“Sentencing Hearings” in Nevada – How It Works

In this article, our Las Vegas criminal defense attorneys discuss all you need to know about Nevada sentencing hearings:

• 1. The Hearing
• 2. Timing
• 3. Your Rights
• 4. Evidence
• 5. Sentencing Ranges
• 6. Multiple Convictions
• 7. Past Convictions
• 8. Guilty Verdict
• 9. Plea Bargains
• 10. Bail
• 11. Character Witnesses
• 12. Appeals
• 13. Commutations
• 14. Sentencing Statute
• Frequently Asked Questions
• Additional Reading

1. The Hearing

In Nevada, sentencing hearings are similar to trials in that both you (or your attorney) and the prosecution can present evidence, arguments, and witnesses. Unlike trials, though, there is no jury, and your guilt has already been decided: The only thing at stake is what penalties will be imposed on you.

1. incarceration (jail for misdemeanors, and prison for felonies);
2. a suspended jail sentence;
3. probation (where you get to remain out of custody as long as you submit to certain conditions, such as warrantless searches);
4. fines and/or community service;
5. victim restitution;
6. house arrest with electronic surveillance;
7. rehabilitation programs and/or counseling;
8. educational classes like DUI School or a Victim Impact Panel;
9. an order to abstain from drugs or alcohol and/or to wear a SCRAM alcohol-detection device; and/or
10. an order to “stay out of trouble” (abbreviated SOOT) while your case is open.¹

2. Timing

Nevada law states that, “Sentence must be imposed without unreasonable delay.”²

If the conviction was for a misdemeanor, the sentencing hearing typically occurs right away or within a few days. If the crime was a felony, the hearing might not occur for several weeks: This is to give your attorney ample time to prepare because the potential penalties are much more serious.

The hearing could also be delayed if:

• your attorney is moving for a new trial;
• the court needs to determine whether you are sane; and/or
• the Nevada Department of Parole and Probation is late in turning in your pre-sentence investigation (PSI).

3. Your Rights

At your sentencing hearing in Nevada, you have many rights, including:

• The right to be present at your sentencing;
• The right to have an attorney represent you;
• The right to present evidence (though you are not required to testify); and
• The right to propose alternative sentencing (such as rehab instead of prison).

Note that you do not have the right to confront or cross-examine witnesses like you do a trial. For example, if John is convicted of battery, and the victim Jane provides a “victim impact” statement at sentencing, John would not be able to cross-examine Jane on the stand.³

4. Evidence

Nevada’s evidentiary rules during sentencing hearings are very loose. During a criminal trial, no evidence is admissible unless it is relevant to the case. At sentencing, nearly all evidence is admissible.

Mitigating Evidence

In an effort to persuade the judge to impose laxer penalties, your attorney will introduce “mitigating factors.” These can be anything that makes you appear less blameworthy. Common examples include:

• you were abused and neglected as a child;
• you are a model citizen who has helped the community;
• you were under the influence of drugs or alcohol at the time and not in your right mind;
• you suffer from a mental illness; and/or
• you show remorse and the drive to be rehabilitated.

Aggravating Evidence

Conversely, the D.A. may try to introduce “aggravating factors” in an effort to persuade the judge to impose harsher punishments. Aggravating factors are evidence that make the crime seem more egregious. Common examples are:

• the injury you inflicted was severe;
• the property damage you caused was substantial;
• you used a weapon in the commission of the crime; and/or
• you have a long criminal record.⁴

5. Sentencing Ranges

Each Nevada crime carries a wide range of potential incarceration and monetary fines. The judge ultimately decides which penalties within that range to impose.

For instance, the least serious category of crimes are misdemeanors, which carry up to six months in jail and/or up to $1,000. The next category of crimes are gross misdemeanors, which carry up to 364 days in jail and/or up to $2,000.

Finally, there are felonies, which are the most serious class of crimes. Felonies, in turn, are divided into five sub-categories with their own sentencing ranges. These sub-categories are (from least harsh to most harsh):

1. Category E felonies:  Probation, though the judge may order 1 to 4 years in prison and up to $5,000.
2. Category D felonies:  1 to 4 years in prison and up to $5,000.
3. Category C felonies:  1 to 5 years in prison and up to $10,000.
4. Category B felonies:  1 to 20 years in prison.
5. Category A felonies:  life in prison with or without the possibility of parole or the death penalty (in certain murder cases).

For example, robbery is a category B felony carrying 2 to 15 years in prison. Meanwhile, drug possession can be a category E felony that may carry no prison at all with probation.

As you can see, the range spans from relatively lax to extremely harsh. Where your sentence falls within this range is what the sentencing hearing will determine.

6. Multiple Convictions

The judge usually decides whether multiple sentences will run “concurrently” (at the same time) or “consecutively” (one after the other back-to-back).⁵ Though for some crimes, the order is already written into the law.

Nevada Revised Statute 176.035(1) state that when you have been convicted of two or more felonies – and you have already been sentenced to prison for one – the judge may order that the second sentence run consecutively or concurrently.

7. Past Convictions

Whether your past criminal record can increase your sentence for a future conviction depends on several factors. For example, DUI carries harsher penalties if you have prior convictions within the last seven years.

Consult with your attorney, and refer to our information page about habitual offenders in Nevada (NRS 207.010).

8. Guilty Verdicts

If you are found guilty at trial in Nevada, your sentence will likely be harsher than it would had you taken a plea deal.

Judges prefer you to plea bargain instead of going to trial in order to conserve court resources. Therefore prosecutors will usually offer laxer penalties to you as an incentive to avoid trial.

9. Plea Bargains

Nevada judges usually will honor the sentencing terms of a plea bargain, but they do not have to. There is always a risk when you enter a plea that the judge will impose a harsher penalty. Though again, this is extremely rare.⁶

10. Bail

Whether you can remain out on bail pending your sentencing hearing in Nevada depends on the seriousness of the crimes you were convicted of.

In an effort to keep you out of custody pending the sentencing hearing, we would argue that you are not a flight risk and pose no risk to anyone’s safety.⁷

11. Character Witnesses

It is very common for family and loved ones to testify at sentencing hearings to lobby for a lax penalty. Though sometimes they can do more harm than good depending on what they say. Another option is for them to write a letter to the judge that your lawyer screens first.

Note that family and friends of the victim(s) if any can also testify at sentencing hearings. This can be very harmful if the judge is moved by their testimony.

12. Appeals

If you pleaded guilty or no contest, you usually cannot appeal your sentence. Though if you are found guilty in a trial, then you can appeal the sentence.

A common ground for appealing a sentence is that it violates your Eighth Amendment protections against cruel and unusual punishment.

There are strict deadlines to file the paperwork by, so consult with your attorney right away if you wish to appeal.⁸

13. Commutations

It may be possible to get your sentenced commuted (reduced). It requires applying to the Nevada Pardons Board. Learn more in our article on sentence commutation laws.

14. Sentencing Statute

Nevada Rule of Criminal Practice 14

1. Sentence must be imposed without unreasonable delay.

2. Counsel shall assist the court in setting a sentencing date. The State or the defense must notify the court at the time of the entry of plea, or as soon thereafter as is practicable, whether the sentencing hearing needs a special setting or time frame to present due to the nature of the case, witnesses, victim impact statements, or expert testimony. The court may set these special sentencing hearings on dates and times different from the department’s customary sentencing calendar.

3. Counsel shall, unless otherwise permitted by the court, have all reports, sentencing memorandums, exhibits, written victim impact statements, and any other writing or documentation that counsel intends to rely upon at the sentencing hearing filed with the court and served on opposing counsel no later than 3 days before the sentencing hearing date.

(A) Documents presented less than 3 days from the sentencing date constitutes good cause by the nonoffering party to continue the sentencing hearing. The nonoffering party may however waive a continuance if there is no objection to the documents, in which case the sentencing hearing shall be held, and the court may consider the documents.

(B) If documents are offered less than 3 days from the sentencing date and the nonoffering party elects not to continue the sentencing hearing but objects to the presentation of the documents, a court may, in the interest of justice, refuse to consider the documents, or elect to consider the documents at sentencing over the objection, or continue the sentencing hearing on its own motion.

4. The court shall not consider any ex parte communication, letter, report, or other document but shall promptly notify counsel for all parties, on the record, of any attempted ex parte communication or document submission.

5. Any witness who gives oral testimony at the sentencing hearing must be sworn.

6. Pending sentence, the court may commit the defendant to custody or continue or alter the bail.

7. If the defendant enters a plea of guilty, guilty but mentally ill, or nolo contendere, the court may, as appropriate, defer judgment in accord with NRS 176.211; suspend further proceedings and place the defendant on probation upon terms and conditions that must include attendance and successful completion of a specialty court program pursuant to NRS Chapter 176A; transfer the action to a court or a department of the court for the purpose of assigning the defendant into an appropriate program or treatment plan, or order a presentence report and set a sentencing date.

8. Subject to the provisions of NRS 176.135, a presentence report may be waived and sentence imposed at the entry of a plea of guilty, guilty but mentally ill, or nolo contendere.

Frequently Asked Questions

How long after conviction does sentencing take place in Nevada?

For misdemeanors, sentencing typically occurs right away or within a few days. For felonies, sentencing may take several weeks to allow attorneys time to prepare due to the more serious penalties involved.

What rights do I have during a sentencing hearing?

You have the right to be present at your sentencing, have an attorney represent you, present evidence (though you are not required to testify), and propose alternative sentencing options. However, unlike during trial, you cannot cross-examine witnesses.

Can a judge change the sentence agreed to in a plea bargain?

Yes, technically judges can impose a harsher penalty than what was agreed to in a plea bargain, though this is extremely rare. Judges usually honor the sentencing terms of plea agreements.

What factors can help reduce my sentence?

Some mitigating factors that can help reduce your sentence include: Showing remorse, having a history of community service, proving that mental illness or substance abuse influenced the crime, demonstrating rehabilitation potential, and providing evidence of childhood trauma or abuse.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
• Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
• Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
• The Emergence of Sentencing Hearings – Punishment & Society.
• The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.

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Legal References