Petition for Writ of Certiorari — Christopher Ryan Martin, Petitioner v. Nevada

Supreme Court briefMar 16, 2022

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CHRISTOPHER RYAN MARTIN,

Petitioner,

THE STATE OF NEVADA,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Nevada Supreme Court

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------MICHAEL D. PARIENTE, ESQ.

Counsel of Record

PARIENTE LAW FIRM, P.C.

3800 Howard Hughes Parkway

Suite 620

Las Vegas, NV 89169

702-966-5310

michael@parientelaw.com

JOHN G. WATKINS, ESQ.

PARIENTE LAW FIRM, P.C.

3800 Howard Hughes Parkway

Suite 620

Las Vegas, NV 89169

702-966-5310

johngwatkins@parientelaw.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED FOR REVIEW

Whether this Court should overrule AlmendarezTorres in light of Apprendi and its progeny.

II. Whether Nevada’s use of prior convictions for enhancement of penalties which did not have the

safeguard of a jury trial violates Apprendi and

runs afoul of the Sixth Amendment jury trial guarantee.

STATEMENT OF RELATED CASES

State v. Martin, No. C-18-336705-1, District Court,

Clark County, Nevada. Judgment (judgment of

conviction) entered January 29, 2021.

Martin v. State, No. 82498-COA, Court of Appeals

of the State of Nevada. Judgment (order of affirmance) entered September 13, 2021.

Martin v. State, No. 82498-COA, Court of Appeals

of the State of Nevada. Judgment (order denying

rehearing) entered October 20, 2021.

Martin v. State, No. 82498, Supreme Court of the

State of Nevada. Judgment (order denying petition for review) en banc entered January 27, 2022.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

STATEMENT OF RELATED CASES ..................

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

OPINIONS BELOW.............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS ...............................................................

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE WRIT............

II.

LIKE MCMILLAN AND HARRIS, ALMENDAREZ-TORRES’ REASONING HAS

BEEN ERODED BY APPRENDI AND ITS

PROGENY AND SHOULD BE OVERRULED ......................................................

a. Martin’s case is well suited for this Court

to reconsider Almendarez-Torres ..........

UNDER APPRENDI, NRS 484C.400(1)(c)

& (2)(b) IS UNCONSTITUTIONAL, “FACIALLY” OR “AS APPLIED,” BECAUSE

THE STATUTE ALLOWS THE JUDGE

TO ENHANCE MISDEMEANOR PENALTIES TO NON-PROBATIONABLE

FELONY PUNISHMENT USING PRIOR

CONVICTIONS OBTAINED WITHOUT

THE BENEFIT OF A JURY ...................... 14

TABLE OF CONTENTS – Continued

Page

a. Nevada does not allow jury trials for

misdemeanor DUI’s (Blanton, infra),

thus Martin’s two prior misdemeanor

convictions cannot lawfully be used as

sentencing factors by the Judge .......... 14

III.

THE NEVADA COURT OF APPEALS

OVERLOOKED A NUMBER OF SALIENT FACTS IN DENYING MARTIN RELIEF ........................................................... 23

CONCLUSION..................................................... 26

APPENDIX

Order of Affirmance dated September 13,

2021 .................................................................. App. 1

Order Denying Rehearing dated October 20,

2021 .................................................................. App. 5

Order Denying Petition for Review dated January 27, 2022 ................................................... App. 6

TABLE OF AUTHORITIES

Page

CASES

Alleyne v. United States, 570 U.S. 99, 133 S. Ct.

2151, 186 L.Ed.2d 314 (2013) ................... 6, 9, 10, 11

Almendarez-Torres v. United States, 523 U.S. 224,

118 S. Ct. 1219, 140 L.Ed.2d 350 (1998) ........ passim

Aguilar-Raygoza v. State, 127 Nev. 349, 255 P.3d

262 (2011) ................................................................25

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L.Ed.2d 435 (2000) ......................... passim

Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct.

2006, 32 L.Ed.2d 530 (1972) ............................. 17, 18

Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886,

26 L.Ed.2d 437 (1970) .............................................17

Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

253, 159 L.Ed.2d 403 (2004) ...................................11

Blanton v. N. Las Vegas, 489 U.S. 538, 109 S. Ct.

1289, 103 L.Ed.2d 550 (1989) ......................... passim

Cunningham v. California, 549 U.S. 270, 127

S. Ct. 856, 166 L.Ed.2d 856 (2007) .........................11

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.

1444, 20 L.Ed.2d 491 (1968) ......................... 7, 16, 17

Harris v. United States, 536 U.S. 545, 122 S. Ct.

2406, 153 L.Ed.2d 524 (2002) ....................... 6, 12, 13

In re Winship, 397 U.S. 368, 90 S. Ct. 1068, 25

L.Ed.2d 368 (1970) ....................................................7

Jones v. United States, 526 U.S. 227, 119 S. Ct.

1215, 143 L.Ed.2d 311 (1999) ......................... passim

TABLE OF AUTHORITIES – Continued

Page

Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2

L.Ed. 60 (1803) ........................................................15

McMillan v. Pennsylvania, 477 U.S. 79, 106

S. Ct. 2411, 91 L.Ed.2d 67 (1986) ............. 6, 8, 12, 13

Phipps v. State, 111 Nev. 1276, 903 P.2d 820

(1995) .......................................................................13

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 248, 153

L.Ed.2d 556 (2002) ..................................................11

Shepard v. United States, 544 U.S. 13, 125 S. Ct.

1254, 161 L.Ed.2d 205 (2005) ............... 11, 12, 20, 24

Southern Union Co. v. United States, 567 U.S.

343, 132 S. Ct. 2344, 183 L.Ed.2d 318 (2012) ........11

United States v. Booker, 543 U.S. 220, 125 S. Ct.

738, 160 L.Ed.2d 621 (2005) ...................................11

United States v. Haymond, ___ U.S. ___, 139

S. Ct. 2369, 204 L.Ed.2d 897 (2019) ............. 6, 10, 11

United States v. Tighe, 266 F.3d 1187 (9th Cir.

2001) ................................................................ passim

CONSTITUTIONAL PROVISIONS

U.S. Constitution

Sixth Amendment ........................................... passim

Fourteenth Amendment .................................. passim

STATUTES AND RULES

U.S. Supreme Court Rule 10(c) ....................................1

vii

TABLE OF AUTHORITIES – Continued

Page

28 U.S.C. Section 1257(a) .............................................2

NRS 484C.400 ....................................................... 14, 22

NRS 484C.400(1)(c) .................................. 14, 15, 22, 26

NRS 484C.400(1)(c) & (2)(b) ............................... passim

MISCELLANEOUS

Magna Carta .................................................................7

PETITION FOR WRIT OF CERTIORARI

Petitioner Christopher Martin (“Martin”) respectfully prays that a writ of certiorari issue to: (1) reconsider the continued vitality of Almendarez-Torres, 523

U.S. 224, 118 S. Ct. 1219, 140 L.Ed.2d 350 (1998) in

light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L.Ed.2d 435 (2000) and its progeny and (2)

review the Nevada Court of Appeals’ decision that all

prior convictions, contrary to Jones v. United States,

526 U.S. 227, 119 S. Ct. 1215, 143 L.Ed.2d 311 (1999)

and Apprendi, supra, whether subject to the procedural safeguards of a jury or not, can be used to increase Martin’s and any other defendant’s from a

misdemeanor sentence of a maximum six (6) months

incarceration (the maximum allowable penalty by a

jury verdict) to a non-probationable felony of a minimum mandatory of one (1) year to a maximum of six

(6) years in prison under NRS 484C.400(1)(c) & (2)(b).

Review should be granted under Supreme Court

Rule 10(c) because the Nevada Court of Appeals per

NRAP 40(a)(3) is the court of last resort here and has

decided an important federal question in a way that

conflicts with Jones, supra and Apprendi, supra.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Nevada Court of Appeals’ ORDER OF AFFIRMANCE in Martin gives rise to this Petition and is

reprinted in Appendix 1. See also Appendix 5 and Appendix 6.

---------------------------------♦---------------------------------

JURISDICTION

The jurisdiction of the Court is invoked pursuant

to 28 U.S.C. Sec. 1257(a). Certiorari is available for

“ . . . any right . . . claimed under the Constitution. . . .”

The date of the Nevada Court of Appeals’ decision

to be reviewed was entered September 13, 2021. See

Appendix 1. Martin’s request for rehearing before the

Court of Appeals and the Nevada Supreme Court were

denied on October 20, 2021 and January 27, 2022 respectively. Appendix 5; Appendix 6.

---------------------------------♦---------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

SIXTH AMENDMENT:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury. . . .”

FOURTEENTH AMENDMENT:

“Section I. All persons born or naturalized in

the United States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive and person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.”

NEVADA STATUTES:

NRS 484C.400(1)(c) & (2)(b);

484C.340, for a third offense within 7

years, is guilty of a category B felony and

shall be punished by imprisonment in the

state prison for a minimum term of not

less than 1 year and a maximum term of

not more than 6 years, and shall be further punished by a fine of not less than

$2,000 nor more than $5,000. An offender

who is imprisoned pursuant to the provisions of this paragraph must, insofar as

practicable, be segregated from offenders

whose crimes were violent and, insofar as

practicable, be assigned to an institution

or facility of minimum security.

2. An offense that occurred within 7

years immediately preceding the date of

the principal offense or after the principal

offense constitutes a prior offense for the

purposes of this section; * * * (b) when evidenced by a conviction, without regard to

the sequence of the offenses and convictions. The facts concerning a prior offense

must be alleged in the complaint, indictment or information, must not be read to

the jury or proved at trial but must be

proved at the time of sentencing and, if

the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the

grand jury.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Petitioner Martin (Martin) was charged with driving under the influence, having two (2) prior Nevada

misdemeanor DUI convictions. State Appeal Appendix

(SAA) 3-4; 15-16. Martin’s two (2) prior convictions

were no-jury judgments because Nevada misdemeanor

DUI’s do not trigger the constitutional right of trial by

jury. Blanton, infra. Martin pled guilty, a necessary requirement to apply for alcohol treatment, to the DUI

charge and was allowed to enter the treatment program in lieu of prison. SAA 5-23. After a misunderstanding regarding his obligation to install a breath

interlock device on his wife’s vehicle which he never

drove, Martin was terminated from the treatment program and adjudicated guilty of the DUI. Martin’s sentence was enhanced by the judge to a mandatory

prison term as a result of the two prior Nevada misdemeanor non-jury convictions. SAA 24-26. Martin was

sent to prison.

Martin appealed his conviction to the Nevada Supreme Court on several issues, including the issues

raised by Martin in this Court. Martin argued that

precedence from this Court precluded enhancement of

non-jury prior convictions. Appellant’s Opening Brief

(AOB) ps. 17-24. Martin also informed the court that

allowing the judge as opposed to a jury to enhance punishment was seriously questioned by this Court. AOB

n.34. After completion of the briefings by the parties,

the appeal was transferred to the Nevada Court of Appeals.

The Court of Appeals denied Martin’s enhancement issue stating,

Martin contends that only prior convictions

obtained through a jury trial can be used to

enhance a sentence. In support, Martin relies

on Apprendi v. New Jersey, 530 U.S. 466, 496

(2000), and Jones v. United States, 526 U.S.

227, 249 (1999). These cases are unequivocal:

“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury and proved beyond a

reasonable doubt.”

***

Martin thus has not demonstrated that only

prior convictions that were subject to a jury

trial may be considered when enhancing a

sentence due to recidivism. . . .

ORDER OF AFFIRMANCE (OOA) ps. 2-3 (italics original).

The Court of Appeals never mentioned the likelihood that Almendarez-Torres, infra was in danger of

being overruled by this Court based on Apprendi and

its progeny.

Martin’s request for rehearing by the Court of Appeals and review by the Nevada Supreme Court were

denied. Appendix 5 and 6. Martin now seeks relief in

this Court.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

LIKE MCMILLAN AND HARRIS,

ALMENDAREZ-TORRES’ REASONING HAS

BEEN ERODED BY APPRENDI AND ITS

PROGENY AND SHOULD BE OVERRULED.1

a. Martin’s case is well suited for this

Court to reconsider Almendarez-Torres.

Almendarez-Torres v. United States, 523 U.S. 224,

118 S. Ct. 1219, 140 L.Ed.2d 350 (1998) finding that

prior convictions are sentencing factors, thus allowing

judicial factfinding, has been eroded by Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d

435 (2000) and its progeny and, as suggested by some

Before Apprendi, the Supreme Court had held that facts elevating the minimum punishment need not be proven by the jury.

McMillan v. Pennsylvania, 477 U.S. at 79, 106 S. Ct. 2411, 91

L.Ed.2d 67 (1986); Harris v. United States, 536 U.S. 545, 122

S. Ct. 2406, 153 L.Ed.2d 524 (2002) (adhering to McMillan). Both

decisions were subsequently overruled as being in conflict with

Apprendi. Alleyne, 570 U.S. at 116, 133 S. Ct. 2163. See Haymond,

139 S. Ct. at 2378 discussing the overruling of McMillan and Harris by Alleyne.

members of this Court, should be overruled.2 The irreconcilable antagonism between “facts” and “sentencing

factors” centers around the Sixth and Fourteenth

Amendments guarantee of trial by jury. Apprendi invokes the jury trial right and Almendarez-Torres dispenses it.

The keystone of Apprendi is its preservation of the

constitutional right to be tried by a jury of peers – not

a judge. U.S. Const., Amend. VI; U.S. Const., Amend.

XIV. All elements constituting the offense must be submitted to the jury and proven beyond a reasonable

doubt. In re Winship, 397 U.S. 368, 90 S. Ct. 1068, 25

L.Ed.2d 368 (1970). The right to trial by jury extends

as far back as the Magna Carta in 1215 A.D.3 The

Court in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.

1444, 20 L.Ed.2d 491 (1968) stated, “[p]roviding an accused with the right to be tried by a jury of his peers

gave him an inestimable safeguard against the corrupt

or overzealous prosecutor and against the compliant,

biased or eccentric judge.” Id. 391 U.S. at 156, 88 S. Ct.

1451. Duncan further stated, “[b]ecause we believe

that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that

the Fourteenth Amendment guarantees a right of jury

trial in all criminal cases – were they to be tried in a

The makeup of the United States Supreme Court has

changed since Apprendi but the reasoning of Apprendi has remained intact.

Duncan, infra provides an excellent account of trial by jury

from the Magna Carta to our Declaration of Independence. Id. 391

U.S. at 151-152, 88 S. Ct. 1448-1449.

federal court would come within the Sixth Amendment

guarantee,” 391 U.S. at 149, 88 S. Ct. 1447, and “ . . .

must be respected by the States.” 391 U.S. at 156, 88

S. Ct. 1451 (emphasis added) (footnote omitted). Again,

Apprendi protects the jury trial right and AlmendarezTorres does not.

The erosion of Almendarez-Torres by Apprendi

and its progeny is directly related to AlmendarezTorres’ avoidance of the Sixth and Fourteenth Amendments jury trial guarantee by labeling prior convictions as “sentencing factors,” a term created in

McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411,

91 L.Ed.2d 67 (1986). Apprendi stated that in McMillan “ . . . this Court, for the first time, coined the term

‘sentencing factor’ to refer to a fact that was not found

by a jury but could affect the sentence imposed by the

judge.” Id. 530 U.S. 485, 120 S. Ct. 2360. Apprendi characterized Almendarez-Torres’ use of prior convictions

for enhancement as at best “an exceptional departure

from” historic sentencing practices, 530 U.S. at 487,

120 S. Ct. 2348, and observed that it is “arguable that

Almendarez-Torres was wrongly decided, and that a

logical application of our reasoning today should apply

if the recidivist issue were contested. . . .” Id. 530 U.S.

at 489-490, 120 S. Ct. 2348. Apprendi pointed out that

merely labeling facts as sentencing factors does not

necessarily make it so.

[T]he relevant inquiry is not one of form, but

of effect – does the required [judicial] finding

expose the defendant to a greater punishment

than that authorized by the jury’s guilty verdict?

Apprendi, 530 U.S. at 494, 120 S. Ct. 2348.

Apprendi recognized that lawmakers may very

well try to avoid the jury trial guarantee by merely labeling what really is an element of the offense as a

sentencing factor. But the Court noted that it would

not budge from protecting defendants from a State

“defin[ing] away facts necessary to constitute a criminal offense.” Id. 530 U.S. at 486, 120 S. Ct. 2360 (cites

omitted). Apprendi sees Almendarez-Torres as wrongly

decided because prior conviction enhancements are elements not sentencing factors. “When one considers

the question from this perspective [the effect of judicial

factfinding] it is evident why the fact of a prior conviction is an element under a recidivism statute.”

THOMAS, J., concurring, 530 U.S. at 521, 120 S. Ct.

2379.

Apprendi, unlike Almendarez-Torres, other than

its reluctant adoption of Almendarez-Torres’ holding, is

grounded in the long tradition of the English commonlaw and early American jurisprudence. The Court in

Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151,

186 L.Ed.2d 314 (2013) noted, “[c]onsistent with the

common-law and early American practice, Apprendi

concluded that any ‘facts that increase the prescribed

range of penalties to which a criminal defendant is exposed’ are elements of the crime.” Id. 570 U.S. at 111,

133 S. Ct. 2160. Almendarez-Torres considered whether

8 U.S.C. § 1326(b)(2) “ . . . defines a separate crime or

simply authorizes an enhanced penalty,” id. 523 U.S. at

226, 118 S. Ct. 1222, and held that the statute “simply

authorizes a court to increase the sentence for a recidivist . . . [and] does not define a crime.” Id. 523 U.S. at

226, 118 S. Ct. 1222. At common-law, recidivism was

included as an ingredient of the crime itself. The Court

in United States v. Haymond, ___ U.S. ___, 139 S. Ct.

2369, 204 L.Ed.2d 897 (2019) stated,

At common-law, crimes tended to carry with

them specific sanctions, and “once the facts of

the offense were determined by the jury, the

judge was meant simply to impose the prescribed sentence. Alleyne v. United States, 570

U.S. 99, 108, 133 S. Ct. 2151, 186 L.Ed.2d 314

(2013)”

Id. 139 S. Ct. at 2376.

Apprendi noted,

[t]here was no question of treating the statutory aggravating fact as merely a sentencing

enhancement – as a nonelement enhancing

the sentence of the common-law crime. The

aggravating fact was an element of a new, aggravated grade of the common-law crime

simply because it increased punishment of the

common-law crime.

Id. 530 U.S. at 506, 120 S. Ct. 2371.

***

As Justice SCALIA has explained, there was

a tradition of treating recidivism as an element. See Almendarez-Torres, 523 U.S. at

256-257, 261, 118 S. Ct. 1219 (dissenting opinion). That tradition stretches back to the earliest years of our Republic. . . .

Id. 530 U.S. at 506-507, 120 S. Ct. 2371 (cites omitted)

(THOMAS and SCALIA, JJ., concurring).

At common-law, all facts constituting the crime including sanctions such as recidivism were considered

elements to be proven by the jury. Almendarez-Torres

parts from the common-law and early American practices, unlike Apprendi which follows them.

Apprendi’s progeny undermines AlmendarezTorres. Apprendi has been applied to strike down mandatory sentencing systems at the state and federal

level. See Cunningham v. California, 549 U.S. 270, 127

S. Ct. 856, 166 L.Ed.2d 856 (2007); United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621

(2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

253, 159 L.Ed.2d 403 (2004); United States v. Haymond, ___ U.S. ___, 139 S. Ct. 2369, 204 L.Ed.2d 897

(2019). See also Ring v. Arizona, 536 U.S. 584, 122 S. Ct.

248, 153 L.Ed.2d 556 (2002) (imposition of death penalty based on judicial factfinding); Shepard v. United

States, 544 U.S. 13, 125 S. Ct. 1254, 161 L.Ed.2d 205

(2005) (sentencing court cannot examine police reports

to find generic burglary from guilty pleas). Apprendi’s

reasoning was extended to criminal fines in Southern

Union Co. v. United States, 567 U.S. 343, 132 S. Ct.

2344, 183 L.Ed.2d 318 (2012).

The Court in Alleyne v. United States, 570 U.S. 99,

116, 133, S. Ct. 2151, 2163, 186 L.Ed.2d 314 (2013)

overruled McMillan v. Pennsylvania, supra, and Harris

v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153

L.Ed.2d 524 (2002) as conflicting with Apprendi.

Almendarez-Torres’ finding that prior convictions

are sentencing factors, thus allowing judicial fact finding to increase punishment, has been irreconcilably

eroded by Apprendi and its progeny and, as suggested

by some members of this Court, should be overruled.

Almendarez-Torres, like Taylor, has been

eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the

Court now recognizes that AlmendarezTorres was wrongly decided. See 523 U.S.,

at 248-249, 118 S. Ct. 1219 (SCALIA, J., joined

by STEVENS, SOUTER, and GINSBURG, JJ.,

dissenting); Apprendi, supra, at 520-521, 120

S. Ct. 2348 (THOMAS, J., concurring). The

parties do not request it here, but in an

appropriate case, this Court should consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants

have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental “imperative that the

Court maintain absolute fidelity to the protections of the individual afforded by the notice,

trial by jury, and beyond-a-reasonable-doubt

requirements.” Harris v. United States, 536

U.S. 545, 581-582, 122 S. Ct. 2406, 153 L.Ed.2d

524 (2002) (THOMAS, J., dissenting).

Shepard v. United States, 544 U.S. 13, 28, 125 S. Ct.

1254, 1264, 161 L.Ed.2d 205 (2005) (emphasis added).

Martin’s case is appropriate for this Court to reconsider Almendarez-Torres.

Nevada’s DUI prior conviction enhancement law

[NRS 484C.400(1)(c) & (2)(b)], substantially following

Almendarez-Torres,4 allows judicial factfinding to increase a misdemeanor penalty from a maximum six (6)

months incarceration to felony penalties of a minimum

mandatory one-year to a maximum non-probationable

six (6) years in prison based on the judge’s finding of

two or more prior convictions. Martin’s sentence was

enhanced from a misdemeanor penalty to felony penalties by judicial factfinding of two Nevada misdemeanor convictions, offenses of which Martin did not

have jury trial protections.5 Nevada’s prior conviction

enhancement law is unsupportable under Apprendi

and its progeny. Therefore, as this Court did with

McMillan and Harris, and desired to do in Apprendi,

Nevada requires that prior convictions be set forth in the

formal accusation and proven beyond a reasonable doubt by the

judge. See NRS 484C.400(2)(b); Phipps v. State, 111 Nev. 1276,

1281, 903 P.2d 820, 823 (1995) (“Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt.”) However,

Nevada adopts Almendarez-Torres’ judicial factfinding of the

prior convictions.

The Court in Blanton v. N. Las Vegas, 489 U.S. 538, 109

S. Ct. 1289, 103 L.Ed.2d 550 (1989) held that Nevada defendants

charged with first or second misdemeanor DUI’s are not constitutionally entitled to trial by jury. However, Blanton explicitly reserved “whether a repeat offender facing enhanced penalties may

state a constitutional claim because of the absence of a jury trial

in a prior DUI prosecution.” Id. 489 U.S. at 545, n.12, 109 S. Ct.

1294, n.12. This issue is raised in Martin’s Paragraph II, infra.

Certiorari should be granted and Almendarez-Torres

overruled.

UNDER APPRENDI, NRS 484C.400(1)(c) &

(2)(b) IS UNCONSTITUTIONAL, “FACIALLY”

OR “AS APPLIED,” BECAUSE THE STATUTE

ALLOWS THE JUDGE TO ENHANCE

MISDEMEANOR PENALTIES TO NONPROBATIONABLE FELONY PUNISHMENT

USING PRIOR CONVICTIONS OBTAINED

WITHOUT THE BENEFIT OF A JURY.

a. Nevada does not allow jury trials for

misdemeanor DUI’s (Blanton, infra),

thus Martin’s two prior Nevada misdemeanor convictions cannot lawfully be

used as sentencing factors by the Judge.

NRS 484C.400 sets forth penalties for a core misdemeanor offense of NRS 484C.110 with enhanced

penalties of the core offense for prior convictions. The

statute treats prior offenses as sentencing factors as

opposed to elements of the offense. Section 2(b) of NRS

484C.400 states in pertinent part, “ . . . a prior offense

. . . must not be proved at trial but must be proved

at the time of sentencing. . . .” (emphasis added). It

is the judge, not the jury, who enhances punishment

for prior convictions.

NRS 484C.400(1)(c) enhances the penalties of the

core offense based on prior convictions. The core offense, a misdemeanor with a maximum period of six

(6) months incarceration, is enhanced to a felony “ . . .

punished by imprisonment in the state prison for a

minimum term of not less than 1 year and maximum

term of not more than 6 years . . . ” if the defendant

has two or more prior convictions. The enhanced penalty is a serious restraint on a defendant’s liberty and

subject to the guarantees under the Fourteenth

Amendment Due Process Clause. At issue here is NRS

484C.400(1)(c)’s failure to limit the use of prior convictions to those that were obtained through proceedings

that included the right to a jury trial. The statute’s failure to limit prior convictions to those obtained where

the defendant had a right to trial by jury runs afoul of

controlling United States Supreme Court case law and

the Sixth Amendment jury trial guarantee.

Almendarez-Torres v. United States, 523 U.S. 224,

118 S. Ct. 1219, 140 L.Ed.2d 350 (1998), Jones v.

United States, 526 U.S. 227, 119 S. Ct. 1215, 143

L.Ed.2d 311 (1999) and Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), requires that the use of prior convictions for enhancement must be limited to prior convictions that were

themselves obtained through proceedings that included the right to a jury trial.

A law repugnant to the United States Constitution

is null and void. Marbury v. Madison, 1 Cranch 137, 5

U.S. 137, 2 L.Ed. 60 (1803). See also U.S. Const., Art.

VI (“This Constitution, and the laws of the United

States which shall be made in Pursuance thereof . . .

shall be the supreme Law of the Land. . . .” Marbury’s

often quoted holding states, “ . . . that a law repugnant

to the constitution is void, and that courts, as well as

other departments, are bound by that instrument.” Id.

5 U.S. at 180. Under Apprendi and its progeny, not all

prior convictions can be used to enhance penalties –

only those priors that have been obtained with the procedural safeguards of a jury.

The Sixth Amendment right to a jury trial applies

to state prosecutions under the Fourteenth Amendment Due Process Clause. Duncan v. Louisiana, 391

U.S. 145, 88 S. Ct. 1444, 20 L.Ed.2d 491 (1968), stated,

[t]hose who wrote our constitutions knew

from history and experience that it was necessary to protect against unfounded criminal

charges brought to eliminate enemies and

against judges too responsive to the voice of

higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection

against arbitrary action. Providing an accused with the right to be tried by a jury

of his peers gave him an inestimable safeguard against the corrupt or overzealous

prosecutor and against the compliant,

biased, or eccentric judge. If the defendant

preferred the common-sense judgment of a

jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to

have it. Beyond this, the jury trial provisions

in the Federal and State Constitutions reflect

a fundamental decision about the exercise of

official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear

of unchecked power, so typical of our State and

Federal Governments in other respects, found

expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep

commitment of the Nation to the right of jury

trial in serious criminal cases as a defense

against arbitrary law enforcement qualifies

for protection under the Due Process Clause

of the Fourteenth Amendment, and must

therefore be respected by the States.

Id. 391 U.S. at 156, 88 S. Ct. 145 (emphasis added).

However, the Sixth Amendment right to a jury

trial has been limited to “serious” criminal prosecutions, such as the DUI offense in Martin’s case. See

Duncan, 391 U.S. 145, 160, 88 S. Ct. 1444, 1453 (1968);

Baldwin v. New York, 399 U.S. 66, 73, 90 S. Ct. 1886,

1890, 26 L.Ed.2d 437 (1970) and Blanton v. N. Las Vegas, 489 U.S. 538, 109 S. Ct. 1289 103 L.Ed.2d 550

(1989). It cannot be disputed that the absence of trial

by jury more often favors the prosecution and provides

less protection for defendants.6

“Where the accused cannot possibly face more than six

months imprisonment, we have held that these disadvantages,

onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive non-jury adjudications.” Baldwin, 399 U.S. at 73, 90 S. Ct. 1890 (emphasis

added). The Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct.

2006, 32 L.Ed.2d 530 (1972) noted that summary adjudications of

misdemeanors are “assembly-line” justice which are most often

unfair to those defendants. “The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation”

where defendants are “numbers on dockets, faceless ones to be

Martin’s Petition for a Writ of Certiorari is a challenge to the constitutionality of NRS 484C.400(1)(c) &

(2)(b) enhancing a subsequent misdemeanor to a nonprobationable felony based on prior misdemeanor convictions obtained without a jury. The Court in Blanton

v. N. Las Vegas, supra, held that Nevada defendants

who are charged with misdemeanor DUIs, first or second offense, are not constitutionally entitled to trial by

jury. However, Blanton, explicitly reserved “whether

a repeat offender facing enhancement penalties

may state a constitutional claim because of the

absence of a jury trial in a prior DUI prosecution.” Id. 489 U.S. at 545, n.12, 109 S. Ct. 1294, n.12

(emphasis added). The United States Supreme Court

now supports defendants on this issue. AlmendarezTorres v. United States, supra, Jones v. United States,

supra and Apprendi v. New Jersey, supra, requires that

the use of prior convictions for enhancement must be

limited to “prior convictions” that were themselves obtained through proceedings that included the right to

a jury trial. Cf. United States v. Tighe, 266 F.3d 1187,

1193 (9th Cir. 2001) (Tighe noted the constitutional

safeguards necessary for the use of prior convictions as

enhancements, one being the right to a jury trial.).7

processed and sent on their way. . . . Everything is rush, rush.”

Id. 407 U.S. at 34, 92 S. Ct. 2012. Summary adjudications are

widespread “ . . . regardless of the fairness of the result.” Argersinger, 407 U.S. at 34, 92 S. Ct. 2012. No doubt these are reasons

for Blanton’s, infra, reservation. Blanton, 489 U.S. at 545, n.12,

109 S. Ct. 1294, n.12.

Tighe is a juvenile case which is traditionally not characterized as a criminal prosecution, thus the Sixth Amendment

Almendarez-Torres held that prior convictions are

sentencing factors (as opposed to elements of the offense) to raise the maximum penalty of an offense.8

However, Almendarez-Torres does not support the position that all prior convictions can be used to enhance

punishment. Almendarez-Torres had the right to a

trial by jury on the prior convictions for aggravated felonies used by the Government for enhancement of penalties unlike Martin.

In Jones v. United States, supra, the Supreme

Court noted that, for constitutional purposes, recidivism was distinguishable from other facts that expand

the penalty range, and stated that the basis for this

distinction was because “unlike virtually any other

consideration used to enlarge the possible penalty for

an offense. . . . a prior conviction must itself have been

established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.”

guarantee of a jury trial is inapposite. However here, Tighe is instructive as to what prior convictions can be used to enhance punishment according to Almendarez-Torres, Jones and Apprendi.

Apprendi recognized that the prior conviction exception

first adopted in Almendarez-Torres was wrongly decided. Justice

Thomas who made the crucial fifth vote in the five (5) to four (4)

Almendarez-Torres majority, later recognized that his vote was

wrong. Apprendi telegraphed its disapproval of Almendarez-Torres’

“prior conviction exception” for enhancement and recognized the

issue was decided in error. Apprendi, 530 U.S. at 520-521, 120

S. Ct. 2378-2379. Apprendi, while criticizing Almendarez-Torres,

did not overrule the prior conviction exception because the defendant in Apprendi did not challenge it. Apprendi, 530 U.S. at

489, 120 S. Ct. 2362. Thus, Almendarez-Torres is now extremely questionable at best and reversal appears inevitable. Martin has fully addressed this issue in Paragraph 1, supra.

Id., 526 U.S. at 249, 119 S. Ct. 1228 (emphasis added).

The Tighe Court stated,

Thus, Jones’ recognition of prior convictions

as a constitutionally permissible sentencing

factor was rooted in the concept that prior

convictions have been, by their very nature,

subject to the fundamental triumvirate of procedural protections intended to guarantee the

reliability of criminal convictions: fair notice,

reasonable doubt and the right to a jury

trial.

Id. 266 F.3d at 1193. (emphasis added)

See also Justice O’Connor, with whom Justice

Kennedy and Justice Breyer dissented in Shepard v.

United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L.Ed.2d

205 (2005) (“ . . . Shepard’s prior convictions were

themselves ‘established through procedures satisfying

the fair notice, reasonable doubt, and jury trial guarantees. Jones, supra, at 249, 119 S. Ct. 1227.’ ”) (emphasis added). Shepard, 544 U.S. at 38, 125 S. Ct. 1270.

These three dissenting Justices recognized that the

prior convictions to be used for enhancement must

themselves have been obtained by a jury.

The Apprendi Court’s continued acceptance of the

Almendarez-Torres holding, however reluctantly so, regarding prior convictions was premised on sentenceenhancing prior convictions which were the product of

proceedings that afford crucial procedural protections,

particularly the right to a jury trial. Apprendi said,

“ . . . there is a vast difference between accepting the

validity of a prior judgment of conviction entered in a

proceeding in which the defendant had the right

to a jury trial and the right to require the prosecutor

to prove guilt beyond a reasonable doubt, and allowing

the judge to find the required fact under a lesser standard of proof.” Apprendi, 530 U.S. at 496, 120 S. Ct. 2366

(emphasis added).

Based on Jones and Apprendi, the “prior exception” to Apprendi’s general rule must be limited to

prior convictions that were themselves obtained

through proceedings that included the right to a jury

trial. See again, Tighe, 266 F.3d at 1194. When convictions are obtained without the Sixth Amendment protection of a trial by jury, the Due Process Clause of the

Fourteenth Amendment of the United States Constitution prohibits use of those prior convictions to enhance

a subsequent misdemeanor into a felony with a prison

term. NRS 484C.400(1)(c) & (2)(b) violates AlmendarezTorres, Jones and Apprendi.

NRS 484C.400(1)(c) & (2)(b) reads,

484C.340, for a third offense within 7 years, is

guilty of a category B felony and shall be punished by imprisonment in the state prison for

a minimum term of not less than 1 year and a

maximum term of not more than 6 years, and

shall be further punished by a fine of not less

than $2,000 nor more than $5,000. An offender who is imprisoned pursuant to the provisions of this paragraph must, insofar as

practicable, be segregated from offenders

whose crimes were violent and, insofar as

practicable, be assigned to an institution or facility of minimum security.

2. An offense that occurred within 7 years

immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this

section; * * * (b) when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a

prior offense must be alleged in the complaint,

indictment or information, must not be read

to the jury or proved at trial but must be

proved at the time of sentencing and, if the

principal offense is alleged to be a felony, must

also be shown at the preliminary examination

or presented to the grand jury.

Section 2 of NRS 484C.400 can be read in two ways: (1)

all prior convictions can be used for enhancement or

(2) only those “prior convictions” which were obtained

by a jury. If the former, NRS 484C.400(1)(c) is facially

unconstitutional. If the latter, the statute is unconstitutional “as applied” to Petitioner Martin. The Nevada

Court of Appeals’ holding that all prior convictions,

jury determined or not, can be used for enhancement

of punishment under NRS 484C.400(1)(c) & (2)(b) is

contrary to Almendarez-Torres, supra, Jones, supra,

and Apprendi, supra.

III

THE NEVADA COURT OF APPEALS

OVERLOOKED A NUMBER OF SALIENT

FACTS IN DENYING MARTIN RELIEF

The Nevada Court of Appeals’ assertion that Apprendi v. New Jersey, 530 U.S. 466, 496 (2000) and

Jones v. United States, 526 U.S. 227, 249 (1999) are “unequivocal” allowing all prior convictions to be used as

penalty enhancements is a misreading of Apprendi

and Jones as well as overlooking State v. Tighe, supra

understanding of Jones, supra.

Apprendi and Jones, recognized by Tighe, limit the

use of prior convictions for penalty enhancement to

those prior convictions which were determined by a

jury. Jones stated, “unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been

established through the procedures satisfying

the fair notice, reasonable doubt, and jury trial guarantees.” Id., 526 U.S. at 249 (emphasis added). Apprendi is in accord. (“There is a vast difference between

accepting validity of a prior judgment of conviction entered in a proceeding in which the defendant had

the right to a jury trial. . . .”) Id. 530 U.S. at 496

(emphasis added). The Nevada Court of Appeals’

acknowledgement that the reference to jury trial guarantees for prior convictions in Apprendi and Jones was

“ . . . one reason why recidivism is treated differently

from other considerations that could enlarge a sentence” is an admission that the prior convictions must

have been determined by a jury before they can be used

to enhance a sentence. Appendix 3. Equally true, the

Nevada Court of Appeals’ recognition of the jury trial

requirement contradicts its reliance on the “unequivocal” language as meaning all prior convictions. The

jury trial “reason” also applies to Appellant Martin, not

just Almendarez-Torres.

This Court overlooked United States v. Tighe, supra. Tighe stated,

Thus, Jones’ recognition of prior convictions

as a constitutionally permissible sentencing

factor was rooted in the concept that prior

convictions have been, by their very nature,

subject to the fundamental triumvirate of procedural protections intended to guarantee the

reliability of criminal convictions: fair notice,

reasonable doubt and the right to a jury

trial.

Id. 266 F.3d at 1193 (emphasis added).

Equally true, the Nevada Court of Appeals overlooked Justice O’Connor, with whom Justice Kennedy

and Justice Breyer dissented in Shepard v. United

States, 544 U.S. 13 (2005) recognizing that the Jones

prior convictions were themselves “established through

procedures satisfying the fair notice, reasonable doubt,

and jury trial guarantees. Jones, supra at 249.” Shepard, 455 U.S. at 38.

The Nevada Court of Appeals overlooked the reservation made in Blanton v. N. Las Vegas, 489 U.S. 538

(1989) “whether a repeat offender facing enhancement

penalties may state a constitutional claim because of

the absence of a jury trial in a prior DUI prosecution.”

Id., 489 U.S. at 545, n.12. The United States Supreme

Court in Almendarez-Torres, supra, Jones, supra and

Apprendi, supra, as well as Tighe, supra supports Martin. The use of prior convictions for enhancement of

penalties must be limited to “prior convictions” that

were themselves obtained through proceedings that

included the right to a jury trial. This Court’s “unequivocal” assertion ignores the controlling constitutional

law.

Martin cited to Almendarez-Torres to show that

the prior convictions used to enhance AlmendarezTorres’ sentence qualified as a prior convictions under

Apprendi and Jones. Martin pointed out that the prior

convictions used in Almendarez-Torres had been determined by a jury. Martin’s Opening Brief, p. 22, n.34.

The Nevada Court of Appeals’ reliance on Martin’s

“admitt[ing] his recidivism at the time he pleaded

guilty” is not dispositive. An admission of guilty does

not change the law as to what prior convictions can be

used for sentence enhancements. Additionally, the

state appellate court ignored that the law required

Martin to plead guilty (and not challenge the validity

of his prior convictions) to be eligible for treatment of

alcoholism in lieu of prison. See NRS 484C.430. Also

see Aguilar-Raygoza v. State, 127 Nev. 349, 255 P.3d

262 (2011) (requiring a defendant to plead guilty to apply for treatment of alcoholism does not violate defendant’s due process rights).

---------------------------------♦---------------------------------

CONCLUSION

Almendarez-Torres’ labeling of prior conviction enhancements as sentencing factors has been irreconcilably eroded by Apprendi and its progeny and, as

suggested by some members of the Court, should be

overruled. The effect of prior convictions, which is the

controlling factor, renders prior convictions as elements, not sentencing factors.

Martin’s case is prime for reconsideration of

Almendarez-Torres as Nevada allows prior conviction

enhancements to be based on judicial factfinding in

light of Almendarez-Torres.

The keystone of Apprendi and its progeny is the

preservation and enforcement of the Sixth and Fourteenth right to be tried by a jury. This is why Jones and

Apprendi made clear that Almendarez-Torres, prior

conviction enhancement by the Judge must have been

the result of the procedural safeguards of a jury. The

Nevada Court of Appeals’ finding that under NRS

484C.400(1)(c) prior convictions in which the defendant did not have the right to a jury trial can be used

as enhancement to send a person to prison is incongruent with Jones, supra, Apprendi, supra and its progeny.

Under Almendarez-Torres, Jones and Apprendi,

NRS 484C.400(1)(c), as interpreted by Nevada’s Court

of Appeals, is facially unconstitutional because the

statute allows the enhancement of penalties based on

prior convictions which were not found by a jury.

Alternatively, the statute is unconstitutional “as applied” to Petitioner Martin.

Respectfully submitted,

MICHAEL D. PARIENTE, ESQ. JOHN G. WATKINS, ESQ.,

Counsel of Record

THE PARIENTE LAW

FIRM, P.C.

3800 Howard

FIRM, P.C.

Hughes Parkway

3800 Howard

Suite 620

Hughes Parkway

Las Vegas, NV 89169

Suite 620

Tel: 702-966-5310

Las Vegas, NV 89169

Tel: 702-966-5310

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.