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Mullner v. State

Supreme Court of Nevada

December 7, 2017

TROY LEE MULLNER, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal under NRAP 4(c) from a judgment of convietion, pursuant to guilty plea, of burglary, two counts of robbery, coercion, two counts of burglary while in possession of a deadly weapon, two counts of robbery with use of a deadly weapon, attempted burglary, and possession of a firearm by ex-felon. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

          Jean J. Schwartzer, Las Vegas, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jonathan VanBoskerck, Chief Deputy District Attorney, Clark County, for Respondent.

          BEFORE DOUGLAS, GIBBONS and PICKERING, JJ.

          OPINION

          PICKERING, J.

         Appellant Troy Lee Mullner appeals his convictions for burglary, robbery, coercion, burglary while in possession of a deadly weapon, robbery with use of a deadly weapon, attempted burglary, and possession of a firearm by an ex-felon. We affirm.[1]

         Milliner's Sentence as an Habitual Criminal

         Mullner argues that the district court should not have considered his prior conviction from 1984 in sentencing him as an habitual criminal because the conviction is stale and stems from an offense he committed as a minor. Mullner also asks this court to adopt a rule prohibiting a district court from considering juvenile offenses charged up to adult convictions in habitual criminal sentencing, a rule he contends is supported by State v. Javier C., 128 Nev. 536, 289 P.3d 1194 (2012). We review a trial court's adjudication of a defendant as an habitual criminal under an abuse-of-discretion standard. See Sessions u. State, 106 Nev. 186, 190, 789 P.2d 1242, 1244 (1990).

         Milliner's Previous Convictions Were Not Stale

         A district court may disregard prior convictions that are stale, trivial, or where habitual criminal adjudication "would not serve the purposes of the statute or the interests of justice." Id. at 190, 789 P.2d at 1244 (quoting French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982)) (reversing habitual criminal conviction where a defendant's prior felony convictions were 23 to 30 years old and for non-violent crimes). Mullner's three prior convictions span a period of 30 years, and are all for violent crimes. Further, Mullner's oldest convictions were for burglary and robbery, the same offenses he most recently committed. Thus, unlike Sessions, Milliner's prior convictions indicate he is a "career criminal[ ] who pose[s] a serious threat to public safety." Id. at 191, 789 P.2d at 1245. Accordingly, the district court did not abuse its discretion in rejecting Mullner's argument that his 1984 conviction was too stale to use for habitual criminal sentencing.

         Mullner's Prior Conviction Resulting From an Offense Committed as a Minor Could Be Used for Habitual Criminal Sentencing

         The district court did not abuse its discretion in using Mullner's charged-up conviction for habitual criminal sentencing. When a juvenile is convicted and sentenced as an adult, that conviction can enhance a defendant's punishment as an habitual criminal, provided the court had general jurisdiction to sentence the juvenile as an adult. 24 C.J.S. Criminal Procedure and Rights of Accused § 2462 (2016); see also United States v. Graham, 622 F.3d 445, 455-61 (6th Cir. 2010) (juvenile conduct for which the accused was charged and sentenced as an adult used as a prior felony for third strike); Womack v. State, Docket No. 61127 (Order of Affirmance, February 13, 2013) (prior felony conviction committed as a juvenile used for habitual criminal sentencing).

         Mullner's argument that our decision in State v. Javier C. supports a rule prohibiting the use of such convictions in habitual criminal sentencing is unpersuasive. In Javier C, the court held that the criminal statute for battery committed by a prisoner, NES 200.48 l(2)(f), did not apply to an adjudicated juvenile delinquent because he was not a "prisoner" under the definition of NRS 193.022, which requires custody in the criminal context, and neither juvenile justice proceedings nor a delinquent adjudication are criminal in nature. 128 Nev. at 539-41, 289 P.3d at 1196-97. Here, the habitual criminal statute applies to a defendant previously convicted of "[a]ny felony, " without regard for whether the conviction could have been (but was not) pursued as a juvenile offense. NRS 207.010(1)(b). A statute's plain meaning controls its interpretation, see Bergna v. State, 120 Nev. 869, 873, 102 P.3d 549, 551 (2004), and we find no ambiguity in the habitual criminal statute that would support reading it as Mullner asks us to do. Accordingly, we decline to adopt a ruling prohibiting a district court from considering felony convictions originating from juvenile offenses in habitual criminal sentencing.

         Mullner s Sentence Does Not Violate ...


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