BILLY RAY RILEY v. THE STATE OF NEVADA (2025)

ORDER GRANTING REHEARING AND ORDER OF AFFIRMANCE

Billy Ray Riley appeals from a district court order denying a motion to correct an illegal sentence filed on November 5, 2024.¹ Eighth Judicial District Court, Clark County; Carli Lynn Kierny, Judge.

Riley contends the district court erred by denying his motion to correct an illegal sentence. Specifically, Riley asserts his motion should have been granted because he should not have been sentenced under the habitual criminal statute when the State failed to properly notice him pursuant to NRS 173.095 and NRS 207.010 that it was seeking habitual criminal adjudication. He contends the post-verdict amendment of the indictment to add a charge of habitual criminality was improper and therefore the sentencing court lacked authority to impose a habitual criminal sentence.

A motion to correct an illegal sentence may only challenge the facial legality of the sentence: either the district court was without jurisdiction to impose a sentence or the sentence was imposed in excess of the statutory maximum. Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996). “A motion to correct an illegal sentence presupposes a valid conviction and may not, therefore, be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence.” Id. (internal quotation marks omitted).

Riley does not assert that his sentence was facially illegal beyond his contention that the district court lacked jurisdiction to impose habitual criminal adjudication. To that end, Riley argues that the State's failure to properly notice and amend the indictment deprived the sentencing court of jurisdiction to impose a habitual criminal sentence.

Before trial, the State filed a motion to amend the charges to include a habitual criminal allegation. And after the jury found Riley guilty, the district court granted the pending motion to amend, and the indictment was amended to include the habitual criminal allegation. The version of NRS 207.010 in effect at the time of the offense permitted filing a habitual criminal allegation after conviction for the primary offense. See 1985 Nev. Stat., ch. 366, § 2, at 1027. To the extent the State should have filed the habitual criminal count in a separate document instead of amending the indictment after the verdict, compare id. (allowing a habitual count to “be separately filed after conviction of the primary offense”), with 1985 Nev. Stat., ch. 366, § 1, at 1026 (former NRS 173.095, providing an indictment or information may “be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced”), Riley has not shown that any error deprived the district court of jurisdiction at sentencing, cf. LaChance v. State, 130 Nev. 263, 267, 321 P.3d 919, 928 (2014) (concluding any error associated with the State filing a notice of its intent to seek habitual criminal adjudication, instead of filing a separate count or amending the charging document to include the allegation, did not constitute plain error and affirming the district court's adjudication of the defendant as a habitual offender). Therefore, we conclude the district court did not err in denying Riley's motion. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   On June 16, 2025, this court entered an order of affirmance in the above captioned case which affirmed the district court's denial of Riley's motion to correct an illegal sentence. On July 7, 2025, Riley filed a petition for rehearing arguing this court overlooked controlling authority regarding how his indictment was amended to add the habitual felon count. Having reviewed the petition for rehearing, we have determined that rehearing of this matter is warranted. Accordingly, we grant the petition for rehearing and reinstate this appeal.