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 

ELIZABETH k BROWN 

CLERK9FaJPREME COURT 

BY D . Y 

ORDER VACATING AND REMANDING DEP 1111?' - - ;tit; t1.-(114k 

This is an appeal from a judgment of conviction, pursuant to a 

guilty plea, of possession of a 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 of judgment 

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 of judgment 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 NRS 453.336(2)(a). See 

Locker v. State, 138 Nev., Adv. Op. 62, P.3d (2022) (interpreting NRS 

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176.211(3)(a)(1) and NRS 453.336(2)(a)). Because this was Martin'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 

her judgment.2 Instead, the district court entered a judgment of conviction 

•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 

subsections of NRS 453.336 prescribe varying punishment depending on the 

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 of a 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 if the defendant pleads guilty without a plea agreement based on the 

language in the last sentence of NRS 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 is in the presentence investigation report, which we have held "is not 

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 discretion to sentence Martin to prison.3 Based on the foregoing,4 we 

ORDER the judgment of conviction VACATED AND REMAND 

this matter to the district court for proceedings consistent with this order.5

, J. 

Cadish 

3The 2021 amendment to NRS 453.336(2) added a reference to NRS 

453.336(5), which governs possession of marijuana. See 2021 Nev. Stat., ch. 

389, § 32, at 2442-43. This amendment does not affect our analysis because 

Martin was not charged with possession of marijuana. 

4Martin also argues that the State breached the plea agreement. In 

light of the disposition of this 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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