SCOTT MURRAY JOHNSTONE v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Scott Murray Johnstone appeals from a judgment of conviction, entered pursuant to a guilty plea, of owning or possessing a firearm by a prohibited person. Second Judicial District Court, Washoe County; David A. Hardy, Judge.

Johnstone argues he should have been awarded an additional 119 days of presentence credit. Johnstone committed the instant crime while on parole for another crime. While awaiting resolution of the instant case, Johnstone was returned to the Nevada Department of Corrections’ custody for a parole revocation hearing. Johnstone's parole was revoked for 102 days, and then he was re-released on parole. Johnstone could not afford bail on the instant case and spent 119 days in jail before the sentence for his previous conviction expired. After the sentence for his previous conviction expired, he spent 231 days in jail on the instant case before he was sentenced. The district court awarded Johnstone 231 days of credit for time served and denied his request to credit him an additional 119 days for the time spent in jail that encompassed his previous conviction.

Johnstone contends his equal protection rights were violated because a similarly situated person—a person who was re-released on parole, who was awaiting trial on new charges, but who could afford bail—would have been out of custody pending the new charges while he remained in custody. Thus, he argues he should have received presentence credit in the instant case for the time spent in jail while he was paroled but unable to afford bail on the instant case.

“The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law.” Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000). “The threshold question in equal protection analysis is whether a statute effectuates dissimilar treatment of similarly situated persons.” Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d 812, 817 (2005).

Johnstone argues that, based on Kuykendall v. State, 112 Nev. 1285, 1286, 926 P.2d 781, 782 (1996), his inability to post bail demonstrated an equal protection violation and he is entitled to presentence credits toward the instant case. We disagree. In Gaines, the Nevada Supreme Court rejected a similar argument and stated that while “NRS 176.055 should be read broadly to provide credit for confinement in instances where a defendant is financially unable to post bail to prevent an equal protection violation’’ the holding in Kuykendall was not “intended to alter the unequivocal prohibition of incarceration credit set forth in NRS 176.055(2)(b)”. 116 Nev. at 365-66, 998 P.2d at 170. Thus, Johnstone fails to demonstrate he is entitled to relief.

Moreover, Johnstone fails to demonstrate he was treated differently than similarly situated persons when the district court denied his requested presentence credit. NRS 176.055(2)(b) does not allow a person on parole who commits a subsequent offense to receive presentence credit toward a subsequent sentence for any time in confinement that was within the period of the prior sentence:

A defendant who is convicted of a subsequent offense which was committed while the defendant was: (b) Imprisoned in a county jail or state prison or on probation or parole from a Nevada conviction is not eligible for any credit on the sentence for the subsequent offense for the time the defendant has spent in confinement which is within the period of the prior sentence, regardless of whether any probation or parole has been formally revoked.

The 119 days sought by Johnstone was within the period of his prior sentence, and that time spent in jail was credited toward Johnstone's previous case. Johnstone fails to point to a similarly situated person, i.e., a parolee who committed a subsequent offense, who received presentence credit toward a subsequent sentence for time spent in custody that was within the period of the prior sentence. Thus, he fails to meet his threshold burden that the statute treats similarly situated persons differently and, therefore, fails to demonstrate the equal protection clause is implicated. Accordingly, we conclude Johnstone fails to demonstrate he is entitled to additional presentence credits, and we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.