                                                     130 Nev., Advance Opinion 22-
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  JOHN COLEMAN,                                         No. 60715
                  Appellant,
                  vs.                                                           FILED
                  THE STATE OF NEVADA,
                  Respondent.                                                    MAR 2 7 2014
                                                                                 A IE K. LINDEMAN
                                                                           CLE     F SUPRE  -tA €1431
                                                                           BY
                                                                                                 ERK


                              Appeal from a district court order denying a post-conviction
                  petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
                  County; Linda Marie Bell, Judge.
                             Affirmed.

                  Turco & Draskovich, LLP, and Robert M. Draskovich Jr. and Gary A.
                  Modafferi, Las Vegas,
                  for Appellant.

                  Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                  Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
                  Attorney, Clark County,
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                  OPINION
                  By the Court, SAITTA, J.:
                              Appellant John Coleman was convicted of lewdness with a
                  child under the age of 14 years and was given a suspended prison sentence
                  and placed on probation. When he completed his period of probation, he
                  was subject to a special sentence of lifetime supervision. Several years
SUPREME COURT
      OF
    NEVADA

(0) 1947A 4(M99
                                                                                         4- Dgcpacl
                after commencing lifetime supervision, Coleman filed a post-conviction
                petition for a writ of habeas corpus, asking the district court to release
                him from lifetime supervision or strike the lifetime supervision
                requirement. The district court denied the petition. In this appeal, we
                consider whether a person who is serving a special sentence of lifetime
                supervision may file a post-conviction petition for a writ of habeas corpus
                to challenge his judgment of conviction or sentence. We conclude that he
                cannot. Because lifetime supervision commences only after a person has
                expired a prison term or period of probation or parole, a person who is
                subject only to lifetime supervision is not subject to an unexpired prison
                term that could be imposed upon violation of the conditions of that
                supervision and therefore is no longer under "sentence of death or
                imprisonment" as required by NRS 34.724(1). Thus, a person who is
                subject only to lifetime supervision may not file a post-conviction petition
                for a writ of habeas corpus. We therefore affirm the district court's order
                denying Coleman's post-conviction petition for a writ of habeas corpus.
                                 FACTS AND PROCEDURAL HISTORY
                            Coleman pleaded guilty in 2002 to lewdness with a child under
                the age of 14 years. The district court sentenced him to life in prison with
                the possibility of parole after 10 years, but the court suspended the
                sentence and placed him on probation for a term of 5 years. As required
                by MRS 176.0931, the district court also imposed a special sentence of
                lifetime supervision to begin upon completion of any term of
                imprisonment, probation, or parole.
                            In July 2007, Coleman was discharged from probation and
                began serving his "sentence" or term of lifetime supervision. Consistent
                with the authority granted by MRS 213.1243, the Board of Parole

SUPREME COURT
       OF
    NEVADA

                                                      2
W) 1947A
                Commissioners assigned the conditions of Coleman's lifetime supervision.
                The conditions apparently included restrictions on where Coleman could
                reside, his consumption of intoxicants and controlled substances, his
                possession of weapons and association with certain individuals, his
                conduct in compliance with all laws, out-of-state travel, contact with any
                victims or witnesses, obtaining a post office box, contact with minors, and
                presence in or near certain locations that are frequented by minors.' The
                lifetime supervision agreement also included the conditions required by
                NRS 213.1243(3)-(5) that further restrict the location of Coleman's
                residence and his movements. In January 2012, Coleman filed a post-
                conviction petition for a writ of habeas corpus, seeking release from his
                sentence and conditions of lifetime supervision. The district court denied
                his petition.
                                                DISCUSSION
                                A challenge to the validity of a judgment of conviction or
                sentence may be raised in a post-conviction petition for a writ of habeas
                corpus filed in compliance with the requirements set forth in NRS Chapter
                34. NRS 34.724(1) provides that a person "convicted of a crime and under
                sentence of death or imprisonment" may file a post-conviction petition for
                a writ of habeas corpus to challenge the conviction, the sentence, or the
                computation of time served. Accordingly, a post-conviction petition for a
                writ of habeas corpus cannot be filed by a petitioner who is no longer

                      'Coleman has provided a copy of a lifetime supervision agreement in
                his appendix. Although the document has been redacted such that it is
                unclear whether it is a copy of Coleman's lifetime supervision agreement,
                based on the parties' briefing below and on appeal, it appears that the
                document reflects the conditions that have been imposed on Coleman.


SUPREME COURT
        OF
     NEVADA
                                                       3
(0) 1947A
                under a sentence of death or imprisonment for the conviction at issue. See
                NRS 34.724(1); see also Jackson v. State, 115 Nev. 21, 23, 973 P.2d 241,
                242 (1999) (concluding that a petitioner was not entitled to file a post-
                conviction petition for a writ of habeas corpus when he was no longer
                incarcerated pursuant to the judgment of conviction contested); Nev.
                Const. art. 6, § 6(1) (permitting district courts to issue writ of habeas
                corpus for a person "who has suffered a criminal conviction. .. and has not
                completed the sentence imposed pursuant to the judgment of conviction").
                            Whether a sentence of lifetime supervision, imposed pursuant
                to NRS 176.0931, qualifies as a sentence of imprisonment within the
                meaning of NRS 34.724(1) is a matter of statutory interpretation. When
                interpreting a statutory provision, this court will look first to the plain
                language of a statute and will enforce the statute as written if the
                statute's language is clear and the meaning plain. See Hobbs v. State, 127
                Nev. „ 251 P.3d 177, 179 (2011); see also State v. Catanio, 120 Nev.
                1030, 1033, 102 P.3d 588, 590 (2004) ("We must attribute the plain
                meaning to a statute that is not ambiguous.").
                            NRS 34.724(1) allows a person who is "under a sentence
                of ... imprisonment" to file a post-conviction habeas petition. A sentence
                of imprisonment is one that requires a person to be placed in a prison or
                some other place of confinement. See Black's Law Dictionary 825 (9th ed.
                2009) (defining "imprison"). Obviously, a person who is incarcerated is
                under a sentence of imprisonment. But lifetime supervision clearly is not
                itself a sentence of imprisonment. A person who is on lifetime supervision
                is supervised by parole and probation officers and there are restrictions on
                where the person may reside, but the person is not placed in a prison or
                another place of confinement. See generally NRS 213.1243.

SUPREME COURT
        OF
     NEVADA
                                                      4
(0) 1947A
                            In some circumstances a person who is not in a prison or
                another place of confinement may nonetheless be under a sentence of
                imprisonment. For example, a person who is on probation is under a
                sentence of imprisonment because the person has been sentenced to a
                prison term but the sentence has been suspended. If the probationer
                violates a condition of probation, the suspended sentence of imprisonment
                may be enforced. NRS 176A.630. Similarly, a person who has been
                released from prison on parole is under a sentence of imprisonment
                because he remains subject to an unexpired term of imprisonment. If the
                parolee violates a condition of parole, he may be imprisoned on the
                unexpired sentence. NRS 213.1517(1); NRS 213.1519(1). Although the
                conditions of probation or parole may be similar to conditions of lifetime
                supervision,2 the conditions are not what place a probationer and parolee
                under a sentence of imprisonment. The probationer and parolee remain
                under a sentence of imprisonment because of the suspended or unexpired
                prison term set forth in the judgment of conviction. The same is not true
                for a person who is on lifetime supervision.
                            The special sentence of lifetime supervision "commences after
                any period of probation or any term of imprisonment and any period of

                      2 Compare   NRS 176A.400(1) (providing nonexhaustive list of
                conditions that may be imposed on probationer), NRS 176A.410 (providing
                additional conditions of probation for defendant convicted of a "sexual
                offense"), NRS 176A.420 (providing for random drug testing as condition of
                probation), NRS 176A.430 (providing for restitution as a condition of
                probation), and MRS 213.12175 (providing nonexhaustive list of conditions
                that parole board may impose on parolee), with MRS 213.1243(3)-(5)
                (providing conditions of lifetime supervision that must be included in
                certain circumstances), and supra Facts and Procedural History
                (describing conditions of Coleman's lifetime supervision).


SUPREME COURT
     OF
   NEVADA
                                                      5
(0) 1947A map
                 release on parole." NRS 176.0931(2); see also NRS 213.1243(1). Under the
                 plain language of the statute, lifetime supervision begins only after the
                 person has been discharged from any further obligations of probation or
                 has expired his prison term while incarcerated or on parole. Therefore,
                 unlike a probationer or parolee, a person on lifetime supervision is not
                 subject to a suspended or unexpired sentence of imprisonment set forth in
                 the judgment of conviction that may be enforced upon a violation of the
                 conditions of lifetime supervision. 3 Instead, when a person on lifetime
                 supervision violates a condition of that supervision, the violation is a new,
                 separate and distinct offense, NRS 213.1243(8), and will result in the
                 person being under a sentence of imprisonment only if he is charged with,
                 convicted of, and sentenced for that offense. 4 In that event, the person is
                 under a sentence of imprisonment based on the new judgment of

                       3 NRS  213.1243(2) deems lifetime supervision to be "a form of parole"
                 for limited purposes that do not affect our analysis of the issue presented
                 here.

                       'Currently, a person who violates a condition of lifetime supervision
                 "is guilty of a category B felony and shall be punished by imprisonment in
                 the state prison for a minimum term of not less than 1 year and a
                 maximum term of not more than 6 years." NRS 213.1243(8). A prior
                 version of the statute distinguished between minor and major violations
                 with a minor violation being a misdemeanor and a major violation being a
                 category B felony. NRS 213.1243(3) (2005), amended by 2007 Nev. Stat.,
                 ch. 528, §8, at 3257. A "major violation" was one that posed "a threat to
                 the safety or well-being of others" and involved: a gross misdemeanor, a
                 felony, or a crime involving a minor victim; the use of a deadly weapon,
                 explosive, or firearm; the use or threatened use of force or violence; death
                 or bodily injury; domestic violence; harassment, threats, or stalking; or the
                 forcible or unlawful entry of any structure or vehicle in which another
                 person was present. NRS 213.1243(5) (2005), repealed by 2007 Nev. Stat.,
                 ch. 528, § 8, at 3258.


SUPREME COURT
        OF
     NEVADA
                                                       6
(0) 1947A    e
                conviction, not the lifetime supervision. A person on lifetime supervision
                therefore is not in the same position as a probationer or parolee.
                Accordingly, we conclude that a person who is subject only to lifetime
                supervision is not under a sentence of imprisonment within the meaning
                of NRS 34.724(1) and therefore cannot file a post-conviction petition for a
                writ of habeas corpus to challenge his sentence.
                            Coleman contends that he is left without a remedy if he cannot
                challenge his sentence and conditions of lifetime supervision in a post-
                conviction petition for a writ of habeas corpus. Even assuming this was
                correct, the post-conviction petition for a writ of habeas corpus is a
                creature of statute and we cannot ignore the plain language of NRS
                34.724(1) that restricts its use. The State acknowledges that while
                traditional post-conviction relief is not available, Coleman could still
                pursue injunctive relief pursuant to NRS 33.010. Although we do not
                attempt to catalogue the full panoply of remedies available to challenge
                the conditions of lifetime supervision including the extent to which the
                conditions could be challenged in defense of a charge under NRS
                213.1243(8) for violating a condition of lifetime supervision, we note that
                some challenges to those conditions may be pursued in a civil rights action
                under 42 U.S.C. § 1983. Nevada law also provides a means for Coleman to
                petition to be released from lifetime supervision if he meets certain
                conditions. NRS 176.0931(3). Coleman therefore is not left without a
                remedy.
                            Because Coleman had been discharged from probation and
                therefore was no longer under a sentence of imprisonment when he filed
                his post-conviction petition for a writ of habeas corpus, he was not eligible



SUPREME COURT
        OF
     NEVADA
                                                      7
(0) 1947A
                 for post-conviction habeas relief. Therefore, we affirm the order of the
                 district court denying his petition.




                                                                                 J.
                                                        Saitta



                 We concur:


                                                 C.J.
                                                                 Pickering


                              tie_27
                                   Th.            J.               CLA. 1
                                                                      -




                 Hardesty                                        Parraguirre


                                                  J.                                   J.




SUPREME COURT
        OF
     NEVADA
                                                          8
(0) 1947A    e
