Opinion
No. 68625
05-17-2016
CLINT DAVID ROWE, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order revoking probation and an amended judgment of conviction. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
First, appellant Clint Rowe claims he was denied minimum due process protections during his probation revocation proceedings because he was held without a preliminary inquiry. Rowe did not preserve this claim for appellate review and we conclude he has not demonstrated plain error because the record reveals he was afforded a full and fair formal revocation hearing, he was represented by counsel, and he was given a meaningful opportunity to respond to the violation report and to present witnesses on his behalf. See NRS 178.602; Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (discussing plain-error review); see generally Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979) (denying relief for failure to conduct a preliminary inquiry because the final revocation hearing was adequate in all respects); United States v. Companion, 545 F.2d 308, 313 (2d Cir. 1976) (same).
Second, Rowe claims he was denied minimum due process protections during his probation revocation proceedings because he was unable to confront and question the author of the probation violation report. Rowe did not preserve this claim for appellate review and we conclude he has not demonstrated plain error because the record reveals he stipulated to the probation violations and he chose not to confront and question Officer Eric Chandler despite the fact Chandler was present during the formal revocation hearing and available for examination. See NRS 178.602; Valdez, 124 Nev. at 1190, 196 P.3d at 477; see generally Anaya v. State, 96 Nev. 119, 123-25, 606 P.2d 156, 158-160 (1980) (discussing a probationer's due process right to confront and question his accusers).
Third, Rowe claims the conditions placed on his probation were unconstitutional because they were conflicting in nature and application. We conclude Rowe waived this claim by failing to raise it in a direct appeal from the judgment of conviction. See United States v. Stine, 646 F.2d 839, 846 (3d Cir. 1981) (noting challenges to the constitutionality of probation conditions must be raised on direct appeal); Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) ("[C]laims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings."), overruled on other grounds by Thomas v. State, 115 Nev. 148, 150, 979 P.222, 223-23 (1999).
Having concluded Rowe is not entitled to relief, we
ORDER the order revoking probation and the amended judgment of conviction AFFIRMED.
/s/_________, C.J.
Gibbons /s/_________, J.
Tao /s/_________, J.
Silver cc: Hon. Valerie Adair, District Judge
Pitaro & Fumo, Chtd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk