Opinion
84603-COA
11-29-2022
BRANDON LEE GALLAGHER, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
GIBBONS, C.J.
Brandon Lee Gallagher appeals from a judgment of conviction, entered pursuant to a guilty plea, of felony reckless driving and performance of an act in reckless disregard of persons or property resulting in substantial bodily harm. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
Gallagher argues the district court abused its discretion and violated his due process rights by failing to suspend his sentencing hearing and order a competency evaluation. Gallagher contends that he had a psychotic episode during the hearing, that the evidence demonstrates he did not understand the nature of the charges he pleaded guilty to or the nature and purpose of the proceedings, and that he was unable to assist counsel in his defense.
A criminal defendant cannot be tried or sentenced while incompetent. United States v. Dreyer, 705 F.3d 951, 961 (9th Cir. 2013); Goad v. State, 137 Nev. 167, 173, 488 P.3d 646, 654 (Ct. App. 2021); see also NRS 178.400(1). "A defendant is competent if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and [if] he has a rational as well as factual understanding of the proceedings against him." Goad, 137 Nev. at 173, 488 P.3d at 654 (internal quotation marks omitted); see also NRS 178.400(2). A defendant's "ability to participate or assist his counsel must be evaluated in light of the type of participation required." Dreyer, 705 F.3d at 961. "At sentencing, the test [of competency] is whether the defendant is able to understand the nature of the proceedings and participate intelligently to the extent participation is called for." Id. (alteration in original) (internal quotation marks omitted).
During his arraignment, the district court asked Gallagher if anyone had ever suggested that he be treated for "mental health or emotional conditions," to which Gallagher responded in the affirmative. Gallagher then stated this did not affect his ability to understand the proceedings. At the sentencing hearing, Gallagher made a statement to the court in which he acknowledged that he was under the influence of methamphetamine at the time of the accident, that his fiancee was injured in the accident, and that he was the only one taking care of his fiancee as she recovered from her injuries. Gallagher also asked if his fiancee could speak on his behalf.
Defense counsel requested that Gallagher be sentenced to probation. At the end of the hearing, after the district court had imposed prison terms on each count and while the district court was stating Gallagher's aggregate term of imprisonment, Gallagher became disruptive, expressed dissatisfaction with his sentence, and began making seemingly conspiratorial statements. In particular, Gallagher stated the Mexican Mafia had a "hit out on [him]," that someone had put a "tracking device in [his] nose," and that someone had put "contacts on [his] face." Gallagher also repeatedly stated that he was going to be killed. The district court imposed various fees and granted credit for time served during this disruption.
Gallagher's disruptive behavior did not indicate that Gallagher did not understand the nature of the charges to which he had pleaded guilty or the nature and purpose of the proceedings. Indeed, the fact that Gallagher only became disruptive after the district court began pronouncing its sentence indicates Gallagher understood, and was reacting to, his sentence. Moreover, during the sentencing hearing, Gallagher had participated in his right of allocution and corrected both the court and his counsel regarding certain details of the case. Gallagher fails to demonstrate that his participation was called for at the hearing once the district court announced its sentencing decision.
To the extent Gallagher replies that he needed to be able to assist his counsel with his direct appeal, neither the Nevada Supreme Court nor the United States Supreme Court has held that a criminal defendant must be competent to proceed with a direct appeal. See People v. Kelly, 822 P.2d 385, 413 (Cal. 1992) (holding that an "appeal can proceed even if [a] defendant has become incompetent"). Moreover, Gallagher does not allege that he was unable to assist his counsel in preparing his appeal. Therefore, we do not consider this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (explaining that appellate courts will not consider claims unsupported by cogent argument and relevant authority); see also Indiana I v. Edwards, 554 U.S. 164, 175 (2008) ("Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways.").
Given this record, Gallagher fails to demonstrate that, at a time when his participation was called for, the district court had been presented with substantial evidence that raised a reasonable doubt as to his competency. We therefore conclude the district court did not abuse its discretion by failing to suspend the sentencing to conduct a competency hearing.
Next, Gallagher argues the district court abused its discretion by failing to allow the victim, his fiancee, to speak at the sentencing hearing. Gallagher did not object when the district court pronounced his sentence without allowing the victim to speak; therefore, we review Gallagher's claim for plain error. See Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48-49 (2018). To demonstrate plain error, an appellant must show "(1) there was an error; (2) the error is plain, meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected [his] substantial rights." Id. at 50, 412 P.3d at 48 (internal quotation marks omitted). "[A] plain error affects a defendant's substantial rights when it causes actual prejudice or a miscarriage of justice (defined as a 'grossly unfair' outcome)." Id. at 51, 412 P.3d at 49. All three requirements of Jeremias must be satisfied to grant relief.
A victim of crime has "the right to express their views before sentencing." Wood v. State, 111 Nev. 428, 430, 892 P.2d 944, 946 (1995); NRS 176.015(3). Here, however, we cannot determine from a casual inspection of the record whether the district court erred. The Division of Parole and Probation (Division) was unable to contact the victim prior to the sentencing hearing, nor is there any indication that the victim provided a victim impact statement to the Division for the district court's consideration. Further, there is no indication from the hearing transcript that the victim made any attempt to address the court before it imposed its sentence, either directly or through an attorney or personal representative, nor did she otherwise indicate a desire to make a statement at the hearing. Moreover, Gallagher's counsel did not object to the sentence being imposed without hearing from the victim. As a result, it is not clear from a casual inspection of the record that the district court erred by pronouncing Gallagher's sentence without first seeking input from the victim.
Finally, Gallagher fails to demonstrate that any error affected his substantial rights. The district court was apprised of the fact that the victim was injured in the accident and that Gallagher was the only one taking care of her as she recovered from her injuries. Further, the court indicated that it imposed its sentence because Gallagher had left the scene of the crime. Therefore, we conclude that there is no basis to grant relief. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Tao, J., Bulla, J.
Hon. Ronald J. Israel, District Judge