                                                         130 Nev., Advance Opinion 4j I
                             IN THE SUPREME COURT OF THE STATE OF NEVADA

                      KEITH SASSER,
                      Appellant,
                                                                           No. 60091        FILE
                      vs.                                                                   MAY 2 9 204
                      THE STATE OF NEVADA,                                               TRACE K. LINDE N
                                                                                       CLE OF
                      Respondent.                                                      BY



                                 Appeal from a judgment of conviction, pursuant to a gul;ty
                      plea, of one count of robbery. Eighth Judicial District Court, Clark
                      County; David B. Barker, Judge.
                                 Affirmed.

                      Legal Resource Group, LLC, and T. Augustas Claus, Henderson,
                      for Appellant.

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


                      BEFORE THE COURT EN BANC,
                                                        OPINION
                      By the Court, GIBBONS, C.J.:
                                 After pleading guilty to robbery, appellant Keith Sasser
                      requested that the district court amend his presentence investigation
                      report (PSI) prior to sentencing to correct an error. The district court
                      amended Sasser's PSI in the judgment of conviction, rather than
                      amending the PSI itself. In this opinion, we address whether the district
                      court can properly amend a PSI in the judgment of conviction.

                                       FACTS AND PROCEDURAL HISTORY
                                 Sasser met Dominique Montenegro at a nightclub in Las
                      Vegas. He offered to help Montenegro find her friends and indicated that
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                he was related to an individual in her group. After they were unable to
                find her group, she accepted a ride from him to her friend's house
                However, Montenegro alleges that Sasser did not stop the car when they
                arrived at her destination. She attempted to get out of the car while it
                was still moving but alleges that Sasser grabbed her hair, punched her in
                the face, and ran over her foot with his car to prevent her from escaping.
                The exact order of events is unclear from Montenegro's statement, but she
                alleges the following events occurred: (1) Sasser hit her causing her to lose
                consciousness; (2) she awoke outside the vehicle, and saw Sasser going
                through her purse; (3) Sasser sexually assaulted her multiple times; (4)
                Sasser told her to "[s]hut the [explicit] up," and she thought he was going
                to kill her; and (5) Sasser then apologized to her. Eventually, she escaped
                and checked into the University Medical Center (UMC).
                            Sasser pleaded guilty to robbery, pursuant to North Carolina
                v. Alford, 400 U.S. 25 (1970). 1 At sentencing, Sasser requested that the
                district court amend his PSI to exclude certain information that he alleged
                was unsupported. After hearing arguments from both parties, the district
                court found that two pages contained unsupported information and struck
                part of the conclusion. These stricken portions included: (1) the alleged
                threats from Sasser to kill Montenegro, and (2) a dismissed sexual assault
                charge against Sasser in an unrelated, subsequent case. The district court
                noted these amendments in Sasser's judgment of conviction. Sasser
                requested that additional information be stricken, however, the district



                      'The United States Supreme Court in Alford concluded that a
                defendant can enter a plea agreement even though he or she maintains his
                or her innocence. 400 U.S. at 38.


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                 court found sufficient evidence to support the remaining information. The
                 district court then sentenced Sasser pursuant to his Alford plea to a
                 minimum of 48 months and a maximum of 120 months. Sasser now
                 appeals.
                                               DISCUSSION
                             On appeal, Sasser argues that the district court erred in (1)
                 amending his PSI in the judgment of conviction, (2) refusing to strike more
                 information from the PSI, and (3) sentencing him. Initially, we note that a
                 defendant has a right to object to his PSI and the district court will make
                 a determination on the PSI information, so long as the defendant objects
                 to it at the time of sentencing. Stockmeier v. State, Bd. of Parole Comm'rs,
                 127 Nev. „ 255 P.3d 209, 213-14 (2012); see also NRS 176.156(1).
                 However, since we have not addressed the specific procedure for amending
                 a PSI, we take this opportunity to determine whether a district court may
                 properly amend a defendant's PSI in the judgment of conviction.

                 The district court did not err in amending Sasser's PSI in his judgment of
                 conviction
                             Sasser argues that the district court improperly amended the
                 PSI with the judgment of conviction rather than returning it to the
                 Division of Parole and Probation (P&P). 2 We disagree.




                       2Sasser also argues that it is unclear whether the district court
                 struck the assertions concerning the subsequent arrest for sexual assault.
                 We conclude that the judgment of conviction is sufficiently clear to
                 determine (1) what information the district court intended to strike from
                 the PSI, and (2) what information the district court found to be
                 unsupported by evidence.


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                             In Stockmeier, this court explained that it is important for a
                defendant to object to his PSI at the time of sentencing because "Nevada
                law does not provide any administrative or judicial scheme for amending a
                PSI after the defendant is sentenced." 127 Nev. at , 255 P.3d at 213.
                Further, this court acknowledged that "the process by which the district
                court must resolve objections to a PSI is not entirely clear." Id. However,
                it is clear that "any objections [that the defendant has] must be resolved
                prior to sentencing." 3 Id. at , 255 P.3d at 214. But other than
                requiring the defendant an opportunity to object, "the Nevada statutes are
                silent as to the process to be followed by either. . . [P&P] or the district
                court for allowing the defendant to make such objections, or for resolving
                the objections, and communicating the resolution to interested parties."
                Id. at 255 P.3d at 213-14. Based on this uncertainty, we take this
                opportunity to clarify that one way in which a district court may amend a
                defendant's PSI is by doing so in the judgment of conviction. 4


                       3 0ther courts have held that when a court finds inaccurate
                information in a defendant's PSI, the district court has other procedures
                for amending the PSI instead of revising the actual PSI.            State v.
                Waterfield, 248 P.3d 57, 59 (Utah Ct. App. 2011) (requiring the district
                court to make findings on the record as to the inaccuracies in a defendant's
                PSI); State v. Craft, 490 S.E.2d 315, 319 (W. Va. 1997) (requiring the
                district court to make a written record of inaccuracies and append it to the
                PSI); Fed. R. Crim. P. 32(i)(3)(C) (requiring federal district courts to
                append a copy of the court's amendment determinations to the PSI).

                      4The  State asks this court to overturn Stockmeier because of the
                burden it places on sentencing judges to amend a defendant's PSI when
                the defendant has opportunities prior to sentencing to amend it. We
                conclude that this is not a compelling reason to overturn precedent.
                Armenta-Carpio v. State, 129 Nev. „ 306 P.3d 395, 398 (2013).
                While we acknowledge that amending a defendant's PSI places a burden
                                                               continued on next page . . .
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                               Here, the district court explained its reasoning for amending
                  Sasser's PSI in the judgment of conviction: "[What's fundamentally
                  important is that there be accurate information in front of
                  any. . . subsequent reviewing authority. And the two documents that
                  follow each individual. . . through the corrective system, are the judgment
                  of conviction and the PSI."
                               We conclude that the district court did not err in amending the
                  PSI in the judgment of conviction.        Stockmeier did not specify how a
                  district court should amend a PSI, so long as it was objected to and
                  resolved prior to sentencing. The district court properly (1) heard
                  argument on the defendant's objections, (2) resolved the objections prior to
                  sentencing, and (3) made a record of its findings on the disputes it chose to
                  resolve. By including its findings in the judgment of conviction, the
                  district court effectively ensured that its findings will accompany the PSI
                  throughout the parole process. 5 See generally NRS 176.159(1) (requiring
                  courts to cause a copy of PSI to be delivered to Department of Corrections
                  "not later than when the judgment of imprisonment is delivered pursuant


                  . . . continued

                  on district courts, we conclude that district courts are in the best position
                  to determine whether a defendant's PSI contains impalpable or highly
                  suspect evidence.

                        5As a practical matter, the district court's approach in this case has
                  the same effect as the procedure used in federal court when ruling on a
                  disputed portion of a presentence report. See Fed. R. Crim. P. 32(i)(3)(C)
                  (requiring court to append a copy of its determinations regarding disputed
                  portions of the presentence report to any copy of the report made available
                  to the Bureau of Prisons).



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                 to NRS 176.335"); NRS 176.325 (requiring the judgment of conviction "be
                 furnished to the officers whose duty it is to execute the judgment"); NRS
                 176.335(2) (requiring sheriff to deliver certified copies of judgment of
                 conviction to person from Department of Corrections who has been
                 authorized to receive the prisoner). Therefore, we conclude that the
                 district court did not err by amending Sasser's PSI in the judgment of
                 conviction. We further note that this opinion should not be construed to
                 require the district courts to amend a defendant's PSI through the
                 judgment of conviction, but simply that it is not error to do so.

                 The district court struck impalpable or highly suspect information from
                 Sasser's PSI and only relied on the remaining supported information when
                 sentencing Sasser
                              Sasser argues that thefl district court should have stricken
                 more information in the PSI. Sasser further argues that even though the
                 district court's judgment of conviction ordered certain sections to be
                 stricken, it did not actually strike the information in the PSI prior to
                 sentencing. As a result, Sasser argues that the district court improperly
                 relied on P&P's recommendation based on the inaccurate information in
                 the PSI when it sentenced Sasser. 6 We disagree.


                       6 Sasser  also argues that he has a right to parole because "the
                 Nevada Legislature has . . . created a constitutionally cognizable liberty
                 interest [in parole] to invoke due process rights." We conclude that this
                 argument is without merit based on the plain language of NRS 213.10705,
                 which expressly states that there is no right to parole. To the extent that
                 Sasser claims that the alleged inaccuracies in his PSI will affect his ability
                 to receive parole in the future, we conclude that this argument is moot
                 based on our conclusion that the district court did not err in finding that
                 the remaining information in Sasser's PSI was not based on impalpable or
                 highly suspect evidence.



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                       The district court properly declined to strike information from
                       Sasser's PSI that was not based on "impalpable and highly suspect
                       evidence"
                             "A district court's findings of fact are entitled to deference" on
                 review. Browning v. State, 124 Nev. 517, 531, 188 P.3d 60, 70 (2008). A
                 defendant's "PSI must not include information based on 'impalpable or
                 highly suspect evidence." Stockmeier, 127 Nev. at , 255 P.3d at 213
                 (quoting Goodson v. State, 98 Nev. 493, 496, 654 P.2d 1006, 1007 (1982));
                 see also Goodson, 98 Nev. at 496, 654 P.2d at 1007 (holding that
                 information in a PSI indicating that the defendant was a drug trafficker
                 was impalpable and highly suspect because it was merely a "bald
                 assertion" and "unsupported by any evidence whatsoever"). However, this
                 court will not interfere with the district court's sentence if the defendant
                 was not prejudiced by the consideration of this impalpable or highly
                 suspect evidence. Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490
                 (2009).
                             Sasser argues that the district court should have stricken
                 more information in the PSI because the information was "inaccurate,
                 unsupported by evidence, contradicted by the physical evidence and/or
                 contradicted by Montenegro's own statements."
                             Here, in addition to the PSI information regarding alleged
                 threats to kill Montenegro and Sasser's subsequent sexual assault charge,
                 which the district court struck, Sasser also objected to the following
                 information in his PSI: (1) that Sasser had been unemployed since
                 January 2010; (2) that officers observed that the victim had obvious
                 bruises around her head and face and a swollen left foot; (3) the Sexual
                 Assault Nurse Examiner (SANE) report that found significant vaginal
                 bruising and bleeding; (4) that Sasser pulled the car over in the desert,
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                struck the victim several times in the head and face with his fist, and the
                victim reported she was knocked unconscious; and (5) the PSI noted the
                violent nature of the offense, as well as the injuries inflicted on the victim
                through physical and sexual assaults, requiring medical treatment.
                              In response, the State presented (1) a picture of Montenegro's
                injuries; (2) Montenegro's statement to police indicating that Sasser had
                hit her in the head; (3) Montenegro's statement that her foot was swelling,
                she had abrasions on her knees and foot, and blood on her foot; and (4) a
                statement from Montenegro's brother indicating that an officer observed
                swelling on her head. Further, regarding Sasser's unemployment, the
                State noted that Sasser had "been incarcerated for [some timel." 7
                              The district court found that sufficient evidence supported the
                above allegations and explained that it was most concerned with the
                violent nature of the offense based on the photographs provided by both
                sides.
                              We conclude that the district court properly declined to strike
                the above information from the PSI because the information was not based
                on impalpable or highly suspect evidence. While Sasser did cast some
                doubt on the PSI information, the State also provided evidence to support
                the information. The district court then had the discretion to decide
                whether any of the information was based on impalpable or highly suspect
                evidence. Considering the additional evidence presented to the district




                         7 When
                            objecting to his PSI, Sasser informed the district court that
                he had been employed full-time until February 2010 and was precluded
                from employment since then due to incarceration.


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                court and Sasser's failure to provide this court with the photographs that
                the district court relied on in making its determination, 8 we cannot say
                that the district court abused its discretion by concluding that the
                information in the PSI was not based on impalpable or highly suspect
                evidence.

                              The district court did not rely on impalpable or highly suspect
                              evidence when sentencing Sasser
                              Sasser claims that even though the district court ordered
                certain information stricken from the PSI, it did not actually strike the
                information prior to sentencing and, as a result, the district court
                improperly relied on P&P's recommendation, which was based on the
                inaccurate information in the PSI, when it sentenced Sasser. The record
                belies this claim.
                              The district court expressly stated that it would not consider
                certain information included in the PSI: (1) the alleged threats to kill
                Montenegro, and (2) a dismissed charge of sexual assault in an unrelated
                subsequent case against Sasser. Further, when discussing the dismissed
                charge, the district court noted:
                              I'm not going to consider it. It's not—I don't think
                              it's going to be part of this analysis. Frankly,
                              there's plenty of violence on the predicate offense
                              to which Mr. Sasser's indicated he's guilty




                      8 See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991)
                (concluding that if materials are not included in the record on appeal, the
                missing materials "are presumed to support the district court's decision"),
                rev'd on other grounds by Riggins v. Nevada, 504 U.S. 127 (1992).


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                             pursuant to the Alford decision. So I'm going
                             to . . . be very clear here. I'm not going to consider
                             that.
                 The judgment of conviction reflects these findings.
                             We conclude that the district court did not abuse its discretion
                 when sentencing Sasser because it expressly stated that it would not
                 consider the information that it struck from the PSI. Its sentencing
                 decision was based on the violence involved in the charge. The record does
                 not reflect an abuse of discretion in the district court's decision to sentence
                 Sasser to prison for a term of 4 to 10 years, a sentence that is well within
                 the parameters provided by the relevant statute.         See NRS 200.380(2)
                 (providing that a person who is convicted of a robbery, "shall be punished
                 by imprisonment. . . for a minimum term of not less than 2 years and a
                 maximum term of not more than 15 years."). 9

                                                CONCLUSION
                             Although a defendant's PSI is only one of many different
                 considerations that the district court will evaluate when determining a
                 defendant's sentence, Stockmeier gives a defendant the right to object to




                       9 Further,it is important to note that the PSI is only one of many
                 different considerations that the district court uses when determining the
                 appropriate sentence for a defendant. For example, the district court
                 should also consider the arguments from each party during sentencing.


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                factual errors in the PSI, 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." 127 Nev. at 255 P.3d at 213
                (internal quotation marks omitted). The district court then has the
                discretion to amend the PSI itself, return it to P&P for amending, or
                amend it in the judgment of conviction. Accordingly, we affirm Sasser's
                judgment of conviction. 10



                                                      Gibbons

                         :
                We concurA

                            Vieku at             J.
                Pickering

                             A • 11   0

                Haria




                ..‘
                  i   =2LIS ACC
                         H                       J.
                Douglas




                                             ,   J.
                Saitta



                      thWe have considered the parties' remaining arguments and
                conclude they are without merit.



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