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Bowser v. State

Supreme Court of Nevada

May 16, 2019


          Appeal from a judgment of conviction, pursuant to a jury verdict, of voluntary manslaughter with use of a deadly weapon; discharging firearm out of a motor vehicle; and discharging firearm into structure, vehicle, aircraft or watercraft. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

          Resch Law, PLLC, dba Conviction Solutions, and Jamie J. Resch, Las Vegas, for Appellant.

          Aaron Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jacob J. Villani, Ryan J. MacDonald, and Charles W. Thoman, Deputy District Attorneys, Clark County, for Respondent.



          HARDESTY, J.

         Appellant Terrence Bowser successfully appealed his first conviction and received a new trial and sentencing hearing before a new district court judge. After the second trial, the judge imposed a longer sentence on some of the counts than had the original trial judge, which Bowser claims is a due process violation. In Holbrook v. State, 90 Nev. 95, 98, 518 P.2d 1242, 1244 (1974), we recognized that a presumption of vindictiveness arises where a judge imposes a more severe sentence after a new trial. The sole issue before us is whether this presumption of vindictiveness applies here, such that the imposition of this new sentence violated Bowser's due process rights. We hold that the presumption of vindictiveness does not apply when a different judge imposed the more severe sentence. Accordingly, we affirm the judgment of conviction.


         Following his first trial, Bowser was convicted of six counts: first-degree murder with the use of a deadly weapon (count 2), discharging a firearm out of a vehicle (count 4), discharging a firearm at or into a structure or vehicle (count 6), and three additional conspiracy charges. Bowser was sentenced to life in prison with the possibility of parole after 40 years. Specifically, the district court sentenced him to two consecutive terms of life with the possibility of parole after 20 years on the murder charge (count 2), 24 to 60 months on count 4, and 12 to 60 months on count 6, to run concurrent.

         Bowser appealed, and we reversed the judgment of conviction and remanded for a new trial because the bailiff improperly presented evidence to the jury. On remand, Bowser was tried again on the same 6 counts, but with a different district court judge presiding. This time, he was convicted of voluntary manslaughter with a deadly weapon (count 2) instead of first-degree murder. He was also convicted of the two discharging-a-firearm charges (counts 4 and 6), but was acquitted of the three conspiracy charges. The district court conducting the retrial sentenced him to 2 consecutive terms of 48 to 120 months on count 2, 48 to 120 months on count 4 to run consecutive to count 2, and 28 to 72 months on count 6 to run concurrent to count 4. His new total sentence was 30 years in prison with a minimum of 12 years for parole eligibility; In imposing the sentences, the district court stated that it took into account the evidence at trial, the jury verdict, the information in the presentence investigation report, the defense's mitigation arguments, and all of the information about what had happened since the previous trial. The district court provided no other explanation for the new sentence.

         Bowser appealed from the newly entered judgment of conviction, arguing that the sentences imposed for the discharging-a-firearm counts violated due process because they were harsher than the original sentences. The case was transferred to the court of appeals. In a split decision, the court of appeals affirmed Bowser's sentence. Bowser petitioned for review under NEAP 40B, which we granted.


         Though district courts generally have significant discretion in sentencing, Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009), their sentencing decision must not be influenced by vindictiveness against the defendant, North Carolina v. Pearce, 395 U.S. 711, 723-26 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 798 (1989). A harsher sentence after a defendant successfully appeals his conviction presents a concern that the increase in sentence was motivated by vindictiveness on the part of the sentencing judge for the defendant's exercise of his right to appeal.[2] In Pearce, the United States Supreme Court explained, "Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725. And, because "the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id. To ensure the absence of vindictiveness as the reason for the harsher sentence, the Supreme Court announced in Pearce a presumption of vindictiveness that applies whenever a judge imposes a more severe sentence after a new trial. Id. at 726; see also Wasman v. United States, 468 U.S 559, 564-65 (1984). The presumption may only be overcome if the reasons for the more severe sentence affirmatively appear in the record and are "based upon objective information concerning identifiable conduct on the part of the defendant." Pearce, 395 U.S. at 726. In Holbrook, we applied this presumption of vindictiveness to conclude that a harsher sentence could not be imposed following a new trial where the record did not show identifiable conduct by the defendant that would justify a more severe sentence. 90 Nev. at 98, 518 P.2d at 1244.

         Bowser, relying on Holbrook, contends that the district court's failure to justify the harsher sentence on the record violated his due process rights. The State, on the other hand, urges this court to revisit and limit the holding of Holbrook in light of more recent Supreme Court jurisprudence clarifying the presumption of vindictiveness.

         Before addressing these arguments, however, we must first determine whether the sentence Bowser received on retrial is harsher than his original sentence, so as to trigger due process concerns. Bowser's aggregate total sentence on retrial decreased from the original aggregate sentence, but the individual sentences on the discharging-a-firearm counts increased in length and were also changed to run consecutive rather than concurrent. Thus, whether his sentence was increased depends on whether we look at the aggregate sentence or the individual sentence on each count. The ...

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