SALVADOR AQUINO v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE AND REMANDING TO CORRECT JUDGMENT OF CONVICTION

Salvador Aquino appeals from a judgment of conviction, entered pursuant to a no contest plea, of unlawful communication between a person in authority and a pupil. Third Judicial District Court, Lyon County; John Schlegelmilch, Judge.

Aquino argues his two-to-five-year prison sentence amounts to cruel and unusual punishment given the joint sentencing recommendation of the parties ¹ and his mitigating circumstances. 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 sentence imposed is within the parameters provided by the relevant statutes, see NRS 193.130(2)(c); NRS 201.553(1)(a), and Aquino does not allege that those statutes are unconstitutional. Further, in this matter, the granting of probation was discretionary. See NRS 176A.100(1)(c); Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987) (“The sentencing judge has wide discretion in imposing a sentence ․”). And nothing in the record indicates the district court did not consider Aquino's mitigation evidence. In addition, the district court did not need to follow the sentencing recommendation of the parties, see, e.g., Collins v. State, 88 Nev. 168, 171, 494 P.2d 956, 957 (1972), or articulate its reasons for the sentence it imposed, see Campbell v. Eighth Jud. Dist. Ct., 114 Nev. 410, 414, 957 P.2d 1141, 1143 (1998). Having considered the sentence and the offense, we conclude the sentence imposed is not grossly disproportionate to the offense and does not constitute cruel and unusual punishment.

A review of the record on appeal reveals that the judgment of conviction contains a clerical error. It incorrectly states that Aquino was convicted pursuant to a guilty plea. Aquino entered a no contest plea in this case. Because the district court has the authority to correct a clerical error at any time, see NRS 176.565, we direct the district court, upon remand, to enter a corrected judgment of conviction accurately reflecting Aquino's no contest plea. Accordingly, we

ORDER the judgment of conviction AFFIRMED and REMAND to the district court for the limited purpose of correcting the judgment of conviction.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   The parties jointly recommended probation with an underlying suspended prison sentence of 1 to 3 years. Further, the parties agreed that, if Aquino successfully completed probation, the State would allow Aquino to withdraw his plea and enter a guilty plea to “a lesser allegation Conspiracy to Unlawfully Communicate between Person of Authority and Pupil, a gross misdemeanor offense with credit for probation already completed.”