DANIEL STEVEN KELLY v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Daniel Steven Kelly appeals from a judgment of conviction, entered pursuant to a guilty plea, of attempted lewdness with a child under the age of 14. Eighth Judicial District Court, Clark County; Monica Trujillo, Judge.

Kelly argues the district court exhibited bias by stating during sentencing that he should be held to a “higher standard” because he was a police officer. Kelly contends that the “higher standard” reference constituted a personal belief acquired by the district court outside of the proceedings and that this opinion reflects “a deep-seated favoritism or antagonism that would make fair judgment impossible.”

Prior to sentencing, Kelly filed a sentencing memo highlighting his prior career as a police officer and arguing in mitigation that the district court should weigh, among other things, “his previous occupation as a police officer.” Kelly attached to his memo multiple letters of support from friends and family. All but one of the letters highlighted Kelly's prior career as a police officer. During sentencing, the prosecutor argued that she was certain Kelly's career as a police officer would “be used to prop up a request for probation,” but that Kelly “should be held to a higher standard.” Kelly did not object to this argument. The prosecutor further argued the victim's mother had no reason to distrust sending her daughter to Kelly's home for a sleep over because “isn't she thinking there's even more trustworthiness in this decision because he is a police officer, right?”

During his sentencing argument, Kelly sought probation and highlighted his prior career as a police officer. During allocution, Kelly stated: “The past few years have been incredibly difficult. I lost my job as a police officer; a career I dedicated myself to with pride and integrity. This loss has not only affected me financially, but has also weighed heavily on my sense of identity and purpose.” Kelly's counsel argued that one of the “ancillary consequences” Kelly had to face was the loss of his career as a police officer, noting “not everyone who is similarly situated in this position who pleads guilty to the same crimes has to go through.” As a mitigating factor, counsel argued, “Mr. Kelly was a police officer. He worked hard for this, and despite the guilty plea now. he, at the time was working to ensure that our community was safe.”

The victim's mother gave an impact statement explaining she “never let [the victim] spend the night at other people's homes” but “thought what better home than a Las Vegas police officer where there were five other small children staying.” She noted Kelly “took an oath to serve and protect others” but “[i]nstead of protecting he caused irreparable damage to my family.” Prior to imposing sentence, the district court noted that it considered the mitigating evidence but that the evidence must be balanced against the nature of the offense. The district court further stated, “I'm not punishing him for other action [sic], but I do think as a police officer he should be held to a higher standard. Not saying that he should be punished more because he is a police officer, but I do think that he needs to be held to a higher standard.”

Based on these facts, Kelly has not demonstrated the district court's sentencing decision was based on knowledge acquired outside of the proceedings, and the district court's decision at sentencing does not otherwise reflect “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022) (internal quotation marks omitted) (explaining that, unless an alleged bias has its origins in an extrajudicial source, disqualification is unwarranted absent a showing that the judge formed an opinion based on facts introduced during official judicial proceedings and which reflects deep-seated favoritism or antagonism that would render fair judgment impossible); see In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (providing that rulings made during official judicial proceedings generally “do not establish legally cognizable grounds for disqualification”); see also Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011) (noting “a judge is presumed to be impartial”); Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (stating the burden is on the party asserting bias to establish sufficient factual grounds for disqualification), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 535 P.3d 1167 (2023). Therefore, we conclude Kelly is not entitled to relief based on this claim.

Kelly also argues his sentence amounts to cruel and unusual punishment. 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).

Kelly's two-to-six-year prison sentence is within the parameters provided by the relevant statutes, see NRS 193.153(1)(a)(1); NRS 201.230(2), and Kelly does not allege that those statutes are unconstitutional. Having considered the sentence and the crime, we conclude the sentence imposed is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment. Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.