In re I.S.

140 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA

IN THE MATTER OF I.S., A CHILD AS No. 86035
DEFINED BY NRS 62A.030. '

1.S., tFï LED
Appellant,
vs. MAR 28 20
THE STATE OF NEVADA, EU
CLE
Respondent. BY
IEF DEPUTY CLERK

Appeal from a district court order affirming and adopting a
juvenile master's recommendations to adjudicate appellant a delinquent
child and to impose formal probation conditions. Second Judicial District
Court, Family Division, Washoe County; Bridget E. Robb, Judge.
Affirmed.

Evelyn Grosenick, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Katherine C. Maher, Deputy Public Defender, Washoe
County,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Shelly K. Scott, Chief Deputy District Attorney,
Washoe County,
for Respondent.

BEFORE THE SUPREME COURT, CADISH, C.J., and PICKERING and
BELL, JJ.

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 OPINION

By the Court, CADISH, C.J.:
The district court affirmed and adopted a juvenile court
master's recommendations to adjudicate appellant I.S. a delinquent and
place I.S. on formal probation despite Juvenile Services' recommendation
for informal supervision. In doing so, the court rejected I.S.'s argument that
NRS 62C.200(1)(b) creates an unconstitutional prosecutorial veto by
requiring the district attorney's written approval before informal
supervision may be ordered notwithstanding that NRS 62C.230(1)(a) gives
a juvenile court authority to dismiss a petition without prejudice and refer
the child to a probation officer for informal supervision. I.S. maintains on
appeal that NRS 62C.200 is inconsistent with the separation of powers
doctrine.
As I.S. is no longer under supervision, we first address whether
this appeal is moot. Because I.S. is under 18 and his record has not been
sealed, collateral consequences of the underlying adjudication remain, and
thus, we conclude that this appeal is not moot. As to the merits, we conclude
that NRS 62C.200(1) does not create a separation of powers issue because
the court's ability to dismiss a petition without prejudice and refer a juvenile
to informal probation is not a sentencing decision in nature, and thus, the
statute does not encroach on the court's sentencing discretion. We therefore
affirm.
FACTS AND PROCEDURAL HISTORY
The Washoe County District Attorney filed a juvenile
delinquency petition against appellant I.S., charging I.S. with the unlawful
acts of possessing a schedule I controlled substance and placing graffiti on
or otherwise defacing property. If I.S. had been charged with the same

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 unlawful acts in the adult criminal justice system, the drug possession
would have been charged as a felony and the graffiti act would have been
charged as a gross misdemeanor. The Washoe County Department of
Juvenile Services (Juvenile Services) filed a dispositional report,
recommending the petition be dismissed and I.S. be referred to juvenile
probation for informal supervision. Juvenile Services indicated the
informal supervision should require I.S. to complete 100 hours of a work
program or community service and a youth development program, and that
I.S. should be required to pay restitution.
During the plea entry hearing, I.S. "freely, knowingly and
voluntarily admitted to the allegations contained in the Petition." At the
subsequent dispositional hearing, Juvenile Services recommended the
informal sanctions outlined in its dispositional report. Meanwhile, the
State argued I.S. should proceed to formal adjudication. In response, I.S.
argued that NRS 62C.200(1)(b)'s requirement of prosecutorial consent
before a juvenile court may dismiss a petition and send a juvenile to
informal supervision under NRS 62C.230 unconstitutionally violated the
separation of powers between the executive and judicial branches of
government. The parties then briefed whether the court should sever the
language in NRS 62C.200(1)(b) as an unconstitutional prosecutorial veto.
In his opening brief before the juvenile master, I.S. asserted
that NRS 62C.200(1)(b) unconstitutionally infringed on the juvenile court's
sentencing discretion by requiring the prosecutor's written consent to
dismissal of a petition and referral of the juvenile to informal supervision
as a prerequisite to the juvenile court taking such action. I.S. argued the
juvenile court's sentencing discretion was invoked when I.S. admitted to
both counts in the petition and entered a plea. Therefore, I.S. contended,

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 the prosecutorial-consent portion of NRS 62C.200(1)(b), as incorporated in
NRS 62C.230, unconstitutionally conditioned the juvenile court's exercise
of its sentencing discretion upon prosecutorial approval.
In opposition, the State first argued that the juvenile court,
unlike adult criminal courts, is a creation of statute and only possesses the
jurisdiction specifically provided for it in Title 5 of the Nevada Revised
Statutes. Second, the State argued that In re Steven Daniel P., 129 Nev.
692, 309 P.3d 1041 (2013), disposed of the very separation of powers
argument presented by I.S. Third, the State posited that I.S.'s case was
distinguishable from State v. Second Judicial District Court (Hearn), 134
Nev. 783, 432 P.3d 154 (2018), on which I.S. relied, in part because, unlike
the veterans court program at issue there, NRS 62C.200 and NRS 62C.230
allow for resolution without any court involvement.
The juvenile master entered findings and a recommendation
wherein she determined that NRS 62C.230(1) grants the juvenile court
sentencing power, which is then unconstitutionally limited by NRS
62C.200(1)(b)'s requirement for written prosecutorial approval. The
juvenile master recommended the district court decline to follow the portion
of the statute requiring the prosecutorial consent. On the State's objection,
the district court reversed the master's recommendations, finding NRS
62C.200(1)(b) did not violate the separation of powers doctrine. The district
court pointed to the limited statutorily prescribed jurisdiction of the
juvenile court and how the juvenile statutes allow for resolution of a
juvenile's alleged violations of criminal laws without any court involvement.
On remand, the juvenile master recommended adjudicating I.S.
guilty of the two charges, deeming him a ward of the court, and placing him
on formal probation. The master found I.S. subject to the same conditions

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 of probation and supervision outlined in the dispositional report, some of
which I.S. had already completed, and recommended I.S. participate in a
program and pay restitution. With no timely objection filed, the district
court entered an order affirming and adopting the juvenile master's
recommendations. This appeal followed.
DISCUSSION
The appeal is not moot because an adjudication of juvenile delinquency
creates a presumption of collateral consequences
After LS. appealed, the juvenile court entered an order adopting
the juvenile master's recommendation that I.S. was no longer subject to
juvenile probation supervision pending the final closure of the matter. I.S.
acknowledges that his appeal may have become moot because he is no
longer subject to juvenile probation supervision. "The question of mootness
is one of justiciability." Personhood Nev. v. Bristol, 126 Nev. 599, 602, 254
P.3d 572, 574 (2010). Therefore, an actual controversy must be present at
all stages of the proceeding. Id. Within the context of criminal cases, we
have recognized that such a controversy still exists even after the sentence
is completed due to "disabilities or burdens" resulting from a conviction. See
Martinez-Hernandez v. State, 132 Nev. 623, 626, 380 P.3d 861, 864 (2016)
(quoting Carafas v. LaVallee, 391 U.S. 234, 237 (1968)). Thus, a habeas
petitioner possesses a "substantial stake" in the judgment of conviction that
survives satisfaction of the petitioner's resultant sentence. Id. (quoting
Carafas, 391 U.S. at 237); see also id. at 627, 380 P.3d at 864 ("Dr instances
where collateral consequences of a conviction exist, a habeas petition
challenging the validity of a judgment of conviction does not become moot
when the petitioner, who was in custody at the time the petition was filed,
is released frorn custody subsequent to the filing of the petition.").

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 We conclude that the same reasoning applies in juvenile
delinquency adjudications. Collateral consequences inay continue from a
juvenile delinquency adjudication even where the juvenile is no longer
subject to supervision, including that a juvenile record may appear on
subsequent presentence investigation reports and could impact a judge's
sentencing decision. Thus, there is a presumption of collateral
consequences of such an adjudication that prevents a challenge to that
adjudication from becoming moot at the completion of juvenile supervision.
However, after the juvenile's record is sealed, see NRS 62H.140 (addressing
the sealing of juvenile records, which generally occurs when the juvenile
reaches age 18), a juvenile delinquency adjudication no longer carries a
presumption of collateral consequences. See NRS 62H.030(3)(b) ("The
following records and information may be opened to inspection without a
court order: ... Hecords which have not been sealed and which are
required by the Division of Parole and Probation for preparation of
presentence investigations and reports pursuant to NRS 176.135 or general
investigations and reports pursuant to NRS 176.151 . . . ."). Here, I.S. is
still a minor, so his record could be included in presentence investigation
reports addressing any subsequent juvenile delinquency matters involving
I.S. Because collateral consequences of this adjudication are presumed to
remain, I.S.'s appeal is not moot.
NRS 62C.200(1)(b)'s requirement for prosecutorial consent, as incorporated
in NRS 62C.230, does not violate the separation of powers doctrine
Consistent with his argument below, I.S. argues that NRS
62C.200(1), as incorporated in NRS 62C.230, creates an unconstitutional
prosecutorial veto because it conditions the juvenile court's sentencing
powers on the approval of the district attorney. The State argues that the
statute does not create a separation of powers problem because the juvenile
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 court is not exercising its sentencing discretion when it dismisses a petition
without prejudice, and unlike the district court in adult criminal cases, the
juvenile court's authority is not derived from the constitution and is instead
limited to the authority expressly prescribed to it by statute. We agree with
the State.
We review the constitutionality of a statute de novo. State v.
Second Jud. Dist. Ct. (Hearn), 134 Nev. 783, 786, 432 P.3d 154, 158 (2018).
"Because statutes are presumed to be valid," I.S. bears the heavy burden of
demonstrating that NRS 62C.200(1)(b)'s requirement for prosecutorial
consent as incorporated in NRS 62C.230 is unconstitutional. Aguilar-
Raygoza v. State, 127 Nev. 349, 352, 255 P.3d 262, 264 (2011); Douglas
Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 557, 170 P.3d 508, 512
(2007). Under NRS 62C.230, "[i]f the district attorney files a petition with
the juvenile court, the juvenile court may . . . [d]ismiss the petition without
prejudice and refer the child to the probation officer for informal supervision
pursuant to NRS 62C.200." NRS 62C.200(1) provides that a child against
whom a complaint has been made "may be placed under the informal
supervision of a probation officer if:"
(a) The child voluntarily admits participation
in the acts alleged in the complaint; and
(b) The district attorney gives written
approval for placement of the child under informal
supervision, if any of the acts alleged in the
complaint are unlawful acts that would have
constituted a gross misdemeanor or felony if
committed by an adult.
Both the United States Constitution and the Nevada
Constitution contain separation of powers provisions requiring the "discrete
treatment of the three branches of government." Comm'n on Ethics v.
Hardy, 125 Nev. 285, 292, 212 P.3d 1098, 1103 (2009); Hearn, 134 Nev. at
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 786, 432 P.3d at 158; see Nev. Const. art. 3, § 1(1). "But 'Nevada's
Constitution goes one step further; it contains an express provision
prohibiting any one branch of government from impinging on the functions
of another." Hearn, 134 Nev. at 786, 432 P.3d at 158 (quoting Hardy, 125
Nev. at 292, 212 P.3d at 1103-04); see Nev. Const. art. 3, § 1(1). Our caselaw
supports the proposition "that charging decisions are within the executive
realm and sentencing decisions are inherently judicial functions." Hearn,
134 Nev. at 786, 432 P.3d at 158. Once a court has been granted sentencing
discretion, it "cannot be conditioned upon the prosecution's approval
without running afoul of the separation of powers doctrine." Id. at 787, 432
P.3d at 158.
In Steven Daniel P., this court analyzed the plain language of
the statutes at issue here. 129 Nev. 692, 309 P.3d 1041 (2013). There, the
juvenile court dismissed a juvenile delinquency petition and referred the
juvenile to informal supervision without the written approval of the district
attorney. Id. at 695, 309 P.3d at 1043. Applying the statutes, we concluded
"that written approval is required from the district attorney before the
juvenile court can place a juvenile under informal supervision when the
juvenile has allegedly committed an unlawful act that would be a gross
misdemeanor or a felony if committed by an adult." Id. at 697, 309 P.3d at
1044. Further, relying on State v. Barren, we concluded the juvenile court's
discretion to dismiss the petition and refer Steven for informal supervision
was expressly limited by statute. Id. at 700, 309 P.3d at 1046 (citing State
v. Barren, 128 Nev. 337, 341, 279 P.3d 182, 184 (2012) ("[T]he juvenile court
system is a creation of statute, and it possesses only the jurisdiction
expressly provided for it in the statute." (quoting Kell v. State, 96 Nev. 791,
792-93, 618 P.2d 350, 351 (1980)))). While the State posited that the

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 juvenile court's dismissal and referral without the written approval of the
district attorney usurped the legislative and executive power provided
under the separation of powers doctrine, we did not conduct a separation of
powers analysis, instead relying on our conclusion that the court had
exceeded its statutory authority to reverse. Steven Daniel P., 129 Nev. at
700, 309 P.3d at 1046.
In Hearn, we analyzed Nevada's separation of powers doctrine
within the context of a district court's decision to assign a criminal
defendant to the veterans court program. 134 Nev. at 787, 432 P.3d at 159.
At the tirne, NRS 176A.290(2) required the stipulation of the prosecuting
attorney before a district court could assign an eligible defendant to
veterans court if the offense charged or the defendant's prior convictions
involved the use or threatened use of force or violence. Id. at 783-84, 432
P.3d at 156. We held the prosecutorial-consent element constituted a
prosecutorial veto, which violated the Nevada Constitution's separation of
powers doctrine. Id. at 788, 432 P.3d at 159. We characterized assignment
to the veterans court program as "a statutorily approved alternative to
entering a judgment of conviction and imposing a term of incarceration."
Id. at 787, 432 P.3d at 159. In analyzing the application of the separation
of powers doctrine in this context, we stated "the principle gleaned is that
once a defendant's guilt has been determined, the prosecutor's charging
discretion is complete and the judiciary's sentencing discretion, if any, is all
that remains." Id.
Applying that reasoning in the juvenile context, we conclude
that a juvenile court's decision to disrniss a petition without prejudice and
refer a juvenile to informal supervision is not a sentencing decision, as it
does not involve imposition of a period of detention or imposition of

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 requirements under the supervision of the court with consequences to be
imposed by the court if they are not satisfied. 6 Wayne R. LaFaye, Jerold
H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 26.1(a), at
863 (4th ed. 2015) (categorizing sentencing options into five categories:
"capital punishment, incarceration, community release (probation),
intermediate sanctions [(typically a combination of incarceration and
probation or a suspended term of incarceration)], and financial sanctions");
see Sentencing, Legal Information Institute, https://www.law.cornell.edu/
wex/sentencing (last visited Feb. 14, 2024) ("A criminal sentence refers to
the formal legal consequences associated with a conviction. Types of
sentences include probation, fines, short-term incarceration, suspended
sentences, which only take effect if the convict fails to meet certain
conditions, payment of restitution to the victim, community service, or drug
and alcohol rehabilitation for minor crimes. More serious sentences include
long-term incarceration, life-in-prison, or the death penalty in capital
murder cases."). NRS 62C.230 does not implicate the juvenile court's
sentencing discretion because it permits the juvenile court to simply dismiss
the petition with a referral for informal supervision without entry of
judgment or any further involvement or supervision of the juvenile court.
Hearn is distinguishable because the assignment of a criminal defendant to
a program like veterans court is a procedure that occurs in lieu of a
defendant being sentenced to a term of incarceration and the district court
maintains involvement in the case after it assigns a defendant to veterans
court. If the defendant is not successful in their completion of the program,
which is supervised by the court, the district court may enter a judgment of
conviction and impose an appropriate sentence. See NRS 176A.290(2)(b).
Alternatively, if the defendant is successful in their completion of the
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 program, the district court may then discharge the defendant and either
dismiss the proceedings or set aside the judgment of conviction. See NRS

176A.290(3)(a).
Conversely, when a juvenile court exercises its discretion under
NRS 62C.230 to dismiss a petition, there is no further involvement from, or
supervision by, the juvenile court. Should a juvenile fail to comply with the
requirements of informal supervision, the onus is on the district attorney to
refile the petition if the juvenile is to face formal adjudication. See NRS
62C.200(6) ("The district attorney may not file a petition against the child
based on any acts for which the child was placed under informal supervision

unless the district attorney files the petition not later than 180 days after
the date the child entered into the agreement for informal supervision.").
NRS 62C.230 provides no mechanism for a juvenile court to directly
formally adjudicate a juvenile as delinquent if they fail to complete all terms
of informal supervision. Permitting the juvenile court to dismiss a petition
without prejudice and refer a juvenile to informal supervision under NRS
62C.230 without the written approval of the district attorney would be
analogous to permitting the juvenile court to accept a plea bargain from a
juvenile without the district attorney's involvement in the bargaining for
and acceptance of a plea. Cf. People v. Andreotti, 111 Cal. Rptr. 2d 462, 465,
469, 471 (Ct. App. 2001) (determining that a trial court could not defer entry
of judgment without the State's consent because it would be an

unconstitutional infringement on the State's ability to plead and prosecute
a case). Further, unlike the situation addressed in Hearn, which pertained
to the district court's authority as set forth in the constitution, the juvenile
court is entirely a creature of statute, and its authority is expressly limited
to that provided to it by the Legislature. Barren, 128 Nev. at 341, 279 P.3d

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 at 184. For this reason, and because dismissal and referral of a juvenile for
informal supervision under NRS 62C.230 does not constitute an exercise of
the juvenile court's sentencing discretion, we conclude that the
prosecutorial-consent requirement of NRS 62C.200(1)(b), as incorporated in
NRS 62C.230, does not violate the separation of powers doctrine.
CONCLUSION
We conclude that I.S.'s appeal is not moot because, like an adult
criminal conviction, a formal adjudication of juvenile delinquency carries
with it a presumption of collateral consequences until the juvenile reaches
age 18 and/or their juvenile record is sealed. We also conclude that NRS
62C.230's incorporation of NRS 62C.200(1)(a)'s prosecutorial-consent
requirement does not violate the separation of powers doctrine. When a
juvenile court exercises the option to dismiss a petition under NRS 62C.230,
it is not exercising its sentencing discretion. Rather, the option to dismiss
a petition without prejudice and refer a juvenile to informal supervision
under NRS 62C.230 is more akin to a charging decision. Therefore, the
requirement for the written approval of the district attorney before a
juvenile court can dismiss a petition at this stage is not an unconstitutional
prosecutorial veto and does not run afoul of the separation of powers
doctrine. We therefore affirm the order of the district court.

, C.J.

We concur:

Poem , J.
Pickering
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