Original petition for a writ of mandamus in a criminal
matter. Petition granted.
Paul Laxalt, Attorney General, Carson City; Christopher J.
Hicks, District Attorney, and Joseph R, Plater, Deputy
District Attorney, Washoe County, for Petitioner.
T. Bosler, Public Defender, and John Reese Petty, Chief
Deputy Public Defender, Washoe County, for Real Party in
PICKERING, GIBBONS and HARDESTY, JJ.
law imposes increasingly serious penalties on repeat domestic
battery offenders. A first offense is a misdemeanor, while a
third domestic battery offense within seven years of the
first constitutes a felony. A jury convicted John Kephart of
domestic battery, his third such offense in seven years.
Kephart's second domestic battery conviction resulted
from a plea bargain by which Kephart pleaded guilty to and
was sentenced for a "first offense" domestic
battery. The district court has ruled that it will not
consider Kephart's second conviction at sentencing
because it would be unfair, given the earlier plea deal, to
use the second "first offense" conviction to
enhance Kephart's most recent offense to a felony.
received the benefit of his earlier plea deal when he was
given the shorter sentence and lower fine only available to a
first-time offender. Before entering his plea, Kephart signed
a written acknowledgment that, while he would be sentenced
for a "first offense," the State could use that
offense and any other prior offenses for enhancement purposes
should he commit another domestic battery within seven years.
Under these circumstances, using Kephart's two prior
"first offense" convictions to enhance his third
domestic battery conviction to a felony does not violate the
plea bargain by which the second conviction was obtained. We
therefore grant the State's petition for a writ of
mandamus and direct the district court to take both of
Kephart's prior convictions into account in imposing
sentence and entering the judgment of conviction in this
has three domestic battery convictions. The first conviction
dates back to May 2010, when Kephart pleaded no contest to
"Domestic Battery-1st-Offense." Kephart was
represented by counsel and signed an admonishment of rights
form in which he acknowledged that "the State will use
this conviction ... to enhance the penalty for any subsequent
offense." The form also set out the range of penalties
for a "Second Offense within 7 years (Misdemeanor)"
and a "Third Offense or any subsequent offense within 7
years (Category C felony)."
second conviction came two months later, in July 2010. Citing
the May 2010 conviction, the criminal complaint in the second
case charged Kephart with "domestic battery with one
prior conviction within the last seven years." A second
domestic battery offense in seven years remains a misdemeanor
but it carries a longer mandatory minimum term of
imprisonment (ten days instead of two days), a higher minimum
fine ($500 instead of $200), and more hours of community
service (100-200 hours instead of 48-120 hours) than a
"first offense" domestic battery conviction.
See NRS 2OO.485(1)(a), (b) (2015).
represented himself in the second case. He did so after being
advised of his constitutional rights and signing a written
waiver of the right to court-appointed counsel. Initially,
Kephart pleaded not guilty.
after the prosecutor amended the complaint by crossing out
the references to the May 2010 conviction and writing in
"1st" offense everywhere "2nd" offense
appeared, Kephart changed his plea from not guilty to guilty.
No transcript exists of the change-of-plea hearing, but the
district court minutes note the district attorney
"couldn't prove the prior domestic battery."
The district court accepted Kephart's guilty plea and
sentenced him to the statutory minimums applicable to a first
offense domestic battery-two days in jail with the remaining
28-day sentence suspended, a $200 fine, and 48 hours of
plea was not memorialized in a formal plea agreement.
Instead, Kephart signed and initialed an "admonishment
of rights" form like the one he signed in connection
with his May 2010 conviction. This form advised Kephart of
the rights he waived by pleading guilty and reminded him of
the increasingly severe sentences Nevada law imposes on
repeat domestic battery offenders. In signing, Kephart
I understand that the State will use this conviction, and
any other prior conviction from this or any other state
which prohibits the same or similar conduct, to enhance
the penalty for any subsequent offense.
third, and current, conviction came in January 2017, when the
jury found him guilty of one count of domestic battery. In
charging the offense, the State relied on Kephart's May
and July 2010 domestic battery convictions to enhance the
offense to a Category C felony. See NRS
2OO.485(1)(c). Kephart objected to the State using the July
2010 conviction for felony enhancement since the conviction
resulted from ...