Can a court consider the facts of a case to determine a person’s eligibility for a treatment program?

Alcohol Treatment Program

Cassinelli (Dominic) v. State (Nev. Ct. App. – Aug. 27, 2015)

Cassinelli pleaded guilty to coercion and preventing or dissuading a person from testifying. The guilty plea resulted from allegations made by Cassinelli’s long-time girlfriend that he had sexually abused her. Cassinelli requested the district court to defer sentencing and assign him to a treatment program for alcohol abuse under NRS Chapter 458 rather than impose a term of incarceration.

The issue is whether NRS 458.300(1)(d) precludes eligibility for a drug or alcohol treatment program for the crime of coercion, where the acts underlying the crime fall within the definition of domestic violence, but the defendant had not pleaded guilty to a charged felony which constitutes domestic violence as set forth in NRS 33.018.

Cassinelli and the victim were involved in a romantic relationship from 2006 to 2012. They had two children together. During that time, Cassinelli was employed as a police officer in Winnemucca, Nevada.

At the preliminary hearing, testimony established that the pair engaged in sadomasochistic sex acts. The victim testified that she consented in the beginning of the relationship, but over time, the violence escalated to the point where she no longer wished to participate in sadomasochistic sex acts. Eventually the victim took the couple’s children and moved away. After the victim discovered that Cassinelli began seeing another woman, the victim reported to the Winnemucca Chief of Police that Cassinelli had sexually assaulted her. Although the victim had accused him of domestic violence in the past, Cassinelli had no convictions on his record.

The case was referred to the Nevada Division of Investigation. The victim reported specific incidents of sexual assault, involving handcuffing, binding, blindfolding with duct tape, and suspension from the ceiling with harnesses and straps. The victim also reported that Cassinelli threatened to kill her and pointed a loaded assault rifle and handgun at her while their children were present. Further, the victim advised investigators that the children witnessed Cassinelli sexually assaulting her. The victim provided investigators with photographs and an event journal to substantiate her claims.

Prosecutors charged Cassinelli with four counts of sexual assault; five counts of battery with intent to commit sexual assault or, in the alternative, domestic battery with strangulation; two counts of abuse, neglect, or endangerment of a child; two counts of misdemeanor domestic battery; and two counts of unlawful capture/distribution/display of image of private area of another.

The parties reached a plea agreement, wherein Cassinelli entered an Alford plea to coercion, a felony (Count I), and preventing or dissuading a person from testifying, a gross misdemeanor (Count II). The parties agreed Count I would not be treated as sexually motivated. Further, Count I contained no language in the information reflecting that the coercion constituted domestic violence. The State agreed it would not oppose treatment if Cassinelli was eligible for a program of treatment under Chapter 458. The parties were free to argue during sentencing regarding punishment with regard to Count II.

At sentencing, Cassinelli requested and the State recommended to the district court a program involving treatment under NRS 458.300 for Count I because it believed Cassinelli was eligible based upon his evaluation recommending alcohol treatment. The State then argued for the maximum sentence of 364 days in jail for Count II. Cassinelli had already spent 279 days in custody. As the final component of the combined hearing on the motion to elect treatment and sentencing, the victim addressed the court with her impact statement.

The district court acknowledged that Cassinelli was eligible for alcohol treatment under NRS 458.300 but stated “whether that’s to be given is another issue. That’s up to me as the judge.” The district court, however, did not subsequently specifically address Cassinelli’s request for a program of treatment under Chapter 458. Instead, the court sentenced Cassinelli to a prison term of 14-48 months for Count I, and a consecutive jail term of 364 days for Count II. The court suspended the sentence on Count II and imposed a three-year term of probation, to run consecutive to Count I.

Cassinelli appealed, claiming that his sentence was illegally imposed because the district court failed to adjudicate his motion for treatment pursuant to NRS 458.290 et seq., prior to imposing sentence. The parties filed a Stipulation for Order of Remand, in which the parties agreed that the record did not reveal that the district court had expressly adjudicated the motion for election of treatment prior to sentencing Cassinelli. Because the record revealed the district court had determined that Cassinelli was eligible for treatment and implicitly denied the motion, but the record was silent on the basis for the denial, the Nevada Supreme Court approved the parties’ stipulation and remanded the appeal to the district court for the limited purpose of entering an order explaining its ruling.

On remand, the district court entered a written Order Adjudicating Motion for Election of Treatment. The district court reconsidered its original position that Cassinelli was eligible for assignment to a program for alcohol treatment under NRS 458.300. The district court ruled that the acts underlying Cassinelli’s guilty plea constituted domestic violence as defined in NRS 33.018. Therefore, despite the fact Cassinelli pleaded guilty to coercion pursuant to NRS 207.190, the court found that Cassinelli was not eligible to elect a program of treatment pursuant to NRS 458.300(1)(d). The court further ruled that even if Cassinelli were eligible for treatment, Cassinelli was not likely to be rehabilitated through alcohol treatment and was not otherwise a good candidate for treatment, therefore his motion was denied. Cassinelli’s appealed his judgment of conviction and sentence.

On appeal, Cassinelli argued, among other issues, that the district court incorrectly determined that he was not eligible for assignment to a program of treatment for alcohol abuse under Chapter 458 and assuming he was eligible to elect a program of treatment under Chapter 458, the district court abused its discretion by denying his motion to elect treatment.

Cassinelli’s eligibility for alcohol treatment under Chapter 458

NRS 458.300(1)(d) provides that a person who is convicted of a crime that is an act which constitutes domestic violence as set forth in NRS 33.018 is not eligible for assignment to a program of treatment for the abuse of alcohol or drugs. Cassinelli argued that nothing in NRS 458.300(1) makes a person ineligible for treatment if convicted of the crime of coercion pursuant to NRS 207.190. The State countered that Cassinelli was ineligible under NRS 458.300(1)(d) because the underlying facts in this case constituted acts of domestic violence as defined by NRS 33.018(1)(c).

The Nevada Court of Appeals indicated that the statute plainly removed from eligibility a person who is convicted of a crime constituting domestic violence. Less clear to the Court was what the sentencing judge may consider when determining whether the crime is an act which constitutes domestic violence.

Cassinelli argued that a district court should only consider the crime for which the defendant is convicted of in determining eligibility. The State argued that when determining eligibility, the court may look at the underlying facts in each case.

The Court believed that both interpretations were reasonable. The Court explained that the language stating “[t]he crime is. . . [a] n act which constitutes domestic violence” may be construed as requiring that the actual crime the defendant is convicted of be delineated in the charging document as “constituting domestic violence” before a court may preclude eligibility under the statute. Yet, because subsection (d) uses the broader term “act,” while the remaining subsections provide that the disqualifying crime must itself be a “crime” or “offense,” an inference is raised that, in situations where the facts of the crime may fall within the definition of domestic violence, the sentencing judge may look at the acts underlying the crime in determining eligibility. Because the language of the statute supports two reasonable interpretations, the Court turned to the legislative history in determining the legislative intent.

The Court explained that NRS 458.300 was amended in 1975, although the language now found in subsection (1)(d) was not added until 1995 through Assembly Bill 84. A.B. 84 proposed several amendments to the statute, and the legislative history made it clear this bill was meant to expand, as opposed to limit, eligibility for drug and alcohol treatment programs. At several points, legislators referred to A.B. 84 as encompassing persons who had been charged with or convicted of domestic violence. However, it appeared to that Court that the Legislature wished to exclude defendants who pleaded guilty or were found guilty of battery constituting domestic violence because these defendants had access to other programs tailored to stop recidivism.

The Court noted that nothing in the legislative history indicated the Legislature intended for the sentencing judge to consider whether the underlying acts of a crime constitute domestic violence for the purpose of determining eligibility. It appeared to the Court that the opposite was true and the Legislature intended the eligibility determination to be based solely on the crime with which the defendant was charged or found guilty. The primary focus of A.B. 84 was increasing eligibility for drug and alcohol treatment programs. The Legislature recognized that plea bargaining within the criminal justice system is very common and some defendants would be able to plead down their charges and be eligible for a program of treatment.

The Court explained that prosecutors are granted the authority to consider each case individually and charge or negotiate pleas in most criminal cases. Further, prosecutors consider both the underlying facts of a crime and punishment sought in negotiating a charge when prosecuting a case within the system. The Legislature could have precluded plea bargains that would make an otherwise ineligible defendant eligible for a program of treatment under Chapter 458, however it did not do so.

The Court noted that the prosecutor plea bargained charges in this case to coercion without specifically delineating the coercion as constituting domestic violence. In the guilty plea agreement, the prosecutor affirmatively agreed not to oppose a program for alcohol treatment if an evaluation confirmed that Cassinelli was a good candidate for alcohol treatment pursuant to Chapter 458. At sentencing, based on the evaluation, the prosecutor affirmatively recommended an alcohol treatment program with probation on the coercion charge. Even the district court believed that Cassinelli was eligible for treatment under this statute. Thus, the prosecutor, the district court, and Cassinelli all believed he was eligible for alcohol treatment despite the fact that the underlying acts involved domestic violence in this case. Moreover, Cassinelli pleaded guilty to felony coercion. The information and the guilty plea agreement did not specifically delineate Cassinelli’s coercion as constituting domestic violence, which would have placed all parties on notice that Cassinelli was ineligible for alcohol treatment under Chapter 458.

Thus, the Court held that in considering eligibility under NRS 458.300(1)(d), the sentencing judge is limited to considering only the delineated crime that the defendant pleaded guilty to or was found guilty of, rather than considering whether the underlying acts involved in the crime constitute domestic violence. The Court believed that fairness and due process ensure that defendants know at the time they plead guilty whether they may be eligible for a treatment program pursuant to Chapter 458. The prosecutor has discretion to resolve a criminal charge, including whether to add language to an information or indictment alleging that the crime itself constitutes domestic violence. This effectively gives all criminal defendants notice at the time of pleading guilty whether they may be eligible for drug and alcohol treatment under NRS 458.300 and removes any ambiguity otherwise arising from requiring the district court to determine whether the underlying facts constitute or do not constitute domestic violence.

The Court explained that Cassinelli pleaded guilty to felony coercion. Cassinelli did not plead guilty to coercion constituting domestic violence. The State did not allege in the information that this coercion constituted domestic violence. During negotiations, and at sentencing, it was clear that Cassinelli, the State, and the district court, all believed Cassinelli’s crime did not preclude him from eligibility for alcohol treatment under Chapter 458. Accordingly, the Court found that the district court’s conclusion upon remand that NRS 458.300(1)(d) excluded Cassinelli from eligibility for alcohol treatment was error.

This conclusion did not end the Court’s inquiry, however, because in this case the district court alternatively denied Cassinelli’s request to be placed in a treatment program pursuant to Chapter 458 because the district court found that he was not likely to be rehabilitated through treatment or was not otherwise a good candidate for treatment. The Court noted that either basis, standing alone, was sufficient to deny treatment. The Court therefore considered whether the district court abused its discretion by denying Cassinelli’s request.

The denial of Cassinelli’s request for assignment to a treatment program

Cassinelli claimed that the district court abused its discretion by denying his request for assignment to a program of treatment on the basis that he was not likely to be rehabilitated through treatment or was not otherwise a good candidate for treatment. Cassinelli further asserted that the district court improperly distinguished between benefiting from a treatment program and being likely to be rehabilitated through a treatment program. Cassinelli also argued that the district court denied him entry into a treatment program because he entered an Alford plea and never admitted guilt. Therefore, the court’s decision to sentence him to prison was based on prejudice and preference.

NRS 458.320(2) provides that if the court, acting on the report or other relevant information, determines that the person is not an alcoholic or drug addict, is not likely to be rehabilitated through treatment or is otherwise not a good candidate for treatment, the person may be sentenced and the sentence executed. Although the district court determined that Cassinelli was an alcoholic, the Court indicated that it failed to clearly make separate findings regarding whether Cassinelli was likely to be rehabilitated or was not otherwise a good candidate. Nevertheless, the Court considered in turn the three aspects of the statute in light of the district court’s findings.

The district court’s determination that Cassinelli was an alcoholic

The Court explained that in making its determination under the statute, the district court may consider evaluations regarding whether the individual is an alcoholic or drug addict and is likely to be rehabilitated through treatment, as well as any other relevant information.

Here, the district court conducted a hearing regarding eligibility for treatment under NRS 458.300 simultaneously with Cassinelli’s sentencing. In determining whether Cassinelli was an alcoholic, the district court considered a facility evaluation recommending placement into an alcohol treatment program.

The Court further explained that the district court found, albeit reluctantly, that Cassinelli was an alcoholic, based upon the testimony at the hearing and the evaluations. The district court voiced concerns with this designation, citing some reservations arising from the fact that the evaluator was picked by defense counsel, and the evaluation contained language indicating to defense counsel that the evaluation could be revised in the manner defense counsel requested. Despite these concerns, the district court found Cassinelli to be an alcoholic. Based on the factual findings in the record, the Court found that the district court did not abuse its discretion by determining Cassinelli was an alcoholic.

The district court’s determination that Cassinelli would not likely be rehabilitated through a treatment program

The district court conducted a hearing regarding eligibility for treatment under NRS 458.300 simultaneously with Cassinelli’s sentencing. During that hearing, the Court believed that the district court first correctly distinguished between benefiting and being likely to be rehabilitated. The district court concluded, although Cassinelli may benefit from a program of treatment, that he would not likely be rehabilitated through such treatment. Most importantly, the district court noted:

Defendant demonstrated little ability to be rehabilitated. Throughout the sentencing, it appeared that the Defendant believed he should have special consideration because he is a third generation Nevadan and that his father had a good reputation as a long-time Reno police officer. At no time did the Defendant demonstrate any humility necessary for treatment.

Thus, the district court specifically made findings that in this case Cassinelli would not likely be rehabilitated from alcohol abuse if the court assigned Cassinelli to an alcohol treatment program.

The Court believed that the facts and evidence supported these findings. The Court explained that successful rehabilitation hinges largely on the defendant’s state of mind, particularly the defendant’s humility and willingness to take accountability for alcoholism. However, the presentence investigation report prepared by the Division of Parole and Probation noted that Cassinelli did not believe alcoholic beverages are problematic for him. This was contrary to what Cassinelli otherwise explained to evaluators for the program. Further, Cassinelli’s lack of humility during the hearing and sentencing strongly indicated that he was not willing to take accountability for his alcoholism, driving the conclusion that an alcohol treatment program would be ineffectual. And, Cassinelli’s criminal acts went far beyond the issue of alcohol abuse. Thus, the Court concluded that the district court did not abuse its discretion by determining that Cassinelli was not likely to be rehabilitated from the abuse of alcohol and refusing to assign him to an alcohol treatment program on this basis.

The district court’s determination that Cassinelli was not a good candidate for alcohol treatment

In addition to finding that Cassinelli was not likely to be rehabilitated by treatment, the district court determined that Cassinelli was not otherwise a good candidate for a program of treatment. During the hearing, the district court found Cassinelli’s testimony unbelievable and the victim’s testimony credible. The court’s order concluded that Cassinelli’s criminal acts with firearms involving sexual, verbal, physical, and child abuse were of the worst kind and, rather than stemming from alcoholism, were grounded in a man establishing improper control over a woman by the sexual and mental abuse that was prevalent in this case. Rather than granting Cassinelli’s request to elect a program of treatment, which would result in the dismissal of the coercion charge and ultimately seal his record, the district court, instead, opted to hold Cassinelli accountable for his crime by sentencing Cassinelli to prison.

The Court determined that this was not an abuse of discretion. The Court explained the record supported the district court’s conclusion that Cassinelli was not otherwise a good candidate for a dismissal with assignment to an alcohol treatment program. The victim’s impact statement reflected multiple instances of Cassinelli’s severe physical, sexual, and verbal abuse. Graphic photographs and an event journal corroborated the victim’s testimony. Cassinelli appeared to be unaffected by the harm his violent acts caused the couple’s children, who were also present during some of his crimes. And, because the facility report only concluded that Cassinelli was likely to benefit from such a program, the district court may have concluded that Cassinelli was not even eligible because NRS 458.320(1) requires that the facility determine that the person is likely to be rehabilitated.

The Court further noted that NRS 458.300 did not bar Cassinelli from a treatment program based on what he pleaded guilty to and because the district court found that he was an alcoholic. The Court explained that the statute and the legislative history make clear that the Nevada Legislature recognized that defendants who engage in domestic violence are not necessarily good candidates for alcohol treatment programs because other programs are available for these offenders. Thus, although Cassinelli was not charged with or convicted of a crime constituting domestic violence and was technically eligible for an alcohol treatment program, the Court believed that the actions underlying his crime involved acts of domestic violence, and thus, the district court did not abuse its discretion in determining that these facts weighed against assignment to a treatment program designed to rehabilitate alcoholism as Cassinelli was not otherwise a good candidate.

Therefore, the Court concluded that the district court properly distinguished between benefiting from an alcohol treatment program and being likely to be rehabilitated through an alcohol treatment program Further, the Court believed that the district court’s findings that Cassinelli was not likely to be rehabilitated because he lacked humility and did not take accountability for his alcoholism, and that he was not an otherwise good candidate for an alcohol treatment program because of his propensity for violence and disregard for his children’s well-being, were supported by the record. Accordingly, the Court concluded that the district court did not abuse its discretion in declining to assign Cassinelli to an alcohol treatment program.

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