protect her unborn
                   child. Indeed, a comprehensive reading of the transcript of that hearing
                   convinces us that Newman wanted the district court to consider her status
                   as a pregnant addict when it sentenced her. Defense counsel, the
                   prosecutor, and the district court actually worked together to fashion a
                   sentence to accomplish Newman's goal of being imprisoned when her child
                   was born to prevent Newman from further drug use and provide her with
                   access to better medical resources than she would have had if she were in
                   jail or released from custody.
                               Our decision is based upon the unique facts of this case.
                   Nothing in our opinion today should be construed to indicate that courts
                   should consider a defendant's status as a pregnant addict when imposing
                   a sentence. But because Newman neglected to preserve this issue for
                   appellate review and because Newman both participated in and initiated



SUPREME COURT
        OF
     NEVADA
                                                        11
(0) 1947A    ce.
                      the lower court's consideration of her status as a pregnant addict, we
                      must affirm the lower court's decision.
                                   For the reasons set forth above, we conclude that the district
                      court did not err when it considered Newman's status as a pregnant addict
                      at the time of sentencing. Therefore, we dismiss Newman's appeal in
                      Docket No. 67756 because her sentence has expired and affirm the district
                      court's judgment of conviction in Docket No. 67763.




                                                                   ic\CAk               J.
                                                          Cherry


                      We concur:




                      Gibbons




SUPREME COURT
        OF
     NEVADA
                                                            12
(0) 1947A    )4D)ra
