petition for a writ of mandamus challenging a district court
order denying a petition filed by the Nevada Board of Parole
Commissioners pursuant to NRS 176.033(2).
D. Ford, Attorney General, and Kathleen M. Brady, Deputy
Attorney General, Carson City, for Petitioner.
D. Ford, Attorney General, Theresa Haar, Senior Deputy
Attorney General, and Tiffany E. Breinig, Deputy Attorney
General, Carson City, for Respondents.
Thompson, Yerington, in Pro Se.
Christopher Hicks, District Attorney, and Jennifer P. Noble,
Chief Appellate Deputy District Attorney, and Marilee Cate,
Deputy District Attorney, Washoe County, for Amicus Curiae
Washoe County District Attorney.
THE COURT EN BANC.
Nevada Board of Parole Commissioners currently has authority
under NRS 176.033(2) to ask the district court to modify a
parolee's sentence after the parolee has served a
specified amount of time on parole. If the district court
determines there is good cause after hearing the Parole
Board's recommendation, the court may reduce the
parolee's sentence to not less than the minimum provided
by the applicable penal statute. The primary question
presented by this original proceeding is this: What is the
minimum term or limit for purposes of NRS 176.033(2) when the
applicable penal statute only provided for a life sentence
either with or without the possibility of parole? We conclude
that in that circumstance, the parole eligibility term
prescribed by the penal statute sets the limit for reducing
the life sentence under NRS 176.033(2). Because the district
court relied on a misunderstanding of the law in denying the
Parole Board's petition under NRS 176.033(2), we grant
the Parole Board's petition for a writ of mandamus.
AND PROCEDURAL HISTORY
1979, Marlin Thompson was sentenced to a term of 15 years for
attempted murder, to run consecutive with a
term of life with the possibility of parole for the
crime of first-degree murder. Thompson was granted parole on
the life sentence in January 1990 and on the attempted-murder
sentence in 1992. He was released from prison in July 1992
and has remained on parole since that time.
September 11, 2017, pursuant to NRS 176.033(2), the Parole
Board filed a petition for modification of Thompson's
sentence. The Washoe County District Attorney's Office
opposed the petition, arguing that the minimum term for
first-degree murder prescribed by NRS 200.030 at the time of
Thompson's offense was a life term because the statute
only permitted life sentences and therefore the court could
not reduce Thompson's maximum term. The district court
agreed with the District Attorney's Office and denied the
Parole Board's petition. Subsequently, the Parole Board
filed a notice of appeal from the district court's order,
as well as a petition for a writ of mandamus challenging the
district court's decision. Having dismissed the appeal
for lack of jurisdiction, Bd. of Parole Comm'rs v.
State, Docket No. 75799 (Order Dismissing Appeal,
October 12, 2018), we now consider whether to entertain the
of mandamus is available to compel the performance of an act
that the law requires or to control an arbitrary or
capricious exercise of discretion. NRS 34.160; Int'l
Game Tech., Inc. v. Second Judicial Dist. Court, 124
Nev. 193, 197, 179 P.3d 556, 558 (2008); see also
Humphries u. Eighth Judicial Dist. Court, 129
Nev. 788, 791, 312 P.3d 484, 486 (2013).
a mandamus petition will be considered is within our sole
discretion. Smith v. Eighth Judicial Dist. Court,107 Nev. 674, 677, 818 P.2d 849, 851 (1991); see also
Libby v. Eighth Judicial Dist. Court,130 Nev. 359, 363,
325 P, 3d 1276, 1278 (2014). Before deciding whether to
exercise that discretion, we consider
respondents' argument that we should ...