Pitmon v. State (Nev. Ct. App. – Mar. 26, 2015)

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 a district court to order that the sentence for the second offense be imposed either concurrently or consecutively to the first sentence.

The issue is whether 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.

Pitmon was originally charged in three separate cases with multiple counts of attempted lewdness with a child under the age of 14. 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.

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 year’ imprisonment. Two days later, he appeared for sentencing in his second case and again received the maximum possible sentence. Additionally, the district judge in his second case ordered that the sentence be served consecutively to the sentence previously imposed in the first case.

Pitmon appealed arguing that NRS 176.035(1) fails to comply with the Due Process Clause because an ordinary citizen facing sentencing for different offenses cannot reasonably understand or anticipate whether the sentences are likely to be imposed concurrently or consecutively. Pitmon also contended 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.

Citing a Ninth Circuit case, the Nevada Court of Appeals believed 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 the legislature did not authorize the imposition of consecutive sentences, the 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.”). Thus, the Court concluded that NRS 176.035(1) is not unconstitutionally vague in violation of the Due Process Clause of the U.S. and Nevada Constitutions.

To the extent that Pitmon asserted that his sentences were unconstitutional as applied to him, the Court concluded that the sentences imposed were not unreasonably disproportionate to the offenses to which Ptimon pleaded guilty, even though he received the maximum sentences.