LINDSIE NEWMAN, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 67756 

LINDSIE NEWMAN, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 67763 

FILED 

APR 2 8 2016 

Tot ILK. .LINDEMAN 

CL OU 

BY 

DEPLITMLERK 

132 Nev., Advance Opinion 31 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Consolidated appeals from a district court judgment reVOking 

probation and from a judgment of conviction pursuant to a guilty plea to 

possession of a controlled substance. First Judicial District Court, Carson 

City; James Todd Russell, Judge. 

Dismissed (Docket No. 67756) and affirmed (Docket No. 

67763). 

Karin K. Kreizenbeck, State Public Defender, and Sally S. deSoto, Chief 

Appellate Deputy Defender, Carson City, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Jason Woodbury, 

District Attorney, and Iris F. Yowell, Deputy District Attorney, Carson 

City, 

for Respondent. 

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BEFORE DOUGLAS, CHERRY and GIBBONS, JJ. 

OPINION 

By the Court, CHERRY, J.: 

These are consolidated appeals from a district court judgment 

revoking probation following a guilty plea to conspiracy to commit grand 

larceny and a judgment of conviction pursuant to a guilty plea to 

possession of a controlled substance. We focus upon whether the district 

court plainly erred when it considered the status of appellant, Lindsie 

Newman, as a pregnant drug addict when it sentenced her to a term of 

imprisonment for possession of a controlled substance. Newman claims 

the district court erroneously based its sentence on her status as a 

pregnant drug addict instead of on the crime she committed. Ordinarily, 

the district court should not consider a defendant's status when 

determining a sentence, but we conclude that the district court did not 

plainly err by considering Newman's status because she raised the issue of 

her status as a pregnant addict at the sentencing hearing. 1 

FACTS AND PROCEDURAL HISTORY 

Newman was convicted of conspiracy to commit grand larceny, 

a gross misdemeanor, after she entered a guilty plea. The district court 

sentenced her to nine months in jail, suspended the sentence, and placed 

'Although Newman appealed from the judgment of revocation for 

her conspiracy to commit grand larceny conviction, she has not presented 

any cogent arguments pertaining to that order for our consideration. 

Additionally, she has been discharged from the nine-month sentence, so 

the probation revocation appeal is moot. We accordingly dismiss the 

district court's order from which Newman appeals in Docket No. 67756. 

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Newman on probation for no more than two years with specific conditions. 

Less than five months later, Newman was charged with and pleaded 

guilty to possession of a controlled substance, a category E felony. Instead 

of imposing a sentence in that case, the court suspended the proceedings 

pursuant to NRS 453.3363 and placed Newman on probation for no more 

than three years with special conditions, including completion of the 

Western Regional Drug Court Program. 

Newman had difficulty complying with the conditions of her 

probation. At one point, the drug court terminated her for noncompliance 

but then reinstated her and required her to complete a program at the 

City of Refuge 2because she was pregnant. Newman, however, left the 

City of Refuge program before her baby was born. She was arrested for 

probation violations, and the Division of Parole and Probation submitted 

violation reports to the district court in both criminal cases. The reports 

alleged that Newman violated the special conditions of her probation by, 

among other things, possessing prescription pills for which she did not 

have a prescription, taking morphine pills, testing positive for 

methamphetamines, being discharged from drug court, and being difficult 

to supervise. Parole and Probation recommended the district court revoke 

2The City of Refuge is a program designed to assist pregnant women 

who have unplanned pregnancies and wish to deliver, instead of abort, the 

baby but cannot do so without additional support. See Welcome to City of 

Refuge, City of Refuge, http://refugenevada.com/index2.html (last visited 

Apr. 5, 2016). The program gives these women a safe and nurturing 

environment during the gestational period. Id. The participants must 

pursue a high school diploma and/or perform undemanding work. See 

Mission & Ministry, City of Refuge, http://refugeneyada.com/ 

Mission&MInistry.html (last visited Apr. 5, 2016). 

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Newman's probation and sentence her to a term of 12 to 32 months in the 

controlled substance case. 

The district court conducted a hearing on the violation reports. 

At the hearing, Newman admitted to the violations but denied using 

methamphetamines. Newman's counsel then informed the court how 

Newman wished to proceed: "Ms. Newman. . . ask's] for revocation in 

both of these cases today. She's appreciated the opportunities that the 

Court has afforded her by allowing her diversion and the drug court 

program as well as the City of Refuge so her baby will be born safe ay]." 

Counsel also requested that the district court run her sentences 

concurrently. 

In deciding whether to impose the sentences concurrently or 

consecutively, the district court explained its "main concern" was that 

Newman "stays in custody long enough for that child to be born." Those 

concerns were the focus of the following colloquy between the court and 

defense counsel: 

THE COURT: Ms. Merideth, do you 

understand my concern? I just want to make sure 

above all that she—and I'll sentence her 

accordingly—make sure she stays in custody until 

that child is born. Obviously, you couldn't trust 

her at the City of Refuge. You can't trust her 

anywhere. I don't want that child to be put at any 

risk in respect to this matter. . . . 

MS. MERIDETH: Well, I understand that, 

Your Honor, and I appreciate the Court's concern. 

I don't see that anyone wouldn't share the same 

concerns. 

Well, I would rather see her—and I think 

she would agree—do her time, the remaining time 

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in the actual prison system. There's more 

resources available to her. There's doctors. She's 

having problems getting [in to] seeing doctors in 

the jail 

After determining that the amount of credit applied to the 9-month 

sentence (265 days) would cause that sentence to expire before Newman 

gave birth, the court determined that it would have to impose a 

consecutive sentence in the controlled substance case to address its 

concerns. Ultimately, the district court revoked Newman's probation in 

the conspiracy to commit grand larceny case and executed the original 

sentence of nine months with credit for time served. The district court 

then sentenced Newman to 12 to 32 months in the Nevada Department of 

Corrections in the possession of a controlled substance case. The court 

ordered the sentences to run consecutively. At the conclusion of the 

hearing, the court informed Newman, "I'm doing this more than anything 

to protect that unborn child. I don't want to see you out doing anything 

until that child is born." Newman did not object below to either the 

sentence the court ordered or to the court's consideration of her status as a 

pregnant drug addict. 

DISCUSSION 

Whether this case is moot and, if so, whether this court should nonetheless 

entertain the appeal 

The primary issue before this court is whether the district 

court plainly erred when it considered Newman's status as a pregnant 

drug addict in deciding to impose a consecutive sentence in the controlled 

substance case. Newman argues that this issue became moot once her 

child was born but that this court should address the issue because of its 

significance. 

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Generally, we will not decide moot cases. Nat'l Collegiate 

Athletic Ass'n v. Univ. of Nev., Reno, 97 Nev. 56, 58, 624 P.2d 10, 11 

(1981). A case is moot if it "seeks to determine an abstract question which 

does not rest upon existing facts or rights." Id. Mootness is a question of 

justiciability. Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 

574 (2010). The dispute must continue through all of the controversy's 

phases. Id. A case may become moot due to later occurrences despite the 

existence of a "live controversy" at the beginning of the litigation. Id. 

The issue that Newman raises is not moot. Newman's 

sentence has likely expired in her case for conspiracy to commit grand 

larceny, and we presume that she is no longer pregnant. However, in her 

case for possession of a controlled substance, the district court sentenced 

her to 12 to 32 months consecutive to her sentence in the conspiracy to 

commit grand larceny case, and the district court did not give Newman 

any credit for time served. Newman received parole on June 10, 2015, so 

we presume that she is currently subject to the district court's sentencing 

order and could be required to return to prison if she violates the terms of 

her parole. Accordingly, we will reach the merits of Newman's appeal. 

Whether the district court plainly erred in sentencing Newman 

Newman concedes that she did not object when the district 

court considered her status as a pregnant drug addict in determining her 

sentence or when it ordered consecutive sentences. However, she argues 

that the court's error was plain and impacted her due process right to be 

sentenced for her crimes, not her status as a pregnant drug addict. She 

contends the court sentenced her as it did solely to keep her incarcerated 

until her child was born. Newman does not contend that consecutive 

sentences violated Nevada law; she contends that the court 

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inappropriately considered her status as a pregnant drug addict when it 

decided whether to order consecutive or concurrent sentences. 

When a party fails to object to a trial court error, appellate 

review is precluded unless the error was plain. Anderson v. State, 121 

Nev. 511, 516, 118 P.3d 184, 187 (2005). In determining whether an error 

was plain, we examine the following: "whether there was error," "whether 

the error was plain or clear," and "whether the error, affected the 

defendant's substantial rights." Id. (internal citations and quotation 

marks omitted). The defendant must show "actual prejudice or a 

miscarriage ofjustice." Id. 

Nevada's sentencing courts have "discretion . . . to consider a 

wide, largely unlimited variety of information to insure that the 

punishment fits not only the crime, but also the individual defendant" 

Martinez v. State, 114 Nev. 735, 737-38,961 P.2d 143, 145 (1998). But our 

precedents have set forth circumstances in which we will reverse a 

sentence that is within the statutorily prescribed limits- (1) when the 

record "demonstrate [s] prejudice resulting from consideration of 

information or accusations founded on facts supported only by impalpable 

or highly suspect evidence," Silks v. State, 92 Nev. 91, 93-94, 545 P.2d 

1159, 1161 (1976); (2) when "the statute fixing punishment is 

unconstitutional," Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 

(1996) (internal citations and quotation marks omitted); (3) when "the 

sentence is so unreasonably disproportionate to the offense as to shock the 

conscience," id.; and (4) when the court "consider[s] a defendant's 

nationality or ethnicity in its sentence determination," Martinez, 114 Nev. 

at 738, 961 P.2d at 145. 

7 
However, we have previously upheld a sentence where the 

district court considered a defendant's immigration status. See Ruvalcaba 

v. State, 122 Nev. 961, 963, 143 P.3d 468, 469 (2006). In Ruvalcaba, the 

defendant objected to the Presentence Investigation Report (PSI) because 

it referenced "his immigration status and illegal re-entry into the United 

States following deportation." At the sentencing hearing, the judge 

sentenced the defendant to a term of imprisonment instead of ordering 

probation and said that the sentence was not a result of the defendant's 

status as a Mexican national. Id. "Rather, the judge expressed concern 

that Ruvalcaba would be unable to comply with any probationary sentence 

because he would likely be deported upon his release from custody." Id. 

In affirming the sentence, we stressed that the lower court "did not 

sentence Ruvalcaba more harshly based on ethnicity or nationality" or 

because of "any animus towards illegal aliens." Id. at 964, 143 P.3d at 

470. We noted that the lower court "denied Ruvalcaba's request for 

probation because, as an illegal alien, Ruvalcaba would likely be deported 

if he received probation and would thus ultimately avoid punishment." Id. 

In the end, we concluded that the district court correctly considered the 

defendant's status "to the limited extent indicated." Id. at 965, 143 P.3d 

at 471. 

The record here does not reflect that the district court plainly 

erred when it considered Newman's status as a pregnant addict in 

deciding to impose a consecutive sentence. Aside from being a pregnant 

addict, the court sentenced Newman as it did because she committed two 

crimes and had numerous probation violations. The district court also 

wanted to assist Newman in safely delivering her baby by giving her 

access to better medical resources in prison than she would have received 

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in the jail system—a goal Newman apparently shared at the time of 

sentencing. The court also noted that if it did not order Newman to serve 

consecutive sentences, she would not receive any additional punishment 

for her new crimes because of the credit she would receive toward her 

sentence for conspiracy to commit grand larceny. Accordingly, like in 

Ruvalcaba, we conclude the district court properly considered Newman's 

status for the limited purpose of sentencing her in the most appropriate 

manner. 

Newman additionally argues that the U.S. Supreme Court, in 

Robinson v. California, 370 U.S. 660, 662, 667 (1962), held that drug 

addiction is a status not an act and that a state violates the constitutional 

protection against cruel and unusual punishment by incarcerating a • 

person for his or her addiction to narcotics. Newman's reliance upon 

Robinson is misplaced because the holding in Robinson does not prohibit a 

district court from considering a defendant's status as a drug addict in 

fashioning a sentence. See id. The Robinson Court held that the lower 

court violated the defendant's Fourteenth Amendment rights by 

imprisoning him because the law criminalized drug addiction even when a 

person "has never touched any narcotic drug within the State or been 

guilty of any irregular behavior there." Id. In contrast, the district court 

here did not imprison Newman because being a pregnant drug addict 

violates some Nevada law; the court imprisoned her because she violated 

the terms of her probation in one case and was convicted in another case. 

Although the court clearly considered Newman's status as a pregnant 

addict when it sentenced her, Newman was not subject to the court's 

jurisdiction because of her status as a pregnant addict. Instead, she was 

subject to the district court's jurisdiction because she violated the terms of 

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her probation in a gross misdemeanor case and was convicted of a 

separate category E felony. 

Newman also relies upon the case of State v. Ikerd, 850 A.2d 

516, 518 (N.J. Super. Ct. App. Div. 2004), for the proposition that a trial 

court abuses its discretion when it sentences "a pregnant, drug-addicted 

woman who has violated the conditions of her probation ... to prison for 

the avowed purpose of safeguarding the health of her fetus." However, 

Ikerd, besides not being binding upon this court, is distinguishable. Ikerd 

was convicted for acts of welfare fraud, sentenced to probation, and 

required, among other things, to complete a drug treatment program. Id. 

After she violated the terms of her probation, the court revoked probation 

and sentenced Ikerd to prison, "[n] ot because we want to punish her, but 

because we want to save the baby." Id. at 519. The trial court even 

explained that it would consider releasing Ikerd from custody when she 

delivered her baby or if she lost her baby. Id. at 520. The appellate court 

reversed the lower court's decision because "the extent of the punishment 

imposed upon Ikerd resulted solely from her status as a pregnant addict. 

It bore no relationship to the offense that she initially committed, was 

excessively punitive, and accomplished no legitimate penal aim." Id. at 

521 (emphasis added). 

Unlike in Ikerd, Newman's punishment is related to her 

crimes. She was originally convicted of conspiracy to commit grand 

larceny and then (after receiving probation) picked up new charges, 

violated the terms of probation, was kicked out of drug court, quit the City 

of Refuge program, violated several other terms of probation, and picked 

up more new charges. The district court did not make any provisions for 

Newman's release following the birth of her baby, and the court stated 

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that keeping Newman off of the street was its main concern, not its sole 

concern. This at least implies that Newman's status as a pregnant addict, 

although the most significant, was not the only factor the court considered. 

Additionally, we must review for plain error due to Newman's 

failure to object in the lower court. This places a burden on Newman that 

she cannot meet. The record before us shows Newman's claim that the 

district court should not have considered her status as a pregnant drug 

addict is disingenuous. At the beginning of the hearing in district court, 

Newman's counsel initiated the discussion of Newman's status as a 

pregnant addict and the importance of safeguarding her unborn child. 

Then, after further discussion about running the sentences for the two 

convictions consecutively or concurrently, Newman's counsel further 

explained that Newman should be incarcerated to protect her unborn 

child. Indeed, a comprehensive reading of the transcript of that hearing 

convinces us that Newman wanted the district court to consider her status 

as a pregnant addict when it sentenced her. Defense counsel, the 

prosecutor, and the district court actually worked together to fashion a 

sentence to accomplish Newman's goal of being imprisoned when her child 

was born to prevent Newman from further drug use and provide her with 

access to better medical resources than she would have had if she were in 

jail or released from custody. 

Our decision is based upon the unique facts of this case. 

Nothing in our opinion today should be construed to indicate that courts 

should consider a defendant's status as a pregnant addict when imposing 

a sentence. But because Newman neglected to preserve this issue for 

appellate review and because Newman both participated in and initiated 

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the lower court's consideration of her status as a pregnant addict, we 

must affirm the lower court's decision. 

For the reasons set forth above, we conclude that the district 

court did not err when it considered Newman's status as a pregnant addict 

at the time of sentencing. Therefore, we dismiss Newman's appeal in 

Docket No. 67756 because her sentence has expired and affirm the district 

court's judgment of conviction in Docket No. 67763. 

ic\CAk J. 

Cherry 

We concur: 

Gibbons 

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