WESLEY v. STATE (2022)

ORDER OF AFFIRMANCE

In his petition, Wesley challenged the jury instructions given at trial and the imposition of the deadly weapon enhancement. A person “may prosecute a writ of habeas corpus to inquire into the cause of [his] imprisonment or restraint.” NRS 34.360. The cause of Wesley's imprisonment, as reflected in the record before this court, is an October 8, 2008, amended judgment of conviction of conspiracy to commit burglary, conspiracy to commit robbery, first-degree kidnapping, coercion with the use of a deadly weapon, open or gross lewdness with the use of a deadly weapon, two counts each of burglary while in possession of a firearm and assault with the use of a deadly weapon, four counts of robbery with the use of a deadly weapon, and five counts of sexual assault with the use of a deadly weapon. Wesley's claims were not within the scope of a petition for a writ of habeas corpus filed pursuant to NRS 34.360. Therefore, we conclude the district court did not err by denying Wesley's petition.¹

On appeal, Wesley first claims the district court abused its discretion when it resolved Wesley's petition at a hearing that was outside his presence. Because no argument or evidence was taken at the hearing on the petition, we conclude the district court did not err by denying the petition at the hearing without having Wesley present. Cf. Gebers v. State, 118 Nev. 500, 504, 50 P.3d 1092, 1094-95 (2002) (concluding a petitioner's statutory rights were violated when she was not present at a hearing where testimony and evidence were presented).

Wesley next claims the district court erred by failing to consider his reply brief. To the extent this was error, Wesley's claims were outside the scope of a petition filed pursuant to NRS 34.360, and any error was thus harmless. Therefore, we conclude Wesley is not entitled to relief as to this claim. See NRS 178.598 (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   The district court construed Wesley's petition to be a postconviction petition for a writ of habeas corpus filed pursuant to NRS 34.720 through NRS 34.830. We conclude this was error because Wesley's petition specifically stated he was seeking relief pursuant to NRS 34.360, not the postconviction provisions. Nevertheless, we affirm for the reasons stated herein. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (holding a correct result will not be reversed simply because it is based on the wrong reason).