Opinion
No. 6483
February 23, 1972
Appeal from Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
H. Dale Murphy, Washoe County Public Defender, for Appellant.
Robert List, Attorney General, of Carson City; Robert Rose, District Attorney, and Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
OPINION
April 22, 1968, appellant withdrew his prior "not guilty" plea, and pleaded guilty to an information charging robbery. April 23, he withdrew his "not guilty" plea and pleaded guilty to an information concerning a later incident, charging attempted robbery and assault with a deadly weapon. Simultaneously the State, obviously as the result of plea bargaining, moved for dismissal of habitual criminal charges alleging prior felonies in enhancement of penalty. The court dismissed the habitual charges, and subsequently imposed "consecutive" sentences of 10, 3 and 6 years on the principal charges, expressing belief and intent that appellant would be allowed to earn early parole consideration. Counsel for the State at no time suggested that the court misunderstood the effect contemplated by dismissal of the "habitual" charges. Prison authorities thereafter advised appellant that he is ineligible for parole; he then sought post-conviction relief, which a different judge of the district court denied; hence, this appeal.
When sentencing appellant, Judge Craven stated: "Now, the sentences I intend to impose will be consecutive; but, as a practical matter, it isn't going to make any difference because it is going to be entirely up to the parole board. . . ." While a psychiatric evaluation tendered as part of the pre-sentence report suggested appellant be allowed to earn early parole consideration, Judge Craven clearly chose to impose consecutive rather than concurrent sentences, to vest the parole board with maximum future control.
1. Appellant contends he is entitled to plead anew, simply because the court accepted his pleas without requisite inquiry to establish them intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238 (1969); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). This contention has no merit, for appellant's pleas were accepted before the U.S. Supreme Court announced the doctrine of Boykin, which in our view is not retroactive. Mathis v. Warden, 86 Nev. 439, 471 P.2d 233
(1970); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970).
2. Appellant further seeks the right to re-plead, or to be resentenced, because the sentencing judge supposedly was unaware that under NRS 176.035 an inmate serving the first of two or more consecutive sentences cannot be paroled from it to begin serving a subsequent sentence. In support of the premise that NRS 176.035 precludes such paroles, appellant cites an opinion of our Attorney General (Op. Att'y Gen. No. 578, 1969); however, we believe Judge Craven, rather than the Attorney General's deputy, has correctly construed NRS 176.035(2), which merely recites rules to determine the intent of the sentencing judge, and does not limit his power or that of the parole board.
"NRS 176.035 Conviction of two or more offenses; concurrent and consecutive sentences.
3. Appellant further seeks the right to re-plead, or to be resentenced, because the court assertedly was unaware NRS 213.110 precludes parole to persons who have "previously been more than three times convicted of a felony and served a term in a penal institution." Again, we disagree with appellant's premise. By the express terms of NRS 213.110, only paroles outside the prison's buildings and enclosures are precluded to persons stigmatized by that statute. The sentencing judge apparently recognized that appellant might properly be paroled from one sentence to another, so long as he remained within the prison, and his advice to petitioner in this regard was correct.
Petitioner may, of course, challenge the constitutional validity of his prior convictions as suggested in Eisentrager v. State Bd. Parole, 85 Nev. 672, 462 P.2d 40 (1969), and thereby seek eligibility for outside parole.
We affirm the order denying appellant post-conviction relief, with the expectation that appellant will be allowed parole consideration in conformity with law, as the sentencing court apparently contemplated.
In its Answering Brief, the State says it "would concur" in our resolving this case by assuming the sentencing judge was ignorant of NRS 213.110, and adjusting appellant's sentences to run concurrently. Respect for the sentencing court, and for its determination that consecutive sentences will best enable the parole board to protect the public, impels us to decide the court correctly interpreted the intended effect of the dismissals sought by the State.
ZENOFF, C.J., and BATJER, MOWBRAY, and THOMPSON, JJ., concur.