Prison Sentence Giving You Fits? Try Vonseydewitz!

Prison Sentence Giving You Fits? Try Vonseydewitz!

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I’ve been asked a ton of questions lately that sound something like this:

“Hey is the Department of Corrections giving everyone credit towards parole eligibility?”
“I heard inmates serving B felonies will start getting front end credit.  What law is that?”
“How can I get credit towards MY sentence?”

Or just general inquiries about having “heard” changes were coming with how the Nevada Department of Corrections computes sentences.  So I did a little digging and although there’s no new statute that makes major changes, there has been a recent development that may be at the root of these inquiries.  Before we get into that, a little (recent) history lesson concerning how the time to be served pursuant to criminal convictions in Nevada may be in order. 

2007:  The Nevada Legislature passed what was known at the time as AB 510 (Assembly Bill 510).  Plenty has been written about it already but for today’s lesson, it’s important to note certain parts of that law were codified at NRS 209.4465.  Part of what that bill did was allow inmates serving certain sentences in prison to earn credits towards their minimum parole eligibility date.  Those provisions did not (and still do not) apply to inmates serving sentences for A or B category felonies. 

2011:  In 2011, AB 136 was proposed which would have extended the credits towards minimum parole eligibility provided by AB 510 to inmates serving Category B felony sentences.  In Nevada, “B” felonies encompass a wide variety of relatively serious offenses and it is possible depending on the offense and any enhancements (i.e. using a deadly weapon as part of an offense) that an inmate serving time for a B felony could have a maximum sentence of as little as six years, or in excess of twenty years.  So this could have affected a wide variety of offenses.  Alas, AB 136 was vetoed by the governor and thus did not become law.

2013: In the 2013 session, SB 71 was proposed and passed, and it allows prison sentences to be aggregated.  That is, where multiple sentences are involved, they are now added together to determine minimum and maximum parole eligibility.  Ostensibly, this is to reduce the number of times an inmate would have a parole hearing, thus saving the State money.  This only applies to sentences imposed after the law was passed, but inmates already serving multiple sentences are allowed to make an irrevocable election to have their sentences aggregated under NRS 213.1212.  Whether it is a good idea for an inmate to do so is going to have to be the topic of a future post!  In addition, SB 71 provided that credits earned towards minimum parole eligibility under the new law can only reduce the minimum sentence to be served by “not more than 58%.”  This would appear to mean an inmate given a 12 month minimum parole eligibility date would have to serve at least 153 days in prison regardless of how many credits he or she earned. 

2015 – 2016:  And now the main event!  If you’ve been wondering who or what is a Vonseydewitz, the reference here is to a Nevada Supreme Court decision from 2015 in which the Court concluded that an inmate (Mr. Vonseydewitz) who was serving time for a B felony in the Nevada Department of Corrections was improperly denied credits towards his minimum parole eligibility date.  How can that be, you may wonder, given the history above?  Well, the rationale used to reach that result involves a fair amount of statutory interpretation, including an exquisitely fine distinction between two types of parole eligibility used in Nevada’s criminal statutes.  See pp. 3-4 of the decision.  Thankfully, this is a blog post and we’re going to focus more on practical effect than legal justification! 

While this was an unpublished decision, it would appear it later gained some measure of endorsement by the entire Nevada Supreme Court because the Attorney General’s Petition for En Ban Reconsideration (i.e. review by all members of the court) was not only denied, but resulted in an order signed by every Nevada Supreme Court Justice.  In that Order, the Nevada Supreme Court purported to set forth exactly the limits of the Vonseydewitz decision, including a handy bullet-point list of which inmates could qualify for relief under the decision.  Inmates who could be affected by the decision include those:

  • Who committed crimes between July 17, 1997, and June 30, 2007, and,
  • The sentence being served does not fall under “the parole limiting provisions of NRS 453.3405(1).”  This would appear to mean inmates serving sentences for Trafficking a Controlled Substance as explained in NRS 453.3405 cannot benefit from this decision.  But for all others, who meet the above and,
  • Who have nor already gone before the parole board for that sentence, which then may;
  • Obtain additional credits but only so far as credit was not already “applied retroactively pursuant to NRS 209.4465(8)”, i.e. under AB 510 discussed above.

So what should you do if this information could apply to you or a friend or relative in the Nevada Department of Corrections??

The order in Vonseydewitz didn’t become final until March 17, 2016, so the fallout from all of this likely has not yet been fully realized.  If you think the above could apply to you or a loved one, or have any question at all if it applies, you may want to have the inmate discuss the matter with his or her caseworker – perhaps in writing so that there is some record of the inquiry.   This probably presents the quickest way to have the inquiry addressed, and since time is at the heart of this entire issue, that probably is the main concern of the inmate involved.

However, if the inmate doesn’t get an answer or doesn’t get an answer he or she is happy with, there always remains the option to present the issue to the court system.  A petition for writ of habeas corpus that challenges the time served pursuant to a judgment of conviction can arguably be filed at any time (See NRS 34.720, NRS 34.726) but there are good reasons not to delay, which could include (1) the fact parole eligibility is involved and the incentive is likely to obtain eligibility as soon as possible, but also (2) any eventual challenge under federal law (i.e. a federal habeas petition under 28 U.S.C. 2254) may possibly need to be filed within a year of the Vonseydewitz decision.  That year may potentially be tolled while a state court petition is pending, but any time wasted prior to filing said state petition might be lost.

The general disclaimer on this page applies as always but again – this is general information regarding recent changes in the law concerning how prison sentences are computed and not legal advice to be relied upon.  Conviction Solutions is available to be hired to assist with post-conviction and other criminal law and appellate matters.   

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