Hodges (Steven) v. State

Second, Hodges contends that the district court abused its discretion by adjudicating him as a habitual criminal and imposing a disproportionate sentence which shocks the conscience. We disagree. The district court has broad discretion to dismiss a count of habitual criminality. See NRS 207.010(2); O'Neill v. State, 123 Nev. 9, 12, 153 P.3d 38, 40 (2007). Our review of the record reveals that the district court understood its sentencing authority and considered the appropriate factors prior to making its determination to adjudicate Hodges as a habitual criminal. See Hughes v. State, 116 Nev. 327, 333, 996 P.2d 890, 893 (2000); see also NRS 207.016(5); O'Neill, 123 Nev. at 15-16, 153 P.3d at 42-43 (once a district court declines to exercise its discretion to dismiss an allegation of habitual criminality, the only factual findings the judge may then make must relate solely to the existence and validity of the prior convictions). We conclude that the district court did not abuse its discretion by adjudicating Hodges as a habitual criminal. Additionally, Hodges has not alleged that the district court relied solely on impalpable or highly suspect evidence or demonstrated that the sentencing statute is unconstitutional. See Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 489-90 (2009). Hodges' prison term of 10-25 years falls within the parameters provided by the relevant statute, see NRS 207.010(1)(b)(3), and is not so unreasonably disproportionate to the gravity of the offense and his history of recidivism as to shock the SUPREME COURT OF NEVADA 2 (0) 1947A conscience, CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979); see also Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion). We conclude that the district court did not abuse its discretion at sentencing. Parrish v. State, 116 Nev. 982, 989, 12 P.3d 953, 957 (2000). Accordingly, we ORDER the judgment of conviction AFFIRMED. Gibbons J. Douglas cc: Hon. Elliott Sattler, District Judge Janet S. Bessemer Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk SUPREME COURT OF NEVADA 3 (0) 1947A