IN THE SUPREME COURT OF THE STATE OF NEVADA

LOUIS RANDOLPH, A/K/A CLYDE LEWIS, Appellant, vs. THE STATE OF NEVADA, Res ondent. No. 84269 

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EOZAE:ETHA. BROWN CLERK Qf 8'PRUE COURT BY ORDER OFAFFIRMANCE DEPUTYCLERK This is a pro se appeal from a district court order denying a motiontocorrect anillegal sentence.' EighthJudicial District Court, Clark County; Erika D. Ballou, Judge.

Appellant argues that his sentence for first-degree murder was illegal because the trial court released thejury following the guilty verdict and imposed the sentence itself when NRS 175.552 instead required that the trial court hold a separate penalty hearing before the trial jury when appellant did not stipulatein writingto waivethe separate penaltyhearing before the trialjury. He assertsthat in these circumstances, the trial court lackedjurisdiction to impose the sentence for first-degree murder.

A motion to correct an illegal sentence may address "only the facial legalityofa sentence." Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996). Anillegal sentenceis one where the sentencingcourt lacks jurisdiction or imposes a sentence that exceeds the maximum statutory term. Id. A motion to correct "cannot, however, be used as a vehicle for

'Having considered the pro se brief filed by appellant, we conclude that a response is not necessary. NRAP 46A(c). This appeal therefore has been submitted for decision based on the pro se brief and the record. See NRAP 34()(3).

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# -asciachallenging the validity of a judgment of conviction or sentence based on

alleged errors occurring at trial or sentencing." Id.

Here, appellant argues that the district court lacked jurisdictionbecause it violated NRS 175.552(1)(a). We disagreebecausethe separate hearingprovisionin NRS 175.551(1)(a)isa procedural rule that is waivable and not jurisdictional. See Hubbard v. State, 110 Nev. 671, 677, 877 P.2d 519, 522 (1994) (distinguishing jurisdictional defenses from waivable ones); State v. Williams, 686 S.E.2d 493, 505 (N.C. 2009) (holding that statutory requirements that the same jury and judge would hear the trial and sentencingstagesina deathpenaltycase were procedural andnot jurisdictional); Snyder v. Commonwealth, 121 S.E.2d 452, 456 (Va. 1961) ("It is a well settledrule ofcriminalprocedure that ifan accused maywaive
a provision concerning the steps to be followed in a criminal prosecution, such provision is procedural, and not jurisdictional."); see ctlso Illinois v. Somerville, 410 U.S. 458, 481-82 (1973) (Marshall, J., dissenting) (explaining that jurisdictional errors are not waivable because one institution may not invade the jurisdiction of another). Appellant has asserted a procedural error, not ajurisdictional one. That procedural error occurred at sentencing and therefore falls outside the limited scope of a motion to correct an illegal sentence. See Edwards, 112 Nev. at 708, 918 P.2d at 324. Appellant also has not shown that the sentence imposed for the first-degree murder conviction exceeded that permitted by statute. See NRS 200.030(4)(b) (1993). Cf. State v. Second Judicial Dist. Court (Pullin), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008) ("It is well established that under Nevada law, the proper penalty is the penalty in effect at the time of the commission of the offense and not the penalty in effect at the time of

SUPREME COURT

OF NEVADA
(0) I947A ,076, 2Parraguirre

Sr.J.

Cadish sentencing."). Because appellant hasnot shownthat his sentenceisfacially illegal, the district court properly denied his motion to correct.

Having considered appellant's contentions and concluded that reliefis not warranted, we

ORDER thejudgment ofthe district court AFFIRMED.2

cc: Hon. Erika D. Ballou, District Judge Louis Randolph Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2The Honorable Mark Gibbons, Senior Justice, participated in the decision ofthis matter under a general order ofassignment.

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