Baymon v. StateBaymon v. State
- Reporters:
- , ,
- Before:
- Per Curiam
*371 OPINION
Per Curiam:
Eddie Lee Baymon has appealed from his conviction for possession of a controlled substance, marijuana, and from the imposition upon him of a life sentence pursuant to Nevada’s habitual offender enhancement statute.
Baymon first argues that his “conviction”
1
under
In Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969), we held in accordance with the rule announced in Burgett v. Texas, 389 U.S. 109 (1967), that when the State seeks by introduction of prior convictions to invoke the habitual offender enhancement statute, there must be an affirmative showing that the defendant was represented by counsel or that he validly waived his right to counsel in the prior felony proceedings. See also, Burns v. State, 88 Nev. 215, 495 P.2d 602 (1972). It is *372 undisputed that there exists no affirmative evidence in the record that Baymon was represented by counsel either at his 1967 conviction for burglary in Las Vegas or at his 1973 convictions for murder, robbery and burglary in Reno.
However, a survey of the trial and sentencing transcripts reveals that neither Baymon nor his counsel offered any objection to the trial court’s reliance upon the records of prior convictions to sustain the enhancement under
Baymon next argues that reversible error occurred when the trial court relied upon a pre-sentence report, compiled by the Department of Parole and Probation, which contained “information that is not referable to an official record.” Under the standards enunciated in Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976), reliance on a pre-sentence report will be considered improper only when that report is shown to contain “impalpable or highly suspect evidence.” 92 Nev. at 94. A short review of the record reveals not only that Baymon and his counsel were provided with a copy of the report prior to the sentencing hearing, but that Baymon’s counsel told the Court, “[W]e have reviewed it [and] factually he has brought to my attention no correction.” No error occurred in the trial court’s reliance on the report.
Baymon’s final argument, that the imposition of the enhanced penalty constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution, also is without merit. In Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978), we held that a sentence within statutory limits does not constitute cruel and unusual punishment when the statute fixing the punishment is not unconstitutional, or the sentence actually imposed is not so grossly disproportionate to the crime committed as to shock the conscience. See also, State *373 v. Guthrie, 532 P.2d 862 (Ariz. 1975), Capuchino v. Estelle, 506 F.2d 440 (5th Cir. 1975).
In Capuchino v. Estelle, supra, the court upheld against a similar constitutional attack on an enhanced penalty of life imprisonment under the habitual offender statute applicable in Texas, imposed by the trial court after conviction for possession of narcotics paraphernalia. The court held that the offenses to be considered in assessing the cruelty of the enhanced penalty included past felonies as well as the felony involved in the present conviction. These past felonies in Capu-chino included assault with intent to commit murder, burglary, and a federal narcotics conviction. 506 F.2d at 442. Baymon’s past felonies include first degree murder, robbery and burglary. We see no constitutional infirmity in the application of the habitual offender enhancement statute in this case.
Affirmed.
Notes
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