133 Nev., Advance Opinion i01#
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
ANTHONY JACKSON, A/K/A No. 70870
ANTHONY RASHARD JOHNSON,
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent.
DEC 2 2017
ET BROWN.
tNitT
cfNicyf
CLERK
Appeal from a district court order revoking probation and an
amended judgment of conviction. Eighth Judicial District Court, Clark
County; Kerry Louise Earley, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Maxwell A. Berkley, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Krista D. Barrie, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
COURT OF APPEALS
OF
NEVADA
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OPINION
By the Court, GIBBONS, J.:
In this appeal, we address the limited nature of an appeal taken
from an amended judgment of conviction. We conclude that, in an appeal
taken from an amended judgment of conviction, the appellant may only
raise challenges that arise from the amendments made to the original
judgment of conviction. Because appellant Anthony Jackson does not
challenge the amendments made to his original judgment of conviction, we
affirm.
FACTS
Jackson pleaded guilty pursuant to North Carolina v. Alford,
400 U.S. 25 (1970), to one count of possession of a dangerous weapon. The
district court adjudicated him guilty of the dangerous weapon charge and
sentenced him to 364 days in the county jail. The district court suspended
the sentence, placed Jackson on probation for an indeterminate period not
to exceed one year, and ordered the sentence to run concurrently with
Jackson's sentence in a California case. Jackson did not pursue a direct
appeal.
The State subsequently accused Jackson of violating the
conditions of his probation. The district court conducted a probation
revocation hearing and determined Jackson had violated his probation. The
district court ordered Jackson's probation revoked, amended his jail
sentence by reducing it from 364 days to 300 days, and awarded him 46
days' credit for time served. This appeal follows.
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DISCUSSION
Jackson claims his sentence of "three hundred sixty-four (364)
days concurrent with his California case, suspended and placed on
probation for one year concurrent with his California case," constitutes
cruel and unusual punishment in violation of the Eighth Amendment of the
United States Constitution and Article 1, Section 6, of the Nevada
Constitution. Because Jackson's claim plainly challenges the
constitutionality of the sentence imposed in his original judgment of
conviction, we must consider whether an appellant may raise claims that
arise from the original judgment of conviction in an appeal taken from an
amended judgment of conviction.
In Sullivan v. State, the Nevada Supreme Court addressed a
similar issue when it considered whether the entry of an amended judgment
of conviction provided good cause to overcome the procedural bar to an
untimely filed postconviction petition for a writ of habeas corpus. 120 Nev.
537, 96 P.3d 761 (2004). Sullivan filed his postconviction habeas petition
more than one year after the remittitur issued on direct appeal, but because
the petition was filed within one year of the entry of the amended judgment
of conviction, the parties stipulated to treating the petition as timely, and
the district court denied the petition on the merits. Id. at 539, 96 P.3d at
763.
The Nevada Supreme Court noted that a judgment of conviction
may be amended at any time to correct an illegal sentence or clerical error
and an amended judgment may be entered years or decades after entry of
the original judgment of conviction. Id. at 540, 96 P.3d at 764. The court
reasoned that restarting the one-year time period for all purposes after an
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amendment occurred would frustrate the purposes of NRS 34.726 and
"would undermine the doctrine of finality of judgments by allowing
petitioners to file post-conviction habeas petitions in perpetuity." Id. The
court therefore concluded that the one-year statutory time limit for filing a
postconviction habeas petition did not automatically restart upon the filing
of an amended judgment of conviction. Id. at 540-41, 96 P.3d at 764.
The Nevada Supreme Court has "long emphasized the
importance of the finality of judgments." Trujillo v. State, 129 Nev. 706,
717, 310 P.3d 594, 601 (2013); see also Groesbeck v. Warden, 100 Nev. 259,
261, 679 P.2d 1268, 1269 (1984). The Nevada Supreme Court's reasoning
in Sullivan with regard to the finality of judgments applies to the issue
raised by this appeal. As the Sullivan court noted, an amended judgment
of conviction can be entered years, or even decades, after entry of the
original judgment of conviction. See Sullivan, 120 Nev. at 540, 96 P.3d at
764. Allowing a defendant in an appeal from an amended judgment of
conviction to raise challenges that could have been raised on appeal from
the original judgment of conviction would undermine the doctrine of finality
of judgments by allowing a defendant to challenge the original judgment of
conviction in perpetuity. The entry of an amended judgment of conviction
should not provide a basis for raising claims that could have, and should
have, been raised on appeal from the original judgment of conviction. See
Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (providing
that "claims 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,
979 P.2d 222 (1999). Therefore, we conclude that in an appeal taken from
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an amended judgment of conviction, the appellant may only raise challenges
that arise from the amendments made to the original judgment of
conviction.
Jackson appeals from his amended judgment of conviction.
Jackson does not challenge the revocation of his probation or the
amendment of his sentence. Instead, he only challenges the
constitutionality of the sentence imposed in the original judgment of
conviction. We conclude this claim is not properly raised in this appeal.
Accordingly, we affirm the amended judgment of conviction.
J.
Gibbons
We concur:
C.J.
Silver
, J.
Tao
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JACKSON (ANTHONY) VS. STATE
Combined Opinion