Effective date of AB510's sentencing enhancements
I think one of the big unanswered questions of AB 510 is the following:
Do the amendments concerning sentencing enhancements apply to a case in which the offense occurred prior to July 1, 2007, if the sentencing hearing takes place after July 1, 2007?
Under AB 510, sentencing enhancements no longer automatically double the sentence, but instead allow the district court to select a term of years between 1 and 20 years to be served consecutively to the underlying sentence. The bill provides that it is effective July 1, 2007, but is silent as to whether this date applies to the date of the offense rather than the sentencing date.
Actually, there are four possibilities:
(1) The amendment could apply to all unexpired sentences -- which would require resentencing of all defendants who received an enhanced sentence. This seems highly unlikely.
(2) The amendment could apply to all sentences for which the judgment of conviction is not yet final -- meaning all cases in which the defendant has not yet been sentenced, all cases on direct appeal to the Nevada Supreme Court, and all cases for which the time period for filing a writ of certiorari has not yet expired. This would require resentencing for some defendants.
(3) The amendment could apply to all cases in which the sentencing hearing takes place on or after July 1, 2007.
(4) The amendment could apply to all cases in which the offense occurs on or after July 1, 2007.
Support for option 2 is found in In re Estrada, 408 P.2d 948 (Cal. 1965) (an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date); Litsey v. District Court of Twenty-First Judicial Dist., 565 P.2d 1343 (10th Cir. 1977); and State v. Von Geldern, 638 P.2d 319 (Haw. 1981).
Support for option 3 is found in People v. Floyd, 72 P.3d 820 (Cal. 2003); People v. Grant, 377 N.E.2d 4 (Ill. 1978); State v. Stafford, 129 P.3d 927 (Alas. App. 2006); State v. Tapp, 490 P.2d 334 (Utah 1971); State v. Morris, 954 P.2d 681 (Ida. App. 1998); and Elkins v. State, 659 N.E.2d 563 (Ind. App. 1995).
Support for option 4 is found in State v. Pulliam, 920 So.2d 900 (La. App. 2005).
Nevada law on this subject is sparse. In Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979), the Court found that a trial court erred in failing to apply the ameliorative penalty provision in effect at the time the defendant was sentenced, but in that case the Court noted that NRS 453.341 specifically addressed the retroactivity question at issue. In addressing the issue the Court noted both the general rule that the proper penalty is that in effect at the time of the commission of the offense, Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968), and the rule that laws imposing criminal sanctions require strict construction in favor of the citizen and against the government, United States v. Brown, 333 U.S. 18 (1947).
In Tellis, the Nevada Supreme Court found that the sentencing statute at the time of the offense was applicable based upon the language of NRS 193.130 which provides that a person must be sentenced to a term of imprisonment "within the limits prescribed by the applicable statute, unless the statute in force at the time of commission of the felony prescribed a different penalty." Unlike NRS 193.130, however, the enhancement penalties provided for in Chapter 193 do not contain this same "saving provision." See e.g. NRS 193.165 (deadly weapon enhancement).
Ultimately, the answer to this question is likely to fall on the Nevada Supreme Court's analysis of the legislative intent in enacting AB 510. The sentencing enhancements were added to the bill by the Senate very late in the session. Committee minutes are not yet posted for the Senate Judiciary Committee hearing on AB 510. It will be interesting to see if the Legislature specifically addressed the retroactivity question during the committee hearing. It does not appear that it was addressed during the floor session of the Assembly or Senate. I'm doubtful that the legislative history will provide much insight on this issue.
In the meantime, I think that a valid argument can be raised that defendants who committed offenses prior to July 1, 2007, but who have not yet been sentenced, or who do not have final judgments, are entitled to the benefit of AB 510. I expect that the State will disagree.