McDaniel (Kenjuan) v. State

The district court did not abuse its discretion by not appointing a guardian ad litem for McDaniel McDaniel argues that because he was an infant at the time of his trial, the district court abused its discretion by failing to appoint a guardian ad litem. 2 "Any court of competent jurisdiction may appoint. . . [g]uardians ad litem." MRS 159.0487(5). Although there are no statutory provisions specifically governing the appointment of a guardian ad litem in Nevada criminal law, Nevada civil law allows for the appointment of a guardian ad litem where the defendant is an infant, insane, or incompetent. See NRCP 17(c) ("The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action . ."); see also NRS 65.010 (indicating that a guardian ad litem is appointed for an infant or insane or incompetent person); Baker v. Baker, 59 Nev. 163, 172, 87 P.2d 800, 803 (1939) (stating that the chief purpose of the guardian ad litem statute is to "protect infants, insane persons, and incompetents"), modified on other grounds on reh'g, 59 Nev. 163, 179, 96 P.2d 200, 200-01 (1939). While McDaniel argues that he should have been appointed a guardian ad litem, and civil law permits courts to appoint one for an infant, insane, or incompetent person, see NRCP 17(c); see also 65.010, no

such analogue exists in Nevada criminal law. Therefore, the district court did not abuse its discretion when it failed to appoint one in this case. McDaniel's sentence was not cruel and unusual "A sentence does not constitute cruel and unusual punishment unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience." CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979). Here, McDaniel pleaded guilty to robbery and conspiracy to commit robbery and received a sentence that was within the statutory parameters for those crimes. Because McDaniel's sentence does not shock the conscience, it does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. The district court did not abuse its discretion by relying on highly suspect or impalpable evidence during sentencing "[A]n abuse of discretion will be found when the defendant's sentence is prejudiced from consideration of information or accusations founded on impalpable or highly suspect evidence." Goodson v. State, 98 Nev. 493, 495-96, 654 P.2d 1006, 1007 (1982). In sentencing McDaniel, the district court relied on evidence that included statements made to police by eyewitnesses that supported a finding that McDaniel used a gun in the commission of the crimes. Because McDaniel has not demonstrated that these statements are highly suspect or impalpable, the district court did not abuse its discretion by relying on them during sentencing.

Conclusion McDaniel failed to demonstrate that his due process rights were violated or that the district court abused its discretion. We therefore ORDER the judgment of the district court AFFIRMED.

0:4itc Saitta J.

9:14 Gibbons J.

J. Pickering

cc: Eighth Judicial District Court Dept. 15 Law Office of Kristina Wildeveld Attorney GenerallCarson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A 001414

Footnotes

[2] McDanier s attorney contends that she requested to withdraw as counsel and be appointed as guardian ad litem. However, the record does not show that McDaniel's attorney attempted to withdraw as counsel and/or be appointed guardian ad litem or that the district court ruled on such a motion. SUPREME COURT OF NEVADA 2 (0) 1947A aego SUPREME COURT OF NEVADA 3 (0) [947A