THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Department No. III, and SEYMORE HUSNEY, Respondents
State v. Eighth Judicial District Court
Springer, J., concurs.
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Department No. III, and SEYMORE HUSNEY, Respondents.
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, THE HONORABLE JOSEPH S. PAVLIKOWSKI, District Judge, Department No. III, and SEYMORE HUSNEY, Respondents.
No. 13406
February 6, 1984
677 P.2d 1044
Brian McKay, Attorney General, Carson City; Robert J. Miller, District Attorney, Clark County, for Petitioner.
Wright, Shinehouse & Stewart, and Reid & A Iverson, Las Vegas, for Respondents.
OPINION
By the Court,
Zenoff, Sr. J.:
In this action, the State of Nevada seeks a writ of mandamus to compel the district court to reinstate a sentence originally imposed against respondent, Seymore Husney, after Husney . pleaded guilty to one count of an infamous crime against nature, NRS 201.190. The State argues that the district court's modification of sentence after Husney had begun to serve that sentence violated applicable Nevada law. Cf. NRS 176.185(4). We conclude, however, that under the circumstances of this case the district court was within its jurisdiction in so modifying the sentence. Accordingly, we decline to grant the State's plea for extraordinary relief.
In order to address the State's petition, it is essential that we establish the procedural posture of this case. In October, 1979, respondent Seymore Husney entered a plea of guilty pursuant to a plea bargain to one count of an infamous crime against nature, NRS 201.190. The indictment under which Husney was charged in essence alleged that in May, 1977, Husney had allowed a female person under the age of 18 years to perform fellatio upon him.
At the time of sentencing, Husney was advised by the court that the potential maximum sentence which he might receive was life imprisonment with the possibility of parole. No evidentiary hearing was conducted at sentencing; instead, the only evidentiary material before the district court concerning the charged offense was contained in a 192-page grand jury transcript. This transcript contained testimony previously elicited from the victims, girls between the ages of 11 and 15 years at the time the charged events occurred, detailing the alleged involvement of several men, including Husney, in sexual misconduct. The lengthy transcript was compiled during several separate sessions of the grand jury, during which a number of witnesses testified. As this was a grand jury proceeding, Husney was neither present nor afforded an opportunity to cross-examine witnesses.
In addition to the grand jury transcript, the district court had before it a presentence report prepared by the Department of Parole and Probation, and a psychiatric evaluation prepared by Dr. J. A. Jurasky, director of the Psychiatric and Psychological Center located in Las Vegas. Both the presentence report and the psychiatric evaluation concluded that Husney's deep remorse, absence of any prior criminal record, and previously irreproachable position in the community made Husney a suitable candidate for probation. In the psychiatric evaluation Dr. Jurasky also noted that Husney was "not by nature or personality an immoral person or one who normally takes advantage of or preys upon others." Dr. Jurasky emphasized that Husney had suffered "enormous" pain and humiliation as a result of his actions, and concluded that he would "not constitute a menace to the health, safety, or morals of others."
Despite the favorable recommendations contained in the presentence report and psychiatric evaluation, Husney was denied probation. After argument by counsel for the State and for Husney, the district court judge stated that he had read the grand jury transcript and had come to the conclusion that Husney had committed "a great wrong." Husney was then sentenced to life imprisonment with the possibility of parole.
The judgment of conviction was subsequently signed by the district court judge, filed in the clerk's office, and Husney began serving his sentence at the Nevada State Prison. Shortly thereafter, Husney filed a timely appeal with this court. At the same time, however, Husney filed a motion in the district court seeking a modification and reduction of his sentence. In this motion, Husney contended that the district court judge had misapprehended or had been misinformed as to relevant information presented at the sentencing hearing, and asked that his sentence be modified to allow release on probation.
After litigation on procedural issues which do not require discussion here, the district court ruled on Husney's motion. Reviewing the record, the district court concluded that it had indeed misapprehended or had been misinformed on information presented at the sentencing hearing. The district court therefore granted Husney's motion, vacated the original sentence, reinstated the sentence of life with the possibility of parole, and then suspended the sentence and placed Husney on probation for a period not to exceed five years. This probation was conditioned upon Husney's incarceration in the county jail for six months; however, the court found that this six-month term had been satisfied by the period Husney had already served in the Nevada State Prison. Accordingly, Husney was released from prison in July, 1980; the record indicates that Husney has cooperated with probation officials and has remained at liberty on probation for over three years during the pendency of this proceeding.
JURISDICTIONAL CONSIDERATIONS
Having established the procedural posture of this case, we turn to an analysis of the State's petition. The State petitions this court for an extraordinary writ of mandamus to compel the district court to vacate its order suspending Husney's sentence and to reinstate the original sentence of life imprisonment with the possibility of parole. The State argues that under the established law of this jurisdiction, once Husney began to serve his sentence, the district court was without authority to suspend or modify that sentence. Given the particular factual setting presented in this case, we disagree.
The State's position is based in large part upon a perceived incongruity in Nevada law pertaining to sentencing. The State argues that a sentencing court is prohibited by statute from suspending a sentence once a defendant has actually begun to serve that sentence. The State's position is based in part upon NRS 176.185(4), which provides, in pertinent part: "The court shall not suspend the execution of a sentence of imprisonment after the defendant has begun to serve it." The State maintains that this language establishes that once a defendant has commenced serving his sentence, the district court is totally without jurisdiction to suspend or modify it. See, e.g., Miller v. Hayes, 95 Nev. 927, 604 P.2d 117 (1979); State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969).
This court has recognized, however, that a sentencing court may under certain circumstances entertain a motion to vacate or modify its orders and judgments. In the seminal case of Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967), we addressed the issue of whether a trial court has the power to set aside a judgment of conviction after a plea of guilty and commencement of sentence. We held:
We deem the procedural label to be of little importance. The fact remains that courts which make a mistake in rendering a judgment which works to the extreme detriment of the defendant will not allow it to stand uncorrected. In a situation such as this, where, as discussed below, the court has inherent power to reconsider a judgment for good cause shown, we hold that such an issue may be raised by a motion to vacate judgment. . . .
83 Nev. at 301 (emphasis added); see also State v. District Court, 85 Nev. at 488. Warden v. Peters has never been overruled, and has been cited in several recent cases. See State v. Clark, 90 Nev. 144, 146, 520 P.2d 1361 (1974); Miller v. Hayes, 95 Nev. at 931; Sheriff v. Blasko, 98 Nev. 327, 647 P.2d 371 (1982). Accordingly, despite the State's reliance on NRS 176.185(4), it is clear that when the sentencing court "makes a mistake in rendering a judgment which works to the extreme detriment of the defendant," the district court has jurisdiction to vacate or modify the suspect sentence or judgment.
The district court's inherent authority to correct a judgment or sentence founded on mistake is in accord with the constitutional considerations underlying the sentencing process. The United States Supreme Court has expressly held that where a defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record, "[the] result, whether caused by carelessness or design, is inconsistent with due process of law." Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252 (1948). Further, the cases clearly establish that constitutionally violative "materially untrue assumptions" concerning a criminal record may arise either as a result of a sentencing judge's correct perception of inaccurate or false information, or a sentencing judge's incorrect perception or misapprehension of otherwise accurate or true information. See United States v. Myers, 374 F.2d 707, 710-712 (3rd Cir. 1967); United States v. Malcolm, 432 F.2d 809, 816 (2nd Cir. 1970). The latter situation is illustrated by Crowe v. State, 194 N.W.2d 234 (S.D. 1972), in which the sentencing judge misread an otherwise accurate F.B.I. report and sentenced the defendant while under the mistaken assumption that he had suffered four rape convictions. In fact, the F.B.I. report clearly indicated that the defendant had suffered only one conviction .for rape. The South Dakota Supreme Court affirmed the conviction but remanded the case for resentencing, finding the defendant's due process rights had been violated as the result of the sentencing judge's subjective misapprehension of the report. Id. at 246; see also United States v. Myers, 374 F.2d at 710-712 (sentencing judge misread criminal record and sentenced defendant while under mistaken assumption he had suffered three prior convictions for strong arm robbery); United States v. Weston, 448 F.2d 626 (9th Cir. 1971) (sentencing judge's reliance upon presentence investigation report predicated on limited factual basis amounts to due process violation).
In light of this authority, it is clear that a sentencing judge's misapprehension of a defendant's criminal record may result in a violation of the defendant's right to due process of law. When this potential due process violation is considered in conjunction with the district court's inherent authority to correct sentences founded on mistakes which work to the externe detriment of the defendant, it is equally clear that the district court has authority to correct or modify a sentence which is the result of the sentencing judge's misapprehension of a defendant's criminal record.
It must be noted, however, that not every mistake or error which occurs during sentencing gives rise to a due process violation. The cases implicitly recognize this point; a due process violation arises only when the errors result in "materially untrue" assumptions about a defendant's record. See Townsend v. Burke, 334 U.S. at 741. This parallels the basis of the district court's inherent authority to correct sentences based on mistake; the court has jurisdiction to vacate or modify the defective sentence when a mistake "works to the extreme detriment of the defendant." Warden v. Peters, 83 Nev. at 301. We believe that these considerations represent an appropriate jurisdictional limit to the correction or modification of a defective sentence by a district court. Accordingly, we hold that if a sentencing court pronounces sentence within statutory limits, the court will have jurisdiction to modify, suspend or otherwise correct that sentence if it is based upon materially untrue assumptions or mistakes which work to the extreme detriment of the defendant.
MATERIALLY UNTRUE FOUNDATION
Having established the jurisdictional threshold of the district court's authority to correct or modify a sentence — that the sentence was based upon a materially untrue foundation — we turn to the second issue presented in this case: Did the district court err in finding that respondent Husney's sentence of life imprisonment with the possibility of parole had been based on a materially untrue foundation?
In addressing this question, it is important to emphasize that the jurisdictionally required "materially untrue foundation" can result either from the district court's reliance upon untrue information, or from the court's subjective misapprehension of otherwise true information. In either case, if the resulting sentence foundation is materially untrue, the court has the power to correct or modify the sentence. Given this analytic framework, we now examine the record to determine if the district court correctly found that the sentence imposed in the instant case was based on a materially untrue foundation, either because the district court relied upon untrue information or misapprehended true information.
We initially note that the district court's decision may be read as indicating that the modification of sentence was based both upon a finding that the court had been presented with untrue information during the sentencing hearing, and on a finding that the court had subjectively misapprehended otherwise true material. In its oral decision, the court addressed specific points upon which the judge felt he had been misinformed, and then concluded that, "I think there was a misstatement of facts before the court. Therefore, I think that under the mistaken belief of facts, the court has jurisdiction to entertain this motion to modify sentence." (Emphasis added.) The court's written order modifying sentence states that "the Court, at the time of imposition of sentence . . . was proceeding under mistake of fact that [Husney] had sexual relations with [name deleted], then eleven years of age and other possible victims and was further mistaken as to factual matters as more fully set forth in the Court's oral decision . . . ." (Emphasis added.)
The district court's decision to modify sentence thus was evidently based in part on the court's conclusion that it had been misled by the prosecutor at the time of sentencing because some of the information and argument presented by the prosecutor was untrue. In its oral decision, the court stated, inter alia, that it had been unintentionally misled by the prosecutor's statements into believing that Husney was "really involved" in illicit activities with a Don Lucas, the individual responsible for the initial sexual corruption and procurement of the young girls involved. The court also found that, despite the representations of the prosecutor, an eleven-year-old girl was not "really involved" with Husney, as Husney had not taken nude photographs of the girl or been present when such photographs were taken by others. Further, the court found that there was no evidence that Husney had supplied "drugs" to the victims.
If the court was misled at sentencing into believing that Husney was closely associated with Lucas in his procuring activities, that Husney had sexual relations with an eleven-year-old girl, and that Husney had supplied drugs to the victims, it is difficult to envision a clearer example of a materially untrue sentence foundation. Yet when the transcript of the sentencing hearing is compared with the grand jury transcript, it appears that the grand jury testimony does not support the prosecutor's argument and representations to the sentencing judge.
For example, at sentencing the prosecutor did inaccurately cite the degree of Husney's involvement with Lucas. The grand jury transcript indicates that although Husney was a paying customer and to a degree an associate of Lucas, there was no evidence that Husney was involved in the initial procurement^ or economic exploitation of the victims. At sentencing the prosecutor nonetheless vehemently argued that Husney and Lucas were virtually partners and equally culpable — "almost a team in this endeavor" — and that, although others were involved, "Husney stands alone with Mr. Don Lucas and apart" from others involved in the case. This hyperbolic characterization is simply not supported by the record. While Husney's conduct is certainly indefensible, the district court would have been within its discretion in distinguishing between the lesser responsibility of a patron such as Husney and the greater culpability of an initiator and procurer who exploited the victims for economic gain.
The court also found that Husney was not "really involved" with the eleven-year-old girl, as Husney had not taken nude photographs of the girl nor was present when nude photographs of the girl were taken by others. Husney's lack of involvement with the eleven-year-old is supported by the grand jury transcript. However, a fair reading of the prosecutor's comments at sentencing would indicate that the prosecutor did allege that Husney had taken nude photographs of the eleven-year-old girl. Again, this allegation is simply not supported by any evidence before the sentencing court.
The district court further found that the prosecutor unintentionally misrepresented to the court that Husney had dispensed drugs to the victims. The district court is correct. Although the grand jury transcript contained testimony to the effect that on two occasions Husney had served two of the victims a mixture of vodka and orange juice, there was no evidence that Husney had supplied the victims with any drugs. The prosecutor, however, argued that "[i]n the sexual scenario which is the subject matter of the indictment before the Court, the same thing occurred preceding the sexual acts, photographs, qualudes [sic] and vodka." The prosecutor thus intimated to the court that Husney had furnished controlled pharmaceuticals to the victims. As with the other two allegations, the prosecutor's comments are totally without evidentiary support.
Given these misrepresentations, it is clear that the record supports the district court's evident determination that Husney's sentence rested on a foundation which was materially untrue. In the alternative, the record equally supports the court's finding that it had subjectively misapprehended that Husney had sexual relations with the eleven-year-old girl, and had supplied drugs to the eleven-year-old girl and other victims. With this subjective misapprehension forming a part of the foundation of respondent's sentence, the court was clearly justified in determining that the sentence rested on a materially untrue foundation. Although Husney's guilty plea was based on sexual misconduct with a fourteen-year-old girl, as previously noted there is absolutely no basis in the record which would support an inference that Husney also had sexual relations with the younger girl. Further, although the grand jury transcript indicates that several of the young girls involved were supplied drugs by other participants — in the form of quaaludes — there is absolutely no indication that Husney supplied quaaludes to the eleven-year-old or any other of the girls. The district court's misapprehension as to these facts would thus clearly create a sentence foundation which was materially untrue. Given this defective foundation, the court would have jurisdiction to correct the defective sentence.
SUMMAR Y
We wish to make clear that we in no way question the district court's conclusion that the misrepresentations made by the prosecutor during sentencing were unintentional. Nonetheless, misrepresentations did occur during sentencing. These misrepresentations, whether considered in conjunction with the subjective misapprehensions of the district court judge or considered independently, clearly created a materially untrue foundation upon which the sentence imposed in this case rested.
In the instant case we are not presented with the situation facing the court in State v. Clark, 90 Nev. 144, 520 P.2d 1361 (1974), where the sentencing court, in a post-conviction relief proceeding, improperly attempted to "correct" a sentence on the grounds that the sentencing judge had "misunderstood" applicable parole policies. In fact, in Clark the experienced trial court judge knew that after sentencing the matter of parole was in the hands of the parole board, subject to the rules and discretion of that body, and that release was subject to the parole board's approval. Id. at 146. Thus, the majority of the court concluded that at the time of sentencing the district court judge neither subjectively misunderstood nor was misinformed as to the possibilities of parole.
In contrast, in the instant case the record supports the district court's determination that the court was unintentionally misinformed by the prosecutor at sentencing and misapprehended some of the information presented. The record also supports the district court's implicit finding that these mistakes resulted in a materially untrue sentence foundation which worked to the extreme detriment of the defendant. On appeal, every presumption is in favor of the propriety of the trial court's action in the absence of a showing of error. Johnson v. Johnson, 87 Nev. 244, 248, 484 P.2d 1072 (1971). Given the extremely favorable presentencing and physchiatric reports, Husney's total lack of a prior criminal record, his position in the community, and the actual nature of his involvement with Lucas, we are not prepared to overturn the district court judge's determination that justice demanded the defective sentence he imposed be corrected.
Accordingly, we deny the petition for extraordinary relief.
Springer, J., concurs.
Senior Justice David Zenoff was assigned to participate in the decision of this matter pursuant to the Nevada Constitution, art. 6, § 19(l)(a) and 19(l)(c), and SCR 10. Chief Justice Noel E. Manoukian voluntarily disqualified himself from the decision of this matter, and the Governor appointed the Honorable James Brennan, district judge, to sit in his stead. Nev. Const., art. 6, § 4.
At the time, NRS 201.190 provided, in pertinent part:
[E]very person of full age who commits the infamous crime against nature shall be punished: (a) . . . where such offense is committed upon the person of one who is under the age of 18 years, by imprisonment in the state prison for life with possibility of parole, eligibility for which begins . . . when a minimum of 5 years has been served.
See 1977 Nev. Stats. 1632. This section has subsequently been amended. See NRS 201.190.
During the relevant period, this language was contained in NRS 176.185(3). See 1981 Nev. Stats. 369. As the cited language is virtually identical to the previous codification, for convenience we will refer to the more recent enactment.
In Warden v. Peters, the defendant moved to set aside a guilty plea to grand larceny on the grounds there had been no asportation of the subject property. The sentencing court set aside the judgment of conviction, allowed the defendant to withdraw his guilty plea, immediately accepted a guilty plea to attempted grand larceny, and then fixed a new sentence to run concurrently with a previously imposed burglary sentence. 83 Nev. at 300-301. In upholding the action of the sentencing court, we explicitly held that when a mistake is made in rendering a judgment, the sentencing court has the inherent power to reconsider that judgment, and if the judgment is void the sentence automatically fails. Id. at 302.
It has been suggested that we might restrict the principle articulated in Peters to the narrow facts of that case, so that absent a vacation of judgment, the district court may not vacate or suspend a defendant's sentence. The significance of such a restriction should be obvious; as Husney's motion did not challenge the validity of the judgment obtained through the guilty plea, if Peters were restricted as suggested that case would not provide the district court with authority to correct Husney's sentence. We believe, however, that Peters cannot be legitimately restricted in the manner suggested. In Peters we expressly noted that "[t]he trial court has inherent jurisdiction to vacate or modify its orders and judgments . . . ," and "]w]hen an improper sentence is the sole basis of the complaint, no vacation of conviction or adjudication is necessary since justice may be done by correction of the sentence. ." Further, in a due process context there appears to be no legitimate distinction between a constitutionally defective sentence and a constitutionally defective judgment. This is implicitly recognized in Nevada's post-conviction relief statutes, which provide that the jurisdiction of the district court in post-conviction relief hearings extends to those cases in which the court finds that there has been a specific denial of the petitioner's constitutional rights "with respect to his conviction or sentence." NRS 177.320 (emphasis added).
During oral argument, the State conceded that the district court would have jurisdiction to correct a sentence which was based on a materially untrue foundation. The following colloquy occurred:
The Court (Springer, J.): "Do you believe that mistake of fact could ever justify a trial judge in changing a sentence after an imposed sentence had been started?"
The State (Mr. Koot): "Not simply a mistake of fact. I would choose the wording of the cases, 'materially and substantial mistake of fact,' or in the working of the Townsend court, United States Supreme Court, I would choose the wording, 'extensively and materially false.' "
The Court (Springer, J.): "So in this case, if Judge Pavlikowski sentenced on the basis of an assumption which was materially untrue, you would concede he would then at least have the power to change the sentence?"
The State (Mr. Koot): "After the proper certification, which was finally done in this case, yes, 1 believe so, if it was extensively and materially false."
Lucas apparently would approach young girls and represent himself as a professional photographer. If the victim was receptive to his advances, Lucas would offer to employ her as a "model." In the course of photography sessions, Lucas would ply his victims with quaaludes, a controlled substance known to weaken an individual's inhibitions, and attempt to involve the victim in sexual "scenarios." Lucas was arrested for these illicit activities, and subsequently convicted of forcible sexual assault and related charges. See Lucas v. State, 96 Nev. 428, 610 P.2d 727 (1980).
Although it is somewhat collateral to the issues presented in this petition, the record reveals that several other individuals were arrested and prosecuted as a result of their involvement with Lucas and their utilization of his services as a procurer of underage girls. The record appears to indicate that these similarly-situated defendants pleaded guilty to charges of an infamous crime against nature, as did Husney, but were sentenced to probation rather than life imprisonment with the possibility of parole. In this regard, we note that just before correcting Husney's sentence, the district court judge stated that he had read the transcripts of these other cases and discussed one case with the sentencing judge.
Further, both at sentencing and at oral argument on this matter, the State continually emphasized that Husney and Lucas were virtual "partners," as if to justify Husney's sentence on the grounds that Lucas had also received a sentence of life with the possibility of parole. In fact, the State's implicit justification is totally without foundation; Lucas was convicted of forcible sexual assault and related charges. See Lucas v. State, 96 Nev. at 430. Any comparison between Lucas and Husney is suspect on additional grounds; whereas Husney presented an extremely favorable psychiatric report detailing his anguish, humiliation and deep remorse, the psychiatrist examining Lucas concluded that he was suffering from a character disorder. Id. at 433.
However, Justices Mowbray and Batjer, believing that the district court's misapprehension of the parole policies amounted to a sufficient mistake of fact, dissented. 90 Nev. at 147. Justices Mowbray and Batjer not only recognized the propriety of a district court correcting a sentence entered pursuant to a mistake of fact, under the doctrine of Warden v. Peters, supra; they also found the case factually akin to Crow v. State, supra, wherein the sentencing judge had misread an accurate F.B.I. report. 90 Nev. at 148.
We additionally note that there are further considerations which arguably mandate that we deny the State the relief requested. Although mandamus in some circumstances is a proper remedy to compel the vacation of a judgment which unlawfully suspends the execution of a sentence in a criminal case (see State v. District Court, 85 Nev. 485, 487, 457 P.2d 217 (1969)), we do not believe that mandamus would necessarily have been appropriate in this case given its procedural history. As previously noted, respondent Husney originally appealed his conviction and sentence; for jurisdictional reasons this appeal was remanded to the district court so the court would have jurisdiction to address the motion to modify sentence. Thereupon, if dissatisfied, the State's appropriate remedy was to appeal. See State v. Clark, 90 Nev. 144.
Further, were we to pass favorably upon the State's petition, and deal with this matter in the manner suggested, this court would in effect be ruling that the testimony contained in the grand jury transcript and presented at sentencing was true, and that the sentence imposed was the only sentence conceivable under the circumstances. Such a ruling would effectively eliminate at least two of the issues Husney might legitimately present on appeal: (1) that his sentence, based in part on the grand jury testimony of minors who were not subject to cross-examination, was based on impalpable or highly suspect evidence (cf. Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976)), and (2) that his sentence of life imprisonment with the possibility of parole was, given the facts of this case, disproportionate. Cf. Solem v. Helm, 51 U.S.L.W. 5019 (U.S. June 28, 1983). However, as we believe the district court did not exceed its jurisdiction in correcting respondent's sentence, we need not address this issue.