135 Nev., Advance Opinion 496
IN THE SUPREME COURT OF THE STATE OF NEVADA
HIGH DESERT STATE PRISON; THE No. 77622
STATE OF NEVADA; AND OFFENDER
MANAGEMENT DIVISION,
Appellants,
FILED
VS. DEC 2 6 2019
LUIS RICHARD SANCHEZ, ETH A. BROWN
Respondent. UPREM - CO
By
CLERK
Appeal from a district court order granting in part a
postconviction petition for a writ of habeas corpus challenging the
computation of time served. Eighth Judicial District Court, Clark County;
Linda Marie Bell, Judge.
Affirmed.
Aaron D. Ford, Attorney General, and Natasha M. Gebrael, Deputy
Attorney General, Carson City,
for Appellants.
Luis Richard Sanchez, Indian Springs,
in Pro Se.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
OPINION
By the Court, HARDESTY, J.:
NRS 209.4465(7)(b) permits the award of good time credit
deductions from an offender's minimum sentence towards the parole
- t5212.90
eligibility date for crimes committed on or after July 17, 1997. In 2007, the
Legislature amended NRS 209.4465 to preclude the application of these
statutory good time credits to an offender's parole eligibility when convicted
of certain crimes, including felony sex offenses and category A or B felonies.
As a result, offenders convicted of the crimes enumerated in NRS
209.4465(8) may have credits applied to their parole eligibility date if they
committed the crimes prior to the amendment's effective date of July 1,
2007, while those offenders captured by the addition of subsection 8 may
not.
This appeal requires us to determine which version of NRS
209.4465 applies when the offender's criminal conduct began prior to the
effective date of the 2007 amendment and continued through its enactment.
Respondent Luis Sanchez was convicted of two counts of attempted
lewdness with a child under 14—a crime captured by the addition of
subsection 8 to NRS 209.4465—and was alleged to have committed the
offenses between 2006 and 2013. The district court applied the 2003 version
of NRS 209.4465, but the State contends this was error because the
attempted lewdness counts were charged as continuing offenses through
2013. We hold that NRS 209.4465(8) (2007) applies when the charged
offense is continuous in nature. However, because attempted lewdness with
a child under 14 is not a continuing offense, we conclude the district court
properly applied the pre-2007 version of the statute, and we affirm.
FACTS AND PROCEDURAL HISTORY
The State charged Sanchez with two counts of attempted
lewdness with a child under 14 in violation of NRS 201.230 and NRS
193.330. The information provided that Sanchez committed these offenses
on or between May 8, 2006, and January 31, 2013, but did not otherwise
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distinguish any specific dates within this range. Sanchez pleaded guilty to
the charged offenses, and the district court entered a judgment of conviction
and sentenced him to two consecutive terms of 5 to 15 years for his
convictions.
Thereafter, Sanchez filed a postconviction petition for a writ of
habeas corpus, arguing that the Nevada Department of Corrections
miscalculated his parole eligibility by failing to properly apply good time
credit to his minimum term of imprisonment. The district court agreed and
granted Sanchez's petition in part.' Specifically, the district court found
that NRS 209.4465(7)(b) (2003), pursuant to Williams v. State, 133 Nev.
594, 402 P.3d 1260 (2017), afforded Sanchez a good time credit deduction
from his parole eligibility date. The State appeals.
DISCUSSION
The State argues on appeal that the district court erred by
applying the pre-2007 version of NRS 209.4465 because Sanchez's crime—
attempted lewdness with a child under 14—constituted a continuing
offense. As such, the State maintains that the district court should have
applied the version of the statute in effect when the crime ended in 2013.
NRS 209.4465(8) (2007), the State continues, precludes the application of
good time credit against Sanchez's minimum sentence because the crime
Sanchez was convicted of constitutes a category B felony.
We review questions of statutory construction de novo. Jackson
v. State, 128 Nev. 598, 603, 291 P.3d 1274, 1277 (2012). NRS 209.4465(7)(b)
1The district court denied several other claims relating to credits. In
his answering brief, Sanchez challenges the district court's determination
concerning his work and merit credits calculations. Because Sanchez did
not pursue an appeal from the district court's order, we lack jurisdiction to
address Sanchez's argument here. NRS 34.575(1).
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mandates that credits earned pursuant to the statute, by an offender who
committed a crime on or after July 17, 1997, must "[a]pply to eligibility for
parole unless the offender was sentenced pursuant to a statute which
specifies a minimum sentence that must be served before a person becomes
eligible for parole." In 2007, the Legislature amended NRS 209.4465 to add
subsection 8, which excludes offenders who committed certain offenses from
having statutory credits applied to their minimum terms. 2007 Nev. Stat.,
ch. 525, § 5, at 3177. Relevant to this appeal, NRS 209.4465(8)(b) and (d)
prohibit offenders convicted of "[a] sexual offense that is punishable as a
felony" or "[a] category A or B felony," respectively, from receiving the
benefit of such credits.
Logically, where an offender committed a crime that began
prior to the 2007 amendment to NRS 209.4465 and ended after the statute's
enactment, the nature of the convicted offense controls which version of the
statute applies. If the nature of the convicted offense is not continuous,
NRS 209.4465 (2003) applies. But if the convicted offense is continuous in
nature, NRS 209.4465 (2007) applies.
Attempted lewdness with a child under the age of 14 constitutes
both a category B felony and a sexual offense punishable as a felony. See
NRS 201.230 (2005); NRS 193.330(a)(1) (1997). As such, Sanchez would be
prohibited from applying good time credits to his parole eligibility date
under the 2007 version of NRS 209.4465. Therefore, we must determine
whether attempted lewdness with a child under 14 constitutes a continuing
offense. We conclude that it does not.
We "consider an offense to be a continuing offense only when
'the explicit language of the substantive criminal statute compels such a
conclusion, or the nature of the crime involved is such that [the Legislature]
4
must assuredly have intended that it be treated as a continuing one.'"
Rimer v. State, 131 Nev. 307, 319, 351 P.3d 697, 706 (2015) (alteration in
original) (quoting Toussie v. United States, 397 U.S. 112, 115 (1970)). We
determined in Rimer v. State that, considering the cumulative effect of
child-abuse-and-neglect violations, the Legislature must have intended to
treat such violations as a continuing offense. Id. at 319-20, 351 P.3d at 707.
We are =persuaded, however, by the State's arguments to extend this logic
to the case at bar.
First, Sanchez was convicted under NRS 201.230 and NRS
193.330, and nothing in the language of these criminal statutes compels us
to conclude that the Legislature intended attempted lewdness with a child
under the age of 14 to be treated as a continuing offense. Second, an
"attempe by definition is "[a]n act done with the intent to commit a crime,
and tending but failing to accomplish it," not a pattern of behavior. NRS
193.330(1) (1997). Just because an act of sexual abuse may constitute child
abuse—a continuing offense, see NRS 200.508(4)(a)—it does not follow that
attempted lewdness with a child under the age of 14 should be treated as a
continuing offense. Finally, we recognize that while the State was not
required to allege an exact date of the offense committed here, the inclusion
of a date range does not mean that the offense was a continuing offense. See
Wilson v. State, 121 Nev. 345, 368-69, 114 P.3d 285, 301 (2005)
(acknowledging that the State may allege "a time frame for an offense
instead of a specific date, provided that the dates listed are sufficient to
place the defendant on notice of the charges").
Because we conclude that attempted lewdness with a child
under the age of 14 is not a continuing offense, we further conclude that the
district court properly relied on the 2003 version of NRS 209.4465 and
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applied Sanchez's earned credits to his parole eligibility. Accordingly, we
affirm the district courf s order granting in part Sanchez's petition for a writ
of habeas corpus.
J.
Hardesty
We concur:
Stiglich
J.
Silver
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