                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                RYAN LOPAKA DELAPINIA,                                  No. 68339
                Appellant,
                vs.
                THE STATE OF NEVADA,                                       FILED
                Respondent.
                                                                            JUN 1 7 2016




                                    ORDER AFFIRMING IN PART,
                                REVERSING IN PART AND REMANDING
                            This is an appeal from a judgment of conviction, pursuant to a
                guilty plea, of one count each of sexual assault with the use of a deadly
                weapon, first-degree kidnapping with the use of a deadly weapon,
                burglary, and robbery with the use of a deadly weapon. Eighth Judicial
                District Court, Clark County; Eric Johnson, Judge. The district court
                sentenced appellant Ryan Lopaka Delapinia to a total aggregate sentence
                of life in prison with the possibility of parole after 43 years. Delapinia
                challenges the sentence imposed by the district court on two grounds.'



                       "Delapinia asserts that cumulative errors "in this trial violated [his]
                right to a fair trial." There was no trial in this case; Delapinia pleaded
                guilty. So there are no trial errors to cumulate for purposes of reversing
                the judgment of conviction. And, there are not multiple sentencing errors
                to cumulate. We therefore reject Delapinia's cumulative-error claim.




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                                First, Delapinia argues that he is entitled to a new sentencing
                    hearing on the weapon enhancements because the district court failed to
                    articulate separate and specific findings to support the sentences imposed
                    for those enhancements, as required by NRS 193.165(1) and Mendoza-
                    Lobos v. State, 125 Nev. 634, 218 P.3d 501 (2009). Because Delapinia
                    failed to object below, we review for plain error, meaning that Delapinia
                    must show that the error is plain from the record and affected his
                    "substantial rights, by causing 'actual prejudice or a miscarriage of
                    justice."   Mendoza-Lobos, 125 Nev. at 644, 218 P.3d at 507 (quoting
                    Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (quoting
                    Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003))). Although the
                    record shows that the district court heard argument, testimony, and
                    evidence relevant to the factors set forth in• NRS 193.165(1)(a)-(e), the
                    record clearly shows that the district court did not comply with this court's
                    directive in Mendoza-Lobos to "articulate findings on the record, for each
                    enumerated factor. .. [and] for each enhancement," 125 Nev. at 644-45,
                    218 P.3d at 508. Having reviewed the record and the parties' arguments,
                    we cannot say that the district court's failure to make the required
                    findings on the record had no bearing on its sentencing decision as to the
                    weapon enhancements.       Cf id. at 644, 218 P.3d at 508. We therefore
                    conclude that the district court's omission prejudiced Delapinia with
                    respect to the sentences on the weapon enhancements.
                                 Second, Delapinia argues that the sentences constitute cruel
                    and unusual punishment in violation of the Nevada Constitution and the
                    United States Constitution. Because we reverse and remand as to the
                    sentences for the weapon enhancements, we consider this argument only



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                in relation to the other sentences. Regardless of its severity, a sentence
                that is within the statutory limits is not "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 Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22
                (1979)); see also Harmelin Ti. Michigan, 501 U.S. 957, 1000-01 (1991)
                (plurality opinion) (explaining that Eighth Amendment does not require
                strict proportionality between crime and sentence; it forbids only an
                extreme sentence that is grossly disproportionate to the crime). Delapinia
                does not allege that the sentencing statutes are unconstitutional, and the
                sentences imposed in this case are within the parameters provided by the
                relevant statutes, NRS 200.320(2) (providing for sentence of life with the
                possibility of parole after 5 years or definite term of 5-15 years for first-
                degree kidnapping with no substantial bodily harm to the victim); NRS
                200.366(2)(b) (providing for sentence of life with the possibility of parole
                after 10 years for sexual assault with no substantial bodily harm to the
                victim); NRS 200.380(2) (providing for sentence of 2 to 15 years for
                robbery); NRS 205.060(2) (providing for sentence of 1 to 10 years for
                burglary). Considering the circumstances of the crimes, particularly that
                Delapinia kidnapped a 22-year-old woman who was out for a run, robbed
                her, forced her to commit fellatio on him, and threatened her while
                brandishing a weapon, we are not convinced that the sentences imposed
                are so grossly disproportionate to those crimes as to constitute cruel and
                unusual punishment.




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                               Having considered Delapinia's claims and concluded that he is
                   entitled to relief on the sentences for the weapon enhancements, we
                               ORDER the judgment of conviction AFFIRMED IN PART
                   AND REVERSED IN PART AND REMAND this matter to the district
                   court for proceedings consistent with this order. 2


                                                                                              J.



                                                                   a
                                                                Douglas


                                                                         kilarzetv j.
                                                                Cherry


                   GIBBONS, J., concurring and dissenting:
                               I agree that the cruel-and-unusual-punishment challenge
                   lacks merit. I disagree, however, that the district court's failure to
                   articulate findings for the factors relevant to the weapon enhancement
                   sentences warrants reversal. In my opinion the omission did not cause
                   any prejudice or a miscarriage of justice. I therefore would affirm the
                   judgment of conviction.



                                                                Gibbons




                         2We further direct that this matter be assigned to a different district
                   court judge for resentencing on the weapon enhancements.




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                cc:   Chief Judge, Eighth Judicial District Court
                      Hon. Eric Johnson, District Judge
                      Eric G. Jorgenson
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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