Opinion
No. 82647-COA
10-07-2021
Keith TOBIN, Appellant, v. The STATE of Nevada, Respondent.
Keith Tobin Attorney General/Carson City
Keith Tobin
Attorney General/Carson City
ORDER REVERSING, VACATING AND REMANDING
In his motion, Tobin claimed his sentence of 15 years to life in prison was improper because it exceeds the permissible sentence for sexual assault. Tobin notes his sentence would have been appropriate for sexual assault resulting in substantial bodily harm, but he neither was charged with nor pleaded guilty to sexual assault resulting in substantial bodily harm. A sentence "at variance with the controlling sentencing statute" is illegal. Edwards v. State , 112 Nev. 704, 708, 918 P.2d 321, 324 (1996) (quotation marks omitted). "[T]he proper penalty is the penalty in effect at the time of the commission of the offense ...." State v. Second Judicial Dist. Court (Pullin ), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008). At the time of Tobin's offenses, a defendant convicted of sexual assault resulting in substantial bodily harm was subject to imprisonment for a term of 15 to 40 years, 15 years to life, or for life without the possibility of parole. See 1999 Nev. Stat., ch. 105, § 23, at 431 (former NRS 200.366(2)(a) ). A violation that did not result in substantial bodily harm was subject to imprisonment for a term of 10 to 25 years or 10 years to life. See id. (former NRS 200.366(2)(b) ).
Tobin committed the offenses on March 20, 2000. He pleaded guilty to burglary while in possession of a deadly weapon, robbery with the use of a deadly weapon, and sexual assault with the use of a deadly weapon. Tobin challenged only the sentence imposed for the underlying sexual assault conviction. Any amendment to this sentence would necessarily result in an amendment to the attendant enhancement for use of a deadly weapon. See 1995 Nev. Stat., ch. 455, § 1, at 1431 (former NRS 193.165(1) ) (providing for a sentence "equal to and in addition to the term of imprisonment prescribed by statute" for the substantive crime).
Tobin's charging document, his guilty plea agreement, and his judgment of conviction all refer only to NRS 200.366 without reference to any subsection of that statute. And neither any of those documents nor Tobin's guilty plea canvass referred to the sexual assault having resulted in substantial bodily harm. In light of these facts, Tobin was convicted of sexual assault that did not result in substantial bodily harm. Accordingly, his sentence is at variance with the controlling sentencing statute.
In response to an order of this court, the State argues that Tobin's sentence is not illegal because it is consistent with the sentence he bargained for. The State cites Breault v. State , 116 Nev. 311, 996 P.2d 888 (2000), in support of its argument. In Breault , the Nevada Supreme Court held that a defendant may knowingly and voluntarily agree to a sentence at variance with the 40 percent rule when the defendant expressly waives the defect impacting only parole eligibility. Id. at 314, 996 P.2d at 889. However, Breault is distinguishable because Tobin never expressly waived the defect. Therefore, we conclude the State's reliance on Breault is misplaced.
Because, the sentence imposed for Tobin's sexual assault conviction is facially illegal, we conclude the district court erred by denying Tobin's motion. We therefore vacate the judgment of conviction and remand for resentencing in accordance with 1999 Nev. Stat., ch. 105, § 23, at 431 (former NRS 200.366(2)(b) ) and 1995 Nev, Stat., ch, 455, § 1, at 1431 (former NRS 193.165(1) ). Accordingly, we
ORDER the judgment of the district court REVERSED, Vasquez's sentence for sexual assault with the use of a deadly weapon VACATED, and this matter REMANDED to the district court for a new sentencing hearing.