IN THE SUPREME COURT OF THE STATE OF NEVADA

SHANELL CATHRINE MARTIN, Appellant, vs. THE STATE OF NEVADA, Respondent. No. 83665 

# FIL OCT 03 2022 ELIZABETHk BROWN CLERK9FaJPREMECOURT BY D . Y ORDER VACATINGANDREMANDING DEP111- 1?' - ;ti t ; t1 .- ( 114 k This is an appeal from a judgment ofconviction, pursuant to a guiltyplea, ofpossession ofa controlled substance. Fourth Judicial District Court, Elko County; Kriston N. Hill, Judge.

Appellant Shanell Cathrine Martin argues that the district court erroneously adjudicated her guilty and sentenced her to prison. She argues that this was her second category E felony conviction for possession of a contrölled substance, see NRS 453.336(2)(a), so deferral ofjudgment
was mandatory under NRS 176.211(3)(a)(1). Martin contends that she consented to deferral at the sentencing hearing, and the written plea agreement stated that deferral ofjudgment was • mandatory, so the district court lacked discretion to deny deferment. We agree.

Because this case invokes a question of statutory interpretation, our review is de novo. See State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). We recently held that the plain language of

• NRS 453.336(2)(a) and cross-referencing NRS 176.211(3)(a) require judgment deferral for first or second offenses under NRS453.336(2)(a). See Lockerv. State, 138Nev.,Adv.Op. 62, P.3d (2022) (interpretingNRS

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### ca -31taq176.211(3)(a)(1) and NRS 453.336(2)(a)). Because this wasMartin's second

conviction for possession of a controlled substance, and she consented to deferral of the judgment,1 the district court was required to defer entry of herjudgment.2 Instead, the district court entered ajudgment ofconviction

•and sentenced Martin to prison. We conclude that the district court's decision to do so was erroneous.

Insofar as the State argues that Martin's sentence was proper, we are unpersuaded. The State contends—for the first time on appeal— that Martin had at least three convictions for possession of a controlled substance and, therefore, Martin's sentence was not erroneous. Different subsectionsofNRS453.336prescribevaryingpunishment dependingonthe number of previous convictions a person has had. Compare NRS 453.336(2)(a) (listing a first or second offense as a category E felony), with NRS 453.336(2)(b) (listing a third or subsequent offense as a category D felony). In this case, the State charged Martin with the category E felony, NRS 453.336(2)(a), which specifically concerns a first or second offense possession ofa controlled substance. Martin pleaded guilty to a category E felony, NRS 453.336(2)(a), and not a category D felony, NRS 453.336(2)(b). Thus, her prison sentence cannot be affirmed by applying NRS

'Martin consented when she requested deferral of judgment at her sentencing hearing. Moreover, the plea agreement stated that deferral of judgment was mandatory for a first or second offense under NRS 453.336(2)(a).

2We reject the State's argument that NRS 176.211(3)(a)(1) applies only ifthe defendant pleads guilty without a plea agreement based on the language in the last sentence ofNRS 176.211(1). We recently held that this language does not apply in cases covered by NRS 176.211(3)(a)(1). See Locher, 138 Nev., Adv. Op. 62, P.3d at .

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453.336(2)(b). Further, the only proof of Martin's prior convictions in the record isinthepresentence investigationreport, which we have held "isnot prima facie evidence of a prior felony conviction." Hudson v. Warden, 117 Nev. 387, 395, 22 P.3d 1154, 1159 (2001). In sum, this argument is meritless. We recognize that the district court may have been under the impression that NRS 176A.100(1)(b), a discretionary probation statute, applied to Martin's sentencing. However, given the 2019 amendments to NRS 176.211(3)(a)(1), see 2019 Nev. Stat., ch. 633, § 19, at 4389, and NRS 453.336(2)(a), see 2019 Nev. Stat., ch. 633, § 113, at 4470, the district court lacked discretionto sentence Martintoprison.3 Based onthe foregoing,4 we

ORDER thejudgment ofconviction VACATED AND REMAND this matter to the district court for proceedings consistent with thisorder.5

, J. Cadish

3The 2021 amendment to NRS 453.336(2) added a reference to NRS 453.336(5), which governspossession ofmarijuana. See2021Nev. Stat., ch. 389, § 32, at 2442-43. This amendment does not affect our analysisbecause Martin was not charged with possession ofmarijuana.

4Martin also argues that the State breached the plea agreement. In light ofthe disposition ofthis appeal, we need not reach this issue.

5Due to the retirement of the Honorable Abbi Silver, she did not participate in the decision in this matter.

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### cc: Hon. Kriston N. Hill, District Judge Ben Gaumond Law Firm, PLLC Attorney General/Carson City Elko County District Attorney Elko County Clerk

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