HAMPTON v. STATE (2021)

ORDER OF AFFIRMANCE

In his motion, Hampton contends the district court erred by denying his claim that his sentence should-be modified because the sentencing court relied on mistaken assumptions of fact that worked to his extreme detriment. As a general rule, the district court lacks jurisdiction to modify a sentence after the defendant has begun serving it. Staley v. State, 106 Nev. 75, 79, 787 P.2d 396, 398 (1990), overruled on other grounds by Hodges v. State, 119 Nev. 479, 484, 78 P.3d 67, 70 (2003). There are three exceptions to this rule. First, for reasons of due process, a district court may “correct, vacate or modify a sentence that is based on a materially untrue assumption or mistake of fact that has worked to the extreme detriment of the defendant.” Edwards v. State, 112 Nev. 704, 707, 918 P.2d 321, 324 (1996). Second, a district court has the inherent authority to correct a facially illegal sentence. Id. at 707-08, 918 P.2d at 324; see also NRS 176.555. And third, the district court may correct clerical mistakes in judgments at any time. NRS 176.565.

Hampton did not allege that his sentence was illegal or that there was a clerical mistake. Hampton argued only that the sentencing court's misapprehension of two facts prompted it to impose consecutive prison sentences “on otherwise probationable offenses.”¹

First, Hampton claimed the sentencing court improperly considered his arrest for ex-felon in possession of a firearm, because he was later acquitted of that crime. This court previously held that the sentencing court could have considered this arrest and noted the “general proposition that evidence of other criminal conduct not resulting in a conviction may be considered in imposing sentence,” Hampton v. State, No. 79683, 2020 WL 6955398 (Nev. Ct. App. Nov. 25, 2020) (Order of Affirmance) (quoting United States v. Weston, 448 F.2d 626, 633 (9th Cir. 1971)). This holding represents the law of the case and “cannot be avoided by a more detailed and precisely focused argument.” Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975). Therefore, we conclude the district court did not err by denying this claim.

Second, Hampton claimed the sentencing court improperly relied on its belief that he committed the instant robbery with a firearm despite the jury finding him not guilty of using a weapon during the robbery. A motion to modify sentence is limited to instances where “the mistaken sentence is the result of the sentencing judge's misapprehension of a defendant's criminal record.” Edwards, 112 Nev. at 707, 918 P.2d at 324 (internal quotation marks omitted) (emphasis in original). To the extent this was a misapprehension, it was not in regard to Hampton s criminal record and was, thus, outside the scope of a motion to modify sentence. Therefore, we conclude the district court did not err by denying this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   In light of the nature of the claims Hampton raised, the motion is properly construed as a motion to modify sentence.