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State v. Second Judicial District Court of State

Supreme Court of Nevada

July 19, 2018

THE STATE OF NEVADA, Petitioner,
v.
THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE WILLIAM A. MADDOX, Respondents, and JOHN THOMAS KEPHART, Real Party in Interest.

          Original petition for a writ of mandamus in a criminal matter. Petition granted.

          Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Joseph R, Plater, Deputy District Attorney, Washoe County, for Petitioner.

          Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Real Party in Interest.

          BEFORE PICKERING, GIBBONS and HARDESTY, JJ.

          OPINION

          PICKERING, J.

         Nevada 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.

         Kephart 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 case.

         I.

         Kephart 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)."

         Kephart's 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).[1]

         Kephart 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.[2] Initially, Kephart pleaded not guilty.

          Later, 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 community service.

         The 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 acknowledged that:

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.

(emphasis added).

         Kephart's 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 ...


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