Mendoza-Lobos v. State

Douglas, J.,

with whom Parraguirre and Pickering, JJ., agree, concurring in part and dissenting in part:

I agree with the majority that the portion of NRS 193.165(1) requiring the district courts to consider certain enumerated factors when imposing a sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine. I also agree with the result reached. However, I disagree with my colleagues’ conclusion that NRS 193.165(1) is ambiguous.

The majority concludes that the language of NRS 193.165(1) is ambiguous and thus looks to its legislative history to determine its meaning. In my view, the plain language of the statute is clear and we need not examine legislative intent.

A statute is only ambiguous when its language “lends itself to two or more reasonable interpretations.” State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). And this court has consistently stated that if the plain language of a statute is not ambiguous, we will not look beyond the statutory language. See Sheriff v. Witzenburg, 122 Nev. 1056, 1061, 145 P.3d 1002, 1005 (2006); Butler v. State, 120 Nev. 879, 893, 102 P.3d 71, 81 (2004); see also Sparks Nugget v. State, Dep’t of Taxation, 124 Nev. 159, 167 n.31, 179 P.3d 570, 576 n.31 (2008) (noting that where constitutional language is not ambiguous, this court is precluded from considering legislative intent).

The portion of NRS 193.165(1) at issue states: “The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of the additional penalty imposed.”

I would conclude that this language is clear and unambiguous. Unlike other statutes, see, e.g., NRS 34.830(1) (providing that any order finally disposing of a habeas corpus petition “must contain specific findings of fact and conclusions of law supporting the decision of the court”), the plain language of NRS 193.165(1) requires only that the district court “state on the record that it has considered” the enumerated factors; the statute makes no mention of findings. Thus, I would conclude that it is not reasonable to interpret NRS 193.165(1) to require the district court to articulate findings.

Mendoza-Lobos contends that even if NRS 193.165(1) does not require the district court to articulate findings, this court should nevertheless advise district courts to do so. He argues that without findings, sentences imposed for deadly weapon enhancements are unreviewable in any meaningful manner. In support of this argument, *646Mendoza-Lobos relies on this court’s recent decision in Knipes v. State, 124 Nev. 927, 192 P.3d 1178 (2008). In that case, this court held that hearings to determine the admissibility of juror questions should be held on the record. Id. at 933, 192 P.3d at 1182. We noted the trend towards requiring the district courts to make factual findings on the record and discussed two interrelated policy concerns: “ensuring meaningful appellate review and facilitating the efficient administration of justice.” Id. at 932, 192 P.3d at 1181 (internal footnote omitted). See also Rosky v. State, 121 Nev. 184, 191, 111 P.3d 690, 695 (2005) (advising “district courts to clearly set forth the factual findings relied upon in resolving suppression motions”).

While findings may be of great assistance in reviewing many other types of trial court decisions, sentencing determinations are distinguishable from evidentiary and other decisions made by district courts because this court has consistently declined to review sentencing determinations that are within the statutory guidelines, are not based solely on “impalpable or highly suspect evidence,” and are not “ ‘so unreasonably disproportionate to the offense as to shock the conscience.”’ Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976); Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 222 (1979)). Thus, in light of the statute’s plain language, I would decline Mendoza-Lobos’ invitation to require district courts to make findings in the absence of a statutory requirement to do so.

In the instant case, the district court indicated on the record that it considered each of the factors as they related to each of the deadly weapon enhancements. Before pronouncing Mendoza-Lobos’ sentence, the district court acknowledged that counts 2, 3, and 4 carried deadly weapon enhancements, read the enumerated factors into the record, and then stated: “[I]n looking at all of these factors ... I do find that the proposals for consecutive additional time due to the use of a deadly weapon are well appropriate.” Under these circumstances, I would conclude that the district court fully complied with the requirements of NRS 193.016(1) and did not commit any error with regard to Mendoza-Lobos’ sentences for the deadly weapon enhancements.