                                                   132 Nev., Advance Opinion 50
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                LERON TERRELL BLANKENSHIP,                                       No. 66118
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.

                FERNANDO BRIONES,                                                No. 66944
                Appellant,
                vs.                                                                   FILED
                THE STATE OF NEVADA,
                Respondent.                                                           JUL 2 1 2016
                                                                                         1E K. LI ND EMAN
                                                                                         ES-UP394E-601J R

                                                                                                 CL

                            Appeals from separate district court judgments of conviction,
                pursuant to guilty pleas, in Docket No. 66118, of destroying or injuring
                real or personal property of another, Second Judicial District Court,
                Washoe County; Patrick Flanagan, Judge; and in Docket No. 66944 of
                burglary, Second Judicial District Court, Washoe County; Elliott A.
                Sattler, Judge.
                            Conviction affirmed, sentence vacated, and remanded with
                instructions (Docket No. 66118); conviction affirmed (Docket No. 66944).


                Jeremy T. Bosler, Public Defender, John Reese Petty, Chief Deputy Public
                Defender, and Evelyn A. Grosenick, Deputy Public Defender, Washoe
                County,
                for Appellants Leron Terrell Blankenship and Fernando Briones.

                Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
                District Attorney, and Terrence P. McCarthy, Chief Deputy District
                Attorney, Washoe County,
                for Respondents.



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                                                               ;;LaleaSit'ini,
                BEFORE THE COURT EN BANC.

                                                 OPINION
                By the Court, HARDESTY, J.:
                            The Division of Parole and Probation (the Division) makes
                sentencing recommendations to district courts in a Presentence
                Investigation Report (PSI). In making its sentencing recommendations,
                the Division uses a Probation Success Probability (PSP) form that scores
                35 factors. The total score places the defendant within a range of
                sentences on a Sentence Recommendation Selection Scale (Sentencing
                Scale) and provides the basis for the sentence recommendation in the PSI.
                In these appeals, we consider whether scoring errors in the defendants'
                PSPs amounted to impalpable or highly suspect evidence that caused
                improper placement of these defendants in the Sentencing Scales and
                adversely influenced the Division's sentencing recommendations in the
                PS's.'
                            In Docket No. 66118, we conclude that the PSP failed to
                properly account for the defendant's mental disabilities in scoring his
                ability to be employed, and, as a result, the PSI recommendation was in
                error. Furthermore, the defendant's sentence was prejudiced because the
                district court did not correct the errors in the PSP prior to sentencing and
                implicitly relied upon them. Thus, we conclude the district court abused
                its sentencing discretion by relying on impalpable and highly suspect
                evidence, and we remand for a new sentencing hearing.



                      'Given the overlapping issues, we consolidate these appeals for
                disposition. See NRAP 3(b).

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                              In Docket No. 66944, we conclude that it was not error for the
                  PSI sentencing recommendation to deviate above the Sentencing Scale
                  calculation because the Division had a rational basis to make an upward
                  adjustment to the recommended sentence. Additionally, the defendant's
                  sentence was not prejudiced by potential errors because the district court
                  expressly disclaimed reliance on the PSI recommendation, reaching an
                  independent sentencing decision.
                                    FACTS AND PROCEDURAL HISTORY
                  Factual and procedural history regarding Docket No. 66118
                              Appellant Leron Blankenship and his wife rented an
                  apartment in Sparks, Nevada, in a complex owned by Douglas Carling.
                  Following a dispute between Blankenship and Carling, Blankenship
                  moved out of the apartment without informing Carling. Carling inspected
                  the apartment the next day and discovered damages to the interior of the
                  apartment totaling approximately $7,600.
                              Carling filed a police report with the Sparks Police
                  Department. Blankenship was arrested and charged with a felony—
                  destroying or injuring real or personal property of another amounting to
                  $5,000 or more pursuant to NRS 193.155 and NRS 206.310.
                              Blankenship pleaded guilty, and the State agreed to concur in
                  the Division's sentencing recommendation. In calculating Blankenship's
                  PSP score to determine his placement on the Sentencing Scale, the
                  Division found Blankenship unemployable with no employment history.
                  As a result, Blankenship's overall PSP score was 60, 6 points lower than a
                  continuously employed individual. If he had received the additional six
                  points, he would have been placed in the probation recommendation range
                  on the Sentencing Scale Instead, a score of 60 placed him in the

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                borderline range between prison and probation, and the Division
                recommended a sentence of 12-32 months in prison in the PSI.
                            At sentencing, Blankenship objected to the PSP conclusion
                that he was unemployable with a nonexistent employment history.
                Blankenship informed the district court that he had been diagnosed with
                bipolar disorder and paranoid schizophrenia and that he has been
                receiving Social Security disability due to these mental health conditions
                since 2003. He argued that the PSP and Sentencing Scale produced
                impalpable or highly suspect evidence by failing to take into account his
                mental disabilities and improperly characterized him as unemployed
                resulting in a recommendation for prison instead of probation.
                            The district court did not resolve Blankenship's objections to
                the PSP or PSI prior to sentencing him. The district court followed the
                PSI, sentencing Blankenship to prison for a term of 12-32 months and
                ordering him to pay $3,150 in restitution.
                Factual and procedural history regarding Docket No. 66944
                            Appellant Fernando Briones served a five-year prison term in
                Susanville, California. Upon being released, he was transported to
                downtown Reno, Nevada, left with $200 and thereafter resumed drug and
                alcohol use. After being in Reno for 26 days, he used a rock to break a car
                window, stole approximately $2 in change, and was later arrested on
                burglary charges. Prior to this arrest, he had been convicted 11 times,
                imprisoned 6 times, had probation granted and revoked 1 time, and had
                each of his 10 parole opportunities revoked.
                            Briones pleaded guilty to the charges, and the State reserved
                the right to argue for an appropriate sentence. The overall PSP score
                placed Briones in a category on the Sentencing Scale that recommended

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                   prison. His raw score was calculated to be 21, which led to a Sentencing
                   Scale calculation of 16-72 months. However, the Division recommended in
                   the PSI that Briones be incarcerated for 48-120 months.
                               At the sentencing hearing, Briones requested probation or a
                   prison term of 12-30 months. Briones objected to the PSI recommendation
                   because he believed the discrepancy between the Sentencing Scale
                   calculation and the PSI recommendation was due to the Division
                   unlawfully considering subjective criteria. Briones' attorney stated that
                   the PSI author had indicated in a prior discussion that "there were no
                   specific guidelines for" the Division to follow when making a
                   recommendation.
                               The district court addressed these objections on the record but
                   found that Briones' extensive criminal history warranted a sentence of 48-
                   120 months in prison. Although the sentence is the same as that
                   recommended in the PSI, the district court expressly noted that it was not
                   bound by the PSI's recommendation and the sentence was "based on [the
                   district court's] independent determination that [48-120 months] is the
                   appropriate sentence."
                                                 DISCUSSION
                               On appeal, Blankenship argues that the Division's PSI
                   recommendation2 relied on calculations within the PSP, which constituted


                         2 The State argues that Blankenship waived his arguments as to the
                   validity of the PSI because he never moved to strike the PSI in district
                   court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
                   983 (1981) ("A point not urged in the trial court, unless it goes to the
                   jurisdiction of that court, is deemed to have been waived and will not be
                   considered on appeal."). However, Blankenship did object to the PSP in
                   district court, and we thus conclude that the issue has been preserved for
                   appeal.

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                   impalpable and highly suspect evidence. As a part of this argument, he
                   contends that the PSP failed to score his mental disabilities and
                   unlawfully penalized him for being unemployed without an employment
                   history. Briones argues that his PSI constituted impalpable or highly
                   suspect evidence because the Division subjectively increased its PSI
                   recommendation beyond the Sentencing Scale calculation. 3
                               To resolve these appeals, we first generally examine the
                   statutory scheme pertaining to sentencing recommendations and look at
                   the forms the Division generates to assist in formulating its sentencing
                   recommendations—the PSP and the Sentencing Scales. We then consider
                   whether the information in the PSPs and PSIs in these appeals amounted
                   to impalpable or highly suspect evidence and whether the district courts
                   abused their discretion in sentencing Blankenship and Briones by relying
                   on the impalpable or highly suspect evidence.
                   The statutory scheme regarding the Division's sentencing recommendations
                               Pursuant to NRS 176.135(1), the Division must "prepare a PSI
                   to be used at sentencing for any defendant who pleads guilty to or is found
                   guilty of a felony." Stockmeier v. State, Bd. of Parole Comm'rs, 127 Nev.
                   243, 248, 255 P.3d 209, 212 (2011). "A PSI contains information about the
                   defendant's prior criminal record, the circumstances affecting the

                          3 Briones also contends that the district court's sentence was
                   arbitrary and capricious because the district court focused on the potential
                   that Briones could qualify as a habitual criminal. While the district court
                   did state that Briones would qualify as a habitual criminal, the district
                   court did not adjudicate Briones a habitual criminal. Instead, the district
                   court was simply commenting on Briones' extensive criminal history. This
                   consideration is clearly within the district court's discretion. Parrish v.
                   State, 116 Nev. 982, 988,12 P.3d 953, 957 (2000) ("[Ilhe district court is
                   afforded wide discretion when sentencing a defendant.").

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                        defendant's behavior and the offense, and the impact of the offense on the
                        victim." Id. at 248, 255 P.3d at 212-13. Additionally, a PSI must contain
                        "[a] recommendation of a minimum term and a maximum term of
                        imprisonment or other term of imprisonment authorized by statute, or a
                        fine, or both." NRS 176.145(1)(g). The PSI may also include "any
                        additional information that [the Division] believes may be helpful in
                        imposing a sentence, in granting probation or in correctional treatment."
                        NRS 176.145(2).
                                    When considering whether to recommend probation or prison,
                        NRS 213.10988(1) obligates the Chief Parole and Probation Officer to
                        adopt "standards to assist him or her in formulating a
                        recommendation. . . . The standards must be based upon objective criteria
                        for determining the person's probability of success on parole or probation."
                        Pursuant to NRS 213.10988(1)'s grant of regulatory authority, the
                        Division adopted NAC 213.590, creating 27 objective factors that should be
                        considered when preparing a PSP.
                                    NRS 213.10988(2) permits the Division Chief to "first consider
                        all factors which are relevant in determining the probability that a
                        convicted person will live and remain at liberty without violating the law."
                        Furthermore, NRS 213.10988(3) requires the Division Chief to "adjust the
                        standards to provide a recommendation of greater punishment for a
                        convicted person who has a history of repetitive criminal conduct or who
                        commits a serious crime."
                        The sentencing forms
                                    PSPs are separated into four broad categories—prior criminal
                        history, present offenses, social history, and community impact. These



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               ita.;
                four categories include a total of 35 independent considerations, 4 which
                are based upon NAC 213.590's 27 objective factors. 5 Notably, none of the
                35 considerations or the 27 factors take into account a defendant's mental
                disabilities. The 35 considerations are independently scored in the PSP,
                using a separate form to guide the Division when assigning points (the
                Scoring Sheet). The points assigned to the 35 considerations are then
                added to arrive at an overall PSP score. Overall scores below 55 result in
                an automatic recommendation of prison, scores ranging between 55 and 64
                are considered borderline, and scores above 64 allow for a recommendation
                of probation. When an overall PSP score warrants a recommendation of
                prison or when the Division decides to recommend prison for a borderline
                candidate, a raw score is computed consisting of the scores from the
                considerations in the prior criminal history and the present offense
                categories. The raw score is translated into a sentencing range using the
                Sentencing Scale. NAC 213.600.


                      4 The  prior criminal history category has ten considerations: felony
                convictions, misdemeanor convictions, pending unrelated cases,
                subsequent criminal history, prior incarcerations, juvenile commitments,
                number of years free of conviction, prior formal supervision, and criminal
                patterns. The present offense category has ten considerations:
                circumstances of arrest, type of offense, psychological or medical impact on
                victim, weapon, controlled substances, sophistication/premeditation, plea
                bargain benefits, financial impact, co-offender, and motive. The social
                history category has seven considerations: age, employment/program,
                financial, employability, family situation, education, and military. The
                community impact category has eight considerations: commitment/ties,
                program participation, honesty/cooperation, attitude/supervision, resource
                availability, substance drug, substance alcohol, and attitude/offense.

                      5 NAC 213.590 and its companion, NAC 213.600, are currently under
                review and may be deleted from the Nevada Administrative Code.

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                             "[Al defendant [has] the right to object to factual [or
                 methodological] errors in [sentencing forms], so long as he or she objects
                 before sentencing, and allows the district court to strike information that
                 is based on 'impalpable or highly suspect evidence." Sasser v. State, 130
                 Nev., Adv. Op. 41, 324 P.3d 1221, 1226 (2014) (quoting Stockmeier, 127
                 Nev. at 248, 255 P.3d at 213 (internal quotations omitted)). "[lit is clear
                 that 'any objections [that the defendant has] must be resolved prior to
                 sentencing." Id. at 1223 (alteration in original) (quoting Stockmeier, 127
                 Nev. at 250, 255 P.3d at 214).
                             In Goodson v. State, the defendant objected to a "disputed
                 portion" of the PSI used by the district court at sentencing. 98 Nev. 493,
                 495, 654 P.2d 1006, 1007 (1982). "This court recognize[d] the discretion
                 vested in the district court with regard to imposing sentence[s] on the
                 criminals before it."   Id.      However, we concluded that "an abuse of
                 discretion will be found when the defendant's sentence is prejudiced from
                 consideration of information or accusations founded on impalpable or
                 highly suspect evidence." Id. at 495-96, 654 P.2d at 1007; see also Silks v.
                 State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976) ("So long as the record
                 does not demonstrate prejudice resulting from consideration of
                 information or accusations founded on facts supported only by impalpable
                 or highly suspect evidence, this court will refrain from interfering with the
                 sentence imposed.").
                             Accordingly, to decide whether any errors in Blankenship's
                 and Briones' sentencing forms provide a basis for new sentencing
                 hearings, we must determine (1) whether those errors constituted
                 impalpable or highly suspect evidence, and (2) if so, whether prejudice



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                       resulted from the district court's consideration of information founded
                       upon such evidence.
                       Blankenship's sentencing forms
                                   Blankenship argues that the PSP and PSI penalized him for
                       having bipolar disorder and paranoid schizophrenia, which prevented him
                       from working, because he was characterized as unemployed with a
                       nonexistent work history. NRS 176.145(1)(b) states that a PSI "must
                       contain. . . [finformation concerning. . . the circumstances affecting the
                       defendant's behavior." NRS 213.10988(2) provides that when creating
                       standards for sentencing forms, the Division Chief must "first consider all
                       factors which are relevant in determining the probability that a convicted
                       person" will violate the law if granted probation.
                                   Undoubtedly, a mental disability affects a defendant's
                       behavior and is relevant when weighing recidivism probability.      See, e.g.,
                       People v. Watters, 595 N.E.2d 1369, 1379 (Ill App. Ct. 1992) (recognizing
                       that a disability is a significant mitigating factor in sentencing).
                       Therefore, we conclude that sentencing forms must, at a minimum,
                       include considerations for legitimate mental disabilities and the current
                       PSP categories should not penalize a defendant as a result of a disability.
                                   Because neither NAC 213.590's 27 factors nor the PSP's 35
                       considerations take into account a defendant's mental disabilities,
                       Blankenship's disabilities were not mitigating factors considered by the
                       Division when it formulated the Sentencing Scale calculation. While the
                       PSI does summarize Blankenship's mental health history, the PSP and
                       Sentencing Scale scoring mechanisms failed to address his disabilities.
                       Thus, this factual reference had no effect on the Division's sentencing
                       recommendation in the PSI. Rather, the record reflects that

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                 Blankenship's disabilities actually worked against him. The Scoring
                 Sheet demonstrates that Blankenship was penalized six points in the PSP
                 for being unemployable with a nonexistent work history.
                              A simple error in a PSP does not constitute impalpable or
                 highly suspect evidence. Rather, the error must be such that it taints the
                 PSI sentencing recommendation considered by the district court. 6 For
                 example, a scoring error in a PSP or Sentencing Scale can taint the PSrs
                 recommendation because the Division's overall recommendation could
                 change from probation to borderline or from borderline to prison; or, just
                 as harmful, the wrong sentencing range could be identified on the
                 Sentencing Scale, causing the Division to recommend a more severe
                 sentence than was justified.
                              Here, had Blankenship not been penalized six points, he
                 would have scored high enough on the Sentencing Scale to justify a
                 recommendation for probation Instead, Blankenship was placed in the
                 borderline category, and the Division recommended prison. Accordingly,
                 we conclude that Blankenship's PSI recommendation was tainted as a
                 result of the error, and, therefore, the sentencing forms constituted
                 impalpable or highly suspect evidence.?


                       6 We   stress the importance of accurate PSI sentencing
                 recommendations for a number of reasons, including, as in Blankenship's
                 case, the fact that the State may stipulate in a plea agreement to concur
                 with the PSI recommendation, and that same PSI recommendation may
                 later be considered by the Pardons Board.

                        ?Blankenship also argues that the PSP subjectively characterized
                 his family situation as being disruptive, and the PSI subjectively
                 characterized his interview with the Division as hostile. We initially note
                 that the Division's consideration of these two factors falls within NAC
                 213.590(1)(r) and (z). Furthermore, Blankenship failed to call the Division
                                                                   continued on next page...
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                            Blankenship's attorney objected to the PSP prior to and during
                the sentencing hearing because it did not account for his disabilities. The
                district court did not rule on his objection; rather, the court discussed
                other justifications for the sentence and then sentenced Blankenship to a
                term of incarceration consistent with the PSI recommendation. Because
                we conclude that the sentencing forms constituted impalpable or highly
                suspect evidence and because the district court failed to rule on the
                objection, we further conclude the district court abused its discretion when
                it considered information in the PSI based on that impalpable or highly
                suspect evidence. Goodson, 98 Nev. at 495-96, 654 P.2d at 1007. As such,
                Blankenship's sentence was prejudiced. We therefore vacate his sentence
                and remand for resentencing.
                Briones' sentencing forms
                            Briones argues that the Division's PSI recommendation was
                unlawfully elevated beyond the Sentencing Scale calculation. We
                disagree.
                            NRS 176.145(1)(g) provides that a PSI must contain a
                recommended sentencing range but in no way limits the recommendation
                to what is provided for in a PSP or Sentencing Scale. Additionally, NRS
                176.145(2) allows the Division to account for "any additional information


                ...continued
                employee who created the forms as a witness in the district court
                proceedings. Had this witness been called, he or she likely would have
                provided objective facts to sufficiently support the forms'
                characterizations. See Objective, Black's Law Dictionary (10th ed. 2014)
                (defining "objective" as "based on externally verifiable phenomena, as
                opposed to an individual's perceptions, feelings, or intentions"). Thus, we
                conclude that this argument is without merit.

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                    that it believes may be helpful" when reaching a sentencing
                    recommendation. And, NRS 213.10988(3) expressly permits the Division
                    to recommend greater punishment based on repetitive criminal conduct by
                    the defendant. Accordingly, we conclude that the statutes afford the
                    Division some discretion to deviate from the Sentencing Scale calculations
                    in making a sentencing recommendation in the PSI, so long as a rational
                    basis for doing so is sufficiently articulated.
                                 On the bottom of Briones' Sentencing Scale form, the Division
                    indicated that its sentencing recommendation deviated from the
                    Sentencing Scale based on Briones' prior offenses. We conclude that this
                    was a rational basis to deviate from and that Briones' sentencing forms
                    did not constitute impalpable or highly suspect evidence. As a result, we
                    cannot say that Briones' sentence was prejudiced because the district
                    court did not rely on impalpable or highly suspect evidence, and, in fact,
                    the court expressly disclaimed reliance on the PSI sentencing
                    recommendation in reaching its "independent [sentencing] determination."
                                                    CONCLUSION
                                 Based on the foregoing, we confirm Blankenship's judgment of
                    conviction but vacate his sentence and remand his case for a new
                    sentencing hearing. We instruct the district court that, prior to
                    conducting a new sentencing hearing, the PSP, Sentencing Scale, and PSI
                    must be amended to account for and score Blankenship's mental
                    disabilities and their impact on his employability. However, because the




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                 district court in Briones' case did not abuse its sentencing discretion, we
                 affirm his judgment of conviction.
                                                         7--Lt
                                                      Hardesty

                 We concur:


                   Cl Aft a '56              , CJ
                 Parraguirre


                                                 J.




                                                 J.




                 Gibbons


                                             ,   J.
                 Pickering




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