                                                         133 Nev., Advance Opinion i01#
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   ANTHONY JACKSON, A/K/A                                No. 70870
                   ANTHONY RASHARD JOHNSON,
                   Appellant,
                   vs.                                                     FILED
                   THE STATE OF NEVADA,
                   Respondent.
                                                                            DEC 2     2017
                                                                               ET     BROWN.
                                                                                           tNitT
                                                                                     cfNicyf

                                                                                      CLERK


                              Appeal from a district court order revoking probation and an
                   amended judgment of conviction. Eighth Judicial District Court, Clark
                   County; Kerry Louise Earley, Judge.
                              Affirmed.



                   Philip J. Kohn, Public Defender, and Maxwell A. Berkley, Deputy Public
                   Defender, Clark County,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, and Krista D. Barrie, Chief Deputy District Attorney,
                   Clark County,
                   for Respondent.




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




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                                                    OPINION

                   By the Court, GIBBONS, J.:
                               In this appeal, we address the limited nature of an appeal taken
                   from an amended judgment of conviction. We conclude that, in an appeal
                   taken from an amended judgment of conviction, the appellant may only
                   raise challenges that arise from the amendments made to the original
                   judgment of conviction. Because appellant Anthony Jackson does not
                   challenge the amendments made to his original judgment of conviction, we
                   affirm.

                                                     FACTS
                               Jackson pleaded guilty pursuant to North Carolina v. Alford,
                   400 U.S. 25 (1970), to one count of possession of a dangerous weapon. The
                   district court adjudicated him guilty of the dangerous weapon charge and
                   sentenced him to 364 days in the county jail. The district court suspended
                   the sentence, placed Jackson on probation for an indeterminate period not
                   to exceed one year, and ordered the sentence to run concurrently with
                   Jackson's sentence in a California case. Jackson did not pursue a direct
                   appeal.
                               The State subsequently accused Jackson of violating the
                   conditions of his probation. The district court conducted a probation
                   revocation hearing and determined Jackson had violated his probation. The
                   district court ordered Jackson's probation revoked, amended his jail
                   sentence by reducing it from 364 days to 300 days, and awarded him 46
                   days' credit for time served. This appeal follows.




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                                                   DISCUSSION
                                Jackson claims his sentence of "three hundred sixty-four (364)
                    days concurrent with his California case, suspended and placed on
                    probation for one year concurrent with his California case," constitutes
                    cruel and unusual punishment in violation of the Eighth Amendment of the
                    United States Constitution and Article 1, Section 6, of the Nevada
                    Constitution. Because Jackson's claim plainly challenges the
                    constitutionality of the sentence imposed in his original judgment of
                    conviction, we must consider whether an appellant may raise claims that
                    arise from the original judgment of conviction in an appeal taken from an
                    amended judgment of conviction.
                                In Sullivan v. State, the Nevada Supreme Court addressed a
                    similar issue when it considered whether the entry of an amended judgment
                    of conviction provided good cause to overcome the procedural bar to an
                    untimely filed postconviction petition for a writ of habeas corpus. 120 Nev.
                    537, 96 P.3d 761 (2004). Sullivan filed his postconviction habeas petition
                    more than one year after the remittitur issued on direct appeal, but because
                    the petition was filed within one year of the entry of the amended judgment
                    of conviction, the parties stipulated to treating the petition as timely, and
                    the district court denied the petition on the merits. Id. at 539, 96 P.3d at
                    763.
                                The Nevada Supreme Court noted that a judgment of conviction
                    may be amended at any time to correct an illegal sentence or clerical error
                    and an amended judgment may be entered years or decades after entry of
                    the original judgment of conviction. Id. at 540, 96 P.3d at 764. The court
                    reasoned that restarting the one-year time period for all purposes after an


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                   amendment occurred would frustrate the purposes of NRS 34.726 and
                   "would undermine the doctrine of finality of judgments by allowing
                   petitioners to file post-conviction habeas petitions in perpetuity." Id. The
                   court therefore concluded that the one-year statutory time limit for filing a
                   postconviction habeas petition did not automatically restart upon the filing
                   of an amended judgment of conviction. Id. at 540-41, 96 P.3d at 764.
                               The Nevada Supreme Court has "long emphasized the
                   importance of the finality of judgments." Trujillo v. State, 129 Nev. 706,
                   717, 310 P.3d 594, 601 (2013); see also Groesbeck v. Warden, 100 Nev. 259,
                   261, 679 P.2d 1268, 1269 (1984). The Nevada Supreme Court's reasoning
                   in Sullivan with regard to the finality of judgments applies to the issue
                   raised by this appeal. As the Sullivan court noted, an amended judgment
                   of conviction can be entered years, or even decades, after entry of the
                   original judgment of conviction. See Sullivan, 120 Nev. at 540, 96 P.3d at
                   764. Allowing a defendant in an appeal from an amended judgment of
                   conviction to raise challenges that could have been raised on appeal from
                   the original judgment of conviction would undermine the doctrine of finality
                   of judgments by allowing a defendant to challenge the original judgment of
                   conviction in perpetuity. The entry of an amended judgment of conviction
                   should not provide a basis for raising claims that could have, and should
                   have, been raised on appeal from the original judgment of conviction. See
                   Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (providing
                   that "claims that are appropriate for a direct appeal must be pursued on
                   direct appeal, or they will be considered waived in subsequent
                   proceedings"), overruled on other grounds by Thomas v. State, 115 Nev. 148,
                   979 P.2d 222 (1999). Therefore, we conclude that in an appeal taken from


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                   an amended judgment of conviction, the appellant may only raise challenges
                   that arise from the amendments made to the original judgment of
                   conviction.
                                 Jackson appeals from his amended judgment of conviction.
                   Jackson does not challenge the revocation of his probation or the
                   amendment of his sentence. Instead, he only challenges the
                   constitutionality of the sentence imposed in the original judgment of
                   conviction. We conclude this claim is not properly raised in this appeal.
                   Accordingly, we affirm the amended judgment of conviction.



                                                                                    J.
                                                        Gibbons


                   We concur:


                                                   C.J.
                   Silver


                                               ,   J.
                   Tao




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