By the Court, GIBBONS, C.J.:
After pleading guilty to robbery, appellant Keith Sasser requested that the district court amend his presentence investigation report (PSI) prior to sentencing to correct an error. The district court amended Sasser's PSI in the judgment of conviction, rather than amending the PSI itself. In this opinion, we address whether the district court can properly amend a PSI in the judgment of conviction.
Sasser met Dominique Montenegro at a nightclub in Las Vegas. He offered to help Montenegro find her friends and indicated that he was related to an individual in her group. After they were unable to find her group, she accepted a ride from him to her friend's house. However, Montenegro alleges that Sasser did not stop the car when they arrived at her destination. She attempted to get out of the car while it was still moving but alleges that Sasser grabbed her hair, punched her in the face, and ran over her foot with his car to prevent her from escaping. The exact order of events is unclear from Montenegro's statement, but she alleges the following events occurred: (1) Sasser hit her causing her to lose consciousness; (2) she awoke outside the vehicle, and saw Sasser going through her purse; (3) Sasser sexually assaulted her multiple times; (4) Sasser told her to "[s]hut the [explicit] up," and she thought he was going to kill her; and (5) Sasser then apologized to her. Eventually, she escaped and checked into the University Medical Center (UMC).
Sasser pleaded guilty to robbery, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On appeal, Sasser argues that the district court erred in (1) amending his PSI in the judgment of conviction, (2) refusing to
Sasser argues that the district court improperly amended the PSI with the judgment of conviction rather than returning it to the Division of Parole and Probation (P & P).
In Stockmeier, this court explained that it is important for a defendant to object to his PSI at the time of sentencing because "Nevada law does not provide any administrative or judicial scheme for amending a PSI after the defendant is sentenced." 127 Nev. at ___, 255 P.3d at 213. Further, this court acknowledged that "the process by which the district court must resolve objections to a PSI is not entirely clear." Id. However, it is clear that "any objections [that the defendant has] must be resolved prior to sentencing."
Here, the district court explained its reasoning for amending Sasser's PSI in the judgment of conviction: "[W]hat's fundamentally important is that there be accurate information in front of any ... subsequent reviewing authority. And the two documents that follow each individual ... through the corrective system, are the judgment of conviction and the PSI."
We conclude that the district court did not err in amending the PSI in the judgment of conviction. Stockmeier did not specify how a district court should amend a PSI, so long as it was objected to and resolved prior to sentencing. The district court properly (1) heard argument on the defendant's objections, (2) resolved the objections prior to sentencing, and (3) made a record of its findings on the disputes it chose to resolve. By including its findings in the judgment of conviction, the district court effectively
Sasser argues that the district court should have stricken more information in the PSI. Sasser further argues that even though the district court's judgment of conviction ordered certain sections to be stricken, it did not actually strike the information in the PSI prior to sentencing. As a result, Sasser argues that the district court improperly relied on P & P's recommendation based on the inaccurate information in the PSI when it sentenced Sasser.
"A district court's findings of fact are entitled to deference" on review. Browning v. State, 124 Nev. 517, 531, 188 P.3d 60, 70 (2008). A defendant's "PSI must not include information based on `impalpable or highly suspect evidence.'" Stockmeier, 127 Nev. at ___, 255 P.3d at 213 (quoting Goodson v. State, 98 Nev. 493, 496, 654 P.2d 1006, 1007 (1982)); see also Goodson, 98 Nev. at 496, 654 P.2d at 1007 (holding that information in a PSI indicating that the defendant was a drug trafficker was impalpable and highly suspect because it was merely a "bald assertion" and "unsupported by any evidence whatsoever"). However, this court will not interfere with the district court's sentence if the defendant was not prejudiced by the consideration of this impalpable or highly suspect evidence. Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009).
Sasser argues that the district court should have stricken more information in the PSI because the information was "inaccurate, unsupported by evidence, contradicted by the physical evidence and/or contradicted by Montenegro's own statements."
Here, in addition to the PSI information regarding alleged threats to kill Montenegro and Sasser's subsequent sexual assault charge, which the district court struck, Sasser also objected to the following information in his PSI: (1) that Sasser had been unemployed since January 2010; (2) that officers observed that the victim had obvious bruises
In response, the State presented (1) a picture of Montenegro's injuries; (2) Montenegro's statement to police indicating that Sasser had hit her in the head; (3) Montenegro's statement that her foot was swelling, she had abrasions on her knees and foot, and blood on her foot; and (4) a statement from Montenegro's brother indicating that an officer observed swelling on her head. Further, regarding Sasser's unemployment, the State noted that Sasser had "been incarcerated for [some time]."
The district court found that sufficient evidence supported the above allegations and explained that it was most concerned with the violent nature of the offense based on the photographs provided by both sides.
We conclude that the district court properly declined to strike the above information from the PSI because the information was not based on impalpable or highly suspect evidence. While Sasser did cast some doubt on the PSI information, the State also provided evidence to support the information. The district court then had the discretion to decide whether any of the information was based on impalpable or highly suspect evidence. Considering the additional evidence presented to the district court and Sasser's failure to provide this court with the photographs that the district court relied on in making its determination,
Sasser claims that even though the district court ordered certain information stricken from the PSI, it did not actually strike the information prior to sentencing and, as a result, the district court improperly relied on P & P's recommendation, which was based on the inaccurate information in the PSI, when it sentenced Sasser. The record belies this claim.
The district court expressly stated that it would not consider certain information included in the PSI: (1) the alleged threats to kill Montenegro, and (2) a dismissed charge of sexual assault in an unrelated subsequent case against Sasser. Further, when discussing the dismissed charge, the district court noted:
The judgment of conviction reflects these findings.
We conclude that the district court did not abuse its discretion when sentencing Sasser because it expressly stated that it would not consider the information that it struck from the PSI. Its sentencing decision was based on the violence involved in the charge. The
Although a defendant's PSI is only one of many different considerations that the district court will evaluate when determining a defendant's sentence, Stockmeier gives a defendant the right to object to factual errors in the PSI, so long as he or she objects before sentencing, and allows the district court to strike information that is based on "impalpable or highly suspect evidence." 127 Nev. at ___, 255 P.3d at 213 (internal quotation marks omitted). The district court then has the discretion to amend the PSI itself, return it to P & P for amending, or amend it in the judgment of conviction. Accordingly, we affirm Sasser's judgment of conviction.
We concur: PICKERING, HARDESTY, PARRAGUIRRE, DOUGLAS, CHERRY and SAITTA, JJ.