MARTIN v. STATE (2021)

ORDER OF AFFIRMANCE

First, Martin argues his guilty plea was invalid because he did not understand the elements of the offense and that a felony conviction would cause him to lose the right to bear arms. Generally, this court will not consider a challenge to the validity of a guilty plea on direct appeal from a judgment of conviction, Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986), as limited by Smith v. State, 110 Nev. 1009, 1010-11 n.1, 879 P.2d 60, 61 n.1 (1994). “Instead, a defendant must raise a challenge to the validity of his or her guilty plea in the district court in the first instance.” Id.; see also Smith, 110 Nev. at 1010-11 n.1, 879 P.2d at 61 n.1 (stating that unless error clearly appears from the record, a challenge to the validity of a guilty plea must first be raised in the district court in a motion to withdraw guilty plea or a postconviction petition for a writ of habeas corpus). Martin does not claim that he previously raised a challenge to the validity of his plea in the district court, and the alleged errors do not clearly appear in the record. Therefore, we decline to consider Martin's claims.

Second, Martin argues NRS 484C.400(1)(c) is unconstitutional because it permits the State to enhance a DUI charge to a felony offense based upon prior misdemeanor DUI convictions that were not the result of a jury trial. We review the constitutionality of statutes de novo. Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006). “Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional.” Tam v. Eighth Judicial Dist. Court, 131 Nev. 792, 796, 358 P.3d 234, 237-38 (2015) (internal quotation marks omitted). “In order to meet that burden, the challenger must make a clear showing of invalidity.” Id. at 796, 358 P.3d at 238 (internal quotation marks omitted).

NRS 484C.400(1)(c) permits a current DUI to be charged as a felony offense based upon a defendant's prior misdemeanor DUI convictions. In this matter, Martin was charged pursuant to NRS 484C.400(l)(c) with felony DUI based upon his prior misdemeanor DUI convictions, and he pleaded guilty to committing felony DUI. Martin contends that only prior convictions obtained through a jury trial can be used to enhance a sentence. In support, Martin relies upon Apprendi v. New Jersey, 530 U.S. 466, 496 (2000), and Jones v. United States, 526 U.S. 227, 249 (1999). These cases are unequivocal: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added); accord Jones 526 U.S, at 243 n.6. Martin points to excerpts from these cases stating that prior convictions are established by jury trial. See Apprendi, 530 U.S. at 490; Jones, 526 U.S. at 249. The portions of the cases from which the excerpts were taken merely explained one reason why recidivism is treated differently from all other considerations that could enlarge a sentence. See Apprendi, 530 U.S, at 496 (explaining primarily that recidivism “does not relate to the commission of the offense itself” (internal quotation marks omitted)); Jones, 526 U.S. at 249 (describing due process protections that include the right to a jury trial as “one basis” to justify the distinction). Martin thus has not demonstrated that only prior convictions that were subject to a jury trial may be considered when enhancing a sentence due to recidivism and, in turn, that NRS 484C.400(l)(c) is facially unconstitutional.¹ Therefore, we conclude Martin is not entitled to relief on this claim and we

ORDER the judgment of conviction AFFIRMED.

FOOTNOTES

1.   Martin also refers several times to Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he does not offer any citations to the case that support what he claims the case stands for. Rather, like the petitioner in Almendarez-Torres, Martin admitted his recidivism at the time he pleaded guilty. For these reasons, Martin fails to demonstrate that Almendarez-Torres supports his claim.