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State, Board of Parole Commissioners v. Second Judicial District Court of State

Supreme Court of Nevada

October 24, 2019

THE STATE OF NEVADA BOARD OF PAROLE COMMISSIONERS, Petitioner,
v.
THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE CONNIE J. STEINHEIMER, DISTRICT JUDGE, Respondents, and MARLIN THOMPSON, Real Party in Interest.

         Original 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).

          Aaron D. Ford, Attorney General, and Kathleen M. Brady, Deputy Attorney General, Carson City, for Petitioner.

          Aaron D. Ford, Attorney General, Theresa Haar, Senior Deputy Attorney General, and Tiffany E. Breinig, Deputy Attorney General, Carson City, for Respondents.

          Marlin 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.

         BEFORE THE COURT EN BANC.

          OPINION

          CADISH, J.

         The 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.[1] 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.

         FACTS AND PROCEDURAL HISTORY

         In 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.

         On 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 mandamus petition.

         DISCUSSION

         A writ 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).

         Whether 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'[2] argument that we should ...


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