                                                          131 Nev., Advance Opinion     14'
                              IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                        JIMMY D. PITMON,                                    No. 65000
                        Appellant,
                        vs.
                        THE STATE OF NEVADA,
                                                                                 FILED
                        Respondent.                                               MAR 2 6 2015
                                                                                      1E K. LINDEMAN
                                                                               CLEM IF WFREM4 ania
                                                                              BY
                                                                                 CH




                                    Appeal from a judgment of conviction of attempted\lewdness
                        with a child under the age of 14. Eighth Judicial District Court, Clark
                        County; Douglas W. Herndon, Judge.
                                   Affirmed.

                        Turco & Draskovich, LLP, and Robert M. Draskovich, Las Vegas; Law
                        Office of Gary A. Modafferi and Gary A. Modafferi, Las Vegas,
                        for Appellant.

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




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

                                                       OPINION
                        By the Court, TAO, J.:
                                    When a criminal defendant stands convicted of two or more
                        felony criminal offenses and has already been sentenced to a term of
                        imprisonment for one of those offenses, NRS 176.035(1) expressly permits

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                   a district court to order that the sentence for the second offense be
                   imposed either concurrently or consecutively to the first sentence. In this
                   appeal, appellant Jimmy D. Pitmon asserts that NRS 176.035(1) violates
                   the Due Process Clause of the United States and Nevada Constitutions'
                   because it fails to articulate any "pre-existing and reviewable criteria" to
                   guide the district court in deciding whether the second sentence should be
                   imposed concurrently or consecutively. We conclude that NRS 176.035(1)
                   is not constitutionally deficient and therefore affirm.

                                                      FACTS
                               Pitmon was originally charged in three separate cases with
                   multiple counts of attempted lewdness with a child under the age of 14
                   arising from allegations that he fondled the genitals of three different 4-
                   year-old children on multiple occasions. The charges in two of those cases
                   were eventually consolidated together into a single case (the first case),
                   leaving two cases pending. Following negotiations with the district
                   attorney, Pitmon agreed to enter a plea of guilty in each case to one count
                   of attempted lewdness with a child under the age of 14, and all other
                   pending charges and counts were to be dismissed after rendition of
                   sentence.
                               The written guilty plea agreements signed by Pitmon in both
                   cases were virtually identical, and both specified that the State retained
                   the right to argue at sentencing. The guilty plea agreements also



                          'The Fourteenth Amendment to the U.S. Constitution and Article 1,
                   Section 8, paragraph 5 of the Nevada Constitution both provide that no
                   person shall be deprived of "life, liberty, or property, without due process
                   of law."


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                   acknowledged that the sentencing judge possessed the discretion to order
                   that the sentences be served either concurrently or consecutively.
                                Prior to sentencing, Pitmon underwent a psychosexual
                   evaluation by psychologist Dr. John Paglini and was classified as a "high"
                   risk to reoffend, which rendered him statutorily ineligible to receive
                   probation.   See NRS 176A.110. During his interview with Dr. Paglini,
                   Pitmon admitted to inappropriate sexual contact with a fourth child years
                   before the instant offenses. Thus, the presentence investigation report
                   prepared by the Nevada Division of Parole and Probation noted that
                   Pitmon had victimized at least four minor children over the course of a
                   decade.
                                Pitman was sentenced in the first case and received the
                   maximum possible sentence, which was a minimum term of 8 years and a
                   maximum term of 20 years' imprisonment. See NRS 193.330(1)(a)(1); NRS
                   201.230(2). Two days later, he appeared for sentencing in the instant case
                   and again received the maximum possible sentence. Additionally, the
                   district judge in the instant case ordered that the sentence be served
                   consecutively to the sentence previously imposed in the first case.
                                Pitmon failed to file a direct appeal from his conviction, but
                   the district court subsequently found that Pitmon had been improperly
                   deprived of a direct appeal and permitted Pitmon to file the instant appeal
                   pursuant to NRAP 4(c)(1).

                                                  DISCUSSION
                                In general, district judges in Nevada possess wide discretion
                   in imposing sentences in criminal cases. See Houk v. State, 103 Nev. 659,
                   664, 747 P.2d 1376, 1379 (1987) ("The sentencing judge has wide
                   discretion in imposing a sentence. . . ."). On appeal, a sentence imposed in

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                   district court will not be overruled absent a showing of "abuse of
                   discretion." Id. Thus, appellate courts will refrain from interfering with
                   sentences imposed in district court "[sic) 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."   Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161
                   (1976). Furthermore, regardless of its severity, a sentence that is within
                   the statutory limits is not considered to violate the Eighth Amendment's
                   proscription against 'cruel and unusual punishment unless the statute
                   fixing punishment is unconstitutional or the sentence is so unreasonably
                   disproportionate to the offense as to shock the conscience."     Blume v.
                   State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting CuIverson v.
                   State, 95 Nev. 433, 435, 596 P.2d 220, 222 (1979)); see Harmelin v.
                   Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
                   that the Eighth Amendment does not require strict proportionality
                   between crime and sentence, but forbids only an extreme sentence that is
                   grossly disproportionate to the crime).
                               In this appeal, Pitmon does not contend that his sentence was
                   "cruel and unusual," or that the district court relied upon "impalpable or
                   highly suspect evidence" in imposing his sentence. Pitmon also does not
                   allege that his sentence constituted an "abuse of discretion" under the
                   particular circumstances of this case. Rather, Pitmon argues that NRS
                   176.035(1) is facially unconstitutional because it affords virtually
                   unfettered discretion to the district court to determine whether sentences
                   for separate offenses should be imposed concurrently or consecutively.
                   Thus, Pitmon argues that NRS 176.035(1) fails to comply with the Due
                   Process Clause because an ordinary citizen facing sentencing for different

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                   offenses cannot reasonably understand or anticipate whether the
                   sentences are likely to be imposed concurrently or consecutively. Pitmon
                   further contends that the statute lacks meaningful or specific standards
                   guiding when consecutive sentences may be imposed and permits
                   arbitrary imposition of those sentences by a district court. More broadly,
                   Pitmon also argues that Nevada's sentencing scheme is invalid because it
                   lacks meaningful appellate review of any sentence imposed by a district
                   court, no matter how arbitrary that sentence may have been.
                                The constitutionality of a statute is a question of law that this
                   court reviews de novo. See Flamingo Paradise Gaming, LLC v. Chanos,
                   125 Nev. 502, 509, 217 P.3d. 546, 551 (2009). Statutes are presumed
                   valid, and the burden therefore falls upon Pitmon to make a "clear
                   showing of invalidity."    Silvar v. Eighth Judicial Dist. Court, 122 Nev.
                   289, 292, 129 P.3d 682, 684 (2006). A statute may be challenged as
                   unconstitutional either because it is vague on its face, or because it is
                   vague as applied only to the particular challenger.        Flamingo Paradise,
                   125 Nev. at 509-10,217 P.3d at 551-52. Here, Pitmon asserts that NRS
                   176.035(1) is unconstitutional on its face because it is inherently vague
                   with respect to any sentence that could be imposed upon any criminal
                   defendant who stands convicted of multiple offenses.
                                When analyzing whether a statute is unconstitutionally vague
                   in violation of the Due Process Clause, courts generally apply a two-factor
                   test.   Silvar, 122 Nev. at 293, 129 P.3d at 685; see also Kolender v.
                   Lawson, 461 U.S. 352, 357 (1983). Under this two-factor test, a statute is
                   unconstitutionally vague if it "(1) fails to provide notice sufficient to enable
                   persons of ordinary intelligence to understand what conduct is prohibited
                   and (2) lacks specific standards, thereby encouraging, authorizing, or even

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                   failing to prevent arbitrary and discriminatory enforcement."    Silvar, 122
                   Nev. at 293, 129 P.3d at 685.
                               To be considered unconstitutional on its face, a statute must
                   be vague "in all of its applications." Flamingo Paradise, 125 Nev. at 511-
                   12, 217 P.3d at 552-53. When a challenge is made to a statute that
                   implicates criminal penalties or constitutionally protected rights, the
                   statute is unconstitutional if the vagueness "so permeates the text that the
                   statute cannot meet these requirements in most applications; and thus,
                   this standard provides for the possibility that some applications of the law
                   would not be void, but the statute would still be invalid if void in most
                   circumstances." Id.
                               Pitmon's challenge to NRS 176.035(1) runs as follows. He
                   contends that sentences for different offenses should normally be imposed
                   concurrently because the statute specifies, in its second sentence, that "if
                   the court makes no order with reference thereto, all such subsequent
                   sentences run concurrently." NRS 176.035(1). Pitmon interprets this
                   sentence as an intentional restriction by the Nevada Legislature upon the
                   discretion of district courts to impose consecutive sentences by requiring
                   that such sentences usually be imposed concurrently "by default."
                   Therefore, Pitmon argues that, because a person of ordinary intelligence
                   would understand that all subsequent sentences must normally run
                   concurrently by default, a district court cannot constitutionally deviate
                   from this expectation in the absence of clearly established criteria.
                   Because those clear criteria are missing from the statute, he avers that
                   the statute is unconstitutional unless all subsequent sentences are
                   imposed concurrently.



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                                  The fundamental problem with Pitmon's argument is that it
                      misreads NRS 176.035(1). In analyzing the meaning of a statute, the
                      court must interpret it in a reasonable manner, that is, Itthe words of the
                      statute should be construed in light of the policy and spirit of the law, and
                      the interpretation made should avoid absurd results." Desert Valley Water
                      Co. v. State, 104 Nev. 718, 720, 766 P.2d 886, 886-87 (1988). A statute
                      "should be given [its] plain meaning and must be construed as a whole and
                      not be read in a way that would render words or phrases superfluous or
                      make a provision nugatory." Mangarella v. State, 117 Nev. 130, 133, 17
                      P.3d 989, 991 (2001) (internal quotations omitted).
                                  Pitmon focuses upon a single sentence of NRS 176.035(1) in
                      isolation and ignores the very first sentence of NRS 176.035(1), which
                      expressly states that a district court "may" impose consecutive subsequent
                      sentences. When the first and second sentences of the statute are read
                      together, as they must be, it is clear that NRS 176.035(1) was not intended
                      to restrict the ability of sentencing courts to impose consecutive sentences
                      for separate offenses, but rather was intended to give district courts
                      discretion in determining whether such sentences should be imposed
                      consecutively or concurrently.
                                  When the language of a statute is plain and unambiguous, the
                      court is not permitted to look for meaning beyond the statute and the
                      court will only go to legislative history when the statute is ambiguous.
                      Estate of Smith v. Mahoney's Silver Nugget, Inc.,     127 Nev. „ 265
                      P.3d 688, 690 (2011). We conclude that the plain language of NRS 176.035
                      is unambiguous. However, even if we were to find that the plain language
                      of the statute was ambiguous, the legislative history clearly demonstrates
                      that NRS 176.035 was intended to give district courts discretion in

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                   determining whether such sentences should be imposed consecutively or
                   concurrently.
                               NRS 176.035 was originally enacted in 1967. Prior to 1987,
                   the statute required that any subsequent offense committed while a
                   defendant was on probation for an earlier offense was required to be
                   imposed consecutively. In 1985, the Governor and the Legislature
                   established a "Commission to Establish Suggested Sentences for Felonies,"
                   which studied Nevada's sentencing statutes and issued a report in
                   December 1986 recommending extensive revisions to Nevada's criminal
                   statutes. Some of these recommendations were reflected in Assembly Bill
                   (A.B.) 110, introduced during the 1987 legislative session. Witnesses
                   testified to the Legislature that, among other suggested changes, judges
                   should be given discretion to determine whether sentences for subsequent
                   offenses should be imposed concurrently or consecutively, and that the
                   statute should not impose a "default" requirement either way.        (See
                   Hearing on A.B. 110 Before the Assembly Judiciary Comm., 64th Leg.
                   (Nev., May 26, 1987)). The Legislature enacted A.B. 110, which revised
                   NRS 176.035(1) to specify that judges have discretion to determine
                   whether sentences for subsequent crimes should be imposed concurrently
                   or consecutively.
                               More recently, NRS 176.035(1) was further revised by the
                   Legislature in 2013 through Senate Bill (S.B.) 71 (in a manner that
                   became effective in July 2014 and therefore does not apply to Pitmon's
                   conviction). The introduction to S.B. 71 describes the version of NRS
                   176.035 that applies to Pitmon's conviction as follows:
                               Under [pre-2014] law, a person who is convicted of
                               committing more than one crime may be


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                               sentenced to serve the sentences imposed for each
                               crime concurrently or consecutively.
                   S.B. 71, 77th Leg. (Nev. 2013).
                               Thus, the legislative history of MRS 176.035 makes clear that
                   the Nevada Legislature did not intend MRS 176.035(1) either to limit the
                   discretion of district judges to impose sentences concurrently or
                   consecutively, or to require that such sentences be imposed concurrently
                   "by default." Quite to the contrary, the 1987 amendments to MRS
                   176.035(1) were expressly designed to give judges greater discretion over
                   such decisions than they had before 1987 when such sentences were
                   required to be imposed consecutively. Accordingly, it cannot be said that
                   MRS 176.035(1) was intended to require that a person facing sentencing
                   for two different offenses should be awarded concurrent sentences rather
                   than consecutive ones.
                               If anything, it strikes the court that an ordinary person who
                   chooses to commit two offenses and is convicted of both should reasonably
                   anticipate the possibility, and perhaps even the likelihood, that he or she
                   will have to serve consecutive sentences for each crime. To conclude
                   otherwise would be to effectively reward defendants who commit multiple
                   offenses and require that they be sentenced as if they had only committed
                   one. Nothing in the Due Process Clause demands that defendants who
                   commit multiple crimes must receive the same sentence as defendants
                   who commit only one. See United States v. Mun, 41 F.3d 409, 413 (9th Cir.
                   1994) (defendant does not have a due process right to concurrent
                   sentences); see also Isreal v. Marshall, 125 F.3d 837, 839 (9th Cir. 1997)
                   ("NJ o right to concurrency inheres in the Due Process Clause. . . .").
                               Furthermore, the Due Process Clause does not require that
                   every sentencing statute include specifically enumerated and rigorously
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                   defined checklists that must be mechanically applied by rote in every case.
                   See Branch v. Cupp, 736 F.2d 533, 536 (9th Cir. 1984) (stating that
                   defendant's due process rights were not violated merely because judge
                   failed to articulate specific reasons for imposing sentence). Rather, the
                   nature of criminal sentencing in Nevada is such that judges must be able
                   to exercise discretion in order to match the sentence imposed in each case
                   to the nature of a particular crime, the background of a particular
                   defendant, the potential effect of the crime on any victim, and any other
                   relevant factor. As former Justice Rose observed, "[1] egislatures cannot
                   create enough sentencing law to match the nuances of each crime and
                   perpetrator, and thus they confer on their respective judiciaries some
                   discretion in sentencing." Sims v. State, 107 Nev. 438, 443, 814 P.2d 63,
                   66 (1991) (Rose, J., dissenting). The mere existence of such discretion does
                   not, by itself, render a statute unconstitutionally vague. The Due Process
                   Clause does not require mathematical precision, but only that statutes be
                   comprehensible to persons of ordinary intelligence.
                                 Pitmon contends that many of our sister states have enacted
                   legislation that removes such unbounded discretion from sentencing
                   judges and instead requires that specific findings be made before
                   consecutive sentences may be imposed. 2 But the fact that many states


                         2 SeeAlaska (Alaska Stat. § 12.55.127 (2014)); Arizona (Ariz. Rev.
                   Stat. Ann. § 13-708 (Supp. 2014)); Arkansas (Ark. Code Ann. § 5-4-403
                   (2013)); Florida (Fla. Stat. Ann. § 921.16 (West Supp. 2015)); Idaho (Idaho
                   Code Ann. § 18-308 (2004)); Illinois (730 Ill. Comp. Stat. Ann. 5/5-8-4
                   (West Supp. 2014)); Kansas (Kan. Stat. Ann. § 21-4608 (2007)); Kentucky
                   (Ky. Rev. Stat. Ann. § 532.110 (LexisNexis 2008)); Maryland (Md. Rules §
                   4-351 (LexisNexis 2015); Md. Code Ann., Corr. Servs. § 9-201 (LexisNexis
                   2008)); Mississippi (Miss. Code Ann. § 99-19-21 (2007)); Missouri (Mo.
                   Ann Stat. § 558.026 (West 2012)); Montana (Mont. Code Ann. § 46-18-401
                                                                      continued on next page...
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                   have chosen to remove such discretion from sentencing judges does not
                   mean that such discretion is constitutionally prohibited or that similar
                   standards are constitutionally mandated in every state.
                               Further, the failure to require the district court to make
                   specific findings before imposing consecutive sentences does not render the
                   sentence unreviewable on appeal. A sentence may be reversed on appeal
                   either if the record demonstrates "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, 94, 545
                   P.2d 1159, 1161 (1976), or if the sentence was "so unreasonably
                   disproportionate to the offense as to shock the conscience," Blume v. State,
                   112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (internal quotations omitted).
                   See Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion)
                   (explaining that the Eighth Amendment does not require strict
                   proportionality between crime and sentence, but forbids only an extreme
                   sentence that is grossly disproportionate to the crime). Pitmon fails to
                   explain why the Due Process Clause must be read to mandate that
                   appellate courts in Nevada be given more authority than they currently
                   possess to review criminal sentences, or why the existing standards are
                   constitutionally insufficient to protect the rights of a defendant sentenced
                   in Nevada. Pitmon's concerns are more properly left to the Legislature.




                   ...continued
                   (2011)); New Jersey (N.J. Stat. Ann. § 2C:44-5 (2005)); Texas (Tex. Crim.
                   Proc. Code Ann. § 42.08 (West Supp. 2014)); Utah (Utah Code Ann. § 76-3-
                   401 (LexisNexis 2012)); and Wisconsin (Wis. Stat. Ann. § 973.15 (West
                   2007)).


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                               On balance, we cannot conclude that the text of NRS
                   176.035(1) is so "permeated" by vagueness that the imposition of
                   consecutive sentences would be unfair "in most circumstances" whenever a
                   defendant is sentenced for committing two separate crimes. Quite to the
                   contrary, it seems to the court that the imposition of consecutive sentences
                   for the commission of two separate crimes would represent an outcome
                   reasonably to be expected by persons of ordinary intelligence. See Fierro v.
                   MacDougall, 648 F.2d 1259, 1260 (9th Cir. 1981) (concluding that, even
                   where legislature did not authorize the imposition of consecutive
                   sentences, due process clause permitted judge to impose consecutive
                   sentences because "[t]he imposition of consecutive sentences is nothing
                   more than the imposition, for each crime, of the sentence fixed by
                   legislative act. Such sentencing [constitutes] literal compliance with that
                   which the legislature has prescribed.").
                               To the extent that Pitmon asserts that his sentences were
                   unconstitutional "as applied" to him, we conclude that the sentences
                   imposed did not violate constitutional standards and the district court did
                   not abuse its discretion by ordering that those sentences be served
                   consecutively. Pitmon entered pleas of guilty to only two felony counts
                   even though he was originally charged with committing similar offenses
                   against three different children over a period of several months and
                   admitted to committing additional offenses against a fourth child on prior
                   occasions. Further, his psychosexual evaluation classified him as a "high"
                   risk to reoffend. We conclude that the sentences imposed were not
                   unreasonably disproportionate to the offenses to which Pitmon pleaded
                   guilty, even though he received consecutive maximum sentences.



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                                                 CONCLUSION
                                For the reasons discussed above, we conclude that NRS
                   176.035(1) is not unconstitutionally vague in violation of the Due Process
                   Clause of the U.S. and Nevada Constitutions. Accordingly, we affirm the
                   sentence imposed by the district court.




                                                      Tao


                   We concur:


                     /1".
                                                     , C.J.
                   Gibbons


                                                      J.
                   Silver




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