MICHAEL HUNTER v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Michael Hunter appeals from a judgment of conviction, entered pursuant to a guilty plea, of felony attempted possession of a telecommunications device by a state prisoner. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

Hunter argues the district court abused its discretion in imposing a sentence that amounts to cruel and unusual punishment and by failing to consider his mitigating evidence. Specifically, Hunter asserts the district court failed to consider his argument he had illicitly obtained a cellular phone while in a transitional housing center “for the sole purposes of finding employment,” his expression of remorse for his conduct, and his acceptance of responsibility.

The district court has wide discretion in its sentencing decision. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987). Generally, this court will not interfere with a sentence imposed by the district court that falls within the parameters of relevant sentencing statutes “[s]o long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence.” Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976); see Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998). Regardless of its severity, “[a] sentence within the statutory limits is not ‘cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience.’ ” 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, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining the Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly disproportionate to the crime).

The district court here sentenced Hunter to 12 to 30 months i prison, to run concurrent to the sentence Hunter was serving at the time he committed the instant offense. Hunter does not argue the district court relied on impalpable or highly suspect evidence. Silks, 92 Nev. at 94, 545 P.2d at 1161. And contrary to Hunter's argument on appeal, the record reflects the district court considered Hunter's mitigating evidence as well as the facts and circumstances surrounding the offense and Hunter's criminal history as reflected in the presentence investigation report before sentencing Hunter. The sentence is within the parameters provided by the relevant statutes, see NRS 193.130(2)(e); NRS 193.153(1)(a)(5); NRS 212.165(3), and Hunter does not argue that these statutes are unconstitutional. Rather, Hunter argues the district court abused its discretion and imposed a sentence amounting to cruel and unusual punishment because “numerous other ․ prisoners who were criminally charged with similar conduct” were sentenced to credit for time served.¹ Having considered the sentence and the crime, we conclude the sentence imposed is not grossly disproportionate to the crime, it does not constitute cruel and unusual punishment, and the district court did not abuse its discretion when imposing sentence. Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook

FOOTNOTES

1.   Hunter did not provide any evidence or information to support his claim to the district court that other courts had sentenced similarly situated prisoners to credit for time served, nor has he presented any such evidence to this court on appeal.