KASHON GLASS v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a guilty plea, of robbery with the use of a deadly weapon, voluntary manslaughter, and residential burglary. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.

Appellant Kashon Glass pleaded guilty to robbery with the use of a deadly weapon, voluntary manslaughter, and residential burglary. In his plea agreement, Glass waived his “right to appeal the conviction or resulting sentence” and acknowledged that “I understand this means I am unconditionally waiving my right to a direct appeal of this prosecution, conviction, or any aspect of the resulting sentence, including any challenge based upon reasonable constitutional ․ or other grounds.”

The district court sentenced Glass to 20 to 50 years in the aggregate for the three convictions. Glass appeals, arguing the district court based its sentence on the prosecutor's incorrect statement that Glass had sex trafficked his co-defendant, and that the prosecutor's comments constituted prosecutorial misconduct. He also argues his sentence is so grossly disproportionate to both his involvement in the crimes and to his codefendant's sentence (8 to 20 years in the aggregate) as to violate the Eighth Amendment.

The State moved to dismiss this appeal as precluded by the appeal waiver in the plea agreement. This court denied the motion without prejudice, deferring the issue to the merits panel. In its brief, the State again argues that, by the terms of the plea agreement, Glass waived the right to appeal his conviction or his sentence. Citing NRS 176.555, Glass replies that the court may correct an illegal sentence at any time.

A defendant's knowing and voluntary waiver in a plea agreement of his appellate rights is generally valid and enforceable. See Burns v. State, 137 Nev. 494, 499-500, 495 P.3d 1091, 1099-1100 (2021) (enforcing waiver unless it would cause a “miscarriage of justice”); see also Aldape v. State, 139 Nev. 388, 389, 535 P.3d 1184, 1188 (2023) (discussing the criteria used to evaluate an appeal waiver in a plea agreement). Though a “court may correct an illegal sentence at any time,” NRS 176.555, the proper vehicle for contesting an illegal sentence is through a motion to the district court. Edwards v. State, 112 Nev. 704, 707-08, 918 P.2d 321, 324 (1996). Further, a motion to correct an illegal sentence presupposes a valid conviction and cannot be used to challenge alleged errors occurring at trial or during sentencing. Id. at 708, 918 P.2d at 324.

Glass does not challenge the validity of his appeal waiver, nor argue that his sentence falls outside the statutory maximum. See id. (describing an illegal sentence as one imposed in excess of the statutory maximum); NRS 200.380(2) (statutory maximum for robbery); NRS 200.080 (statutory maximum for voluntary manslaughter); NRS 205.060(2)(d) (statutory maximum for residential burglary); NRS 193.165 (statutory maximum for a weapon enhancement). Instead, he argues his sentence is illegal because it violates the Eighth Amendment, and that it also violates due process because it was erroneously based on the prosecutor's false statements of Glass's criminal history. But Glass's plea agreement bars his arguments, most of which concern errors occurring at sentencing and, as such, cannot be used to support a motion to correct an illegal sentence. Edwards, 112 Nev. at 708, 918 P.2d at 324. Moreover, Glass should have first raised the legality of his sentence in a motion before the district court. Id.

Procedural errors aside, and without deciding whether Glass may challenge the constitutionality of his sentence on direct appeal despite his waiver, cf. United States v. Wells, 29 F.4th 580, 584 (9th Cir. 2022) (holding that an appeal waiver does not apply to unconstitutional sentence), we note Glass's constitutional arguments are meritless. The evidence showed Glass's involvement in and control over the underlying crimes, and that he has an extensive history of violent crime and recidivism undeterred by his prior sentences. The record demonstrates the district court focused on these facts, which support the sentence here and belie Glass's claims that his sentence violates the Eighth Amendment and due process. See Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (explaining that, regardless of severity, a sentence that is 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” quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); State v. Eighth Jud. Dist. Ct., 100 Nev. 90, 96-97, 677 P.2d 1044, 1048-49 (1984) (explaining that mistakes occurring during sentencing violate due process only where they create a materially untrue assumption about the defendant's record that works to the defendant's extreme detriment). Moreover, the record shows the prosecutor's statement was corrected during the sentencing hearing, and the record does not support Glass's argument that the district court based its sentencing decision on that statement or that it otherwise worked to his extreme detriment. See State, 100 Nev. at 96-97, 677 P.2d at 1048-49; cf. Townsend v. Burke, 334 U.S. 736, 741 (1948) (finding a due process violation based on “the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct”). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Pickering, J.

Cadish, J.

Lee, J.