author: By the Court, HARDESTY, J.: STIGLICH, J., concurring in part and dissenting in part:

text:
    Terrence Karyian BOWSER, Appellant, v. The STATE of Nevada, Respondent.
    No. 71516
    Supreme Court of Nevada.
    FILED MAY 16, 2019
   By the Court, HARDESTY, J.:

Appellant Terrence Bowser successfully appealed his first conviction and received a new trial and sentencing hearing before a new district court judge. After the second trial, the judge imposed a longer sentence on some of the counts than had the original trial judge, which Bowser claims is a due process violation. In Holbrook v. State , 90 Nev. 95, 98, 518 P.2d 1242, 1244 (1974), we recognized that a presumption of vindictiveness arises where a judge imposes a more severe sentence after a new trial. The sole issue before us is whether this presumption of vindictiveness applies here, such that the imposition of this new sentence violated Bowser's due process rights. We hold that the presumption of vindictiveness does not apply when a different judge imposed the more severe sentence. Accordingly, we affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Following his first trial, Bowser was convicted of six counts: first-degree murder with the use of a deadly weapon (count 2), discharging a firearm out of a vehicle (count 4), discharging a firearm at or into a structure or vehicle (count 6), and three additional conspiracy charges. Bowser was sentenced to life in prison with the possibility of parole after 40 years. Specifically, the district court sentenced him to two consecutive terms of life with the possibility of parole after 20 years on the murder charge (count 2), 24 to 60 months on count 4, and 12 to 60 months on count 6, to run concurrent.

Bowser appealed, and we reversed the judgment of conviction and remanded for a new trial because the bailiff improperly presented evidence to the jury. On remand, Bowser was tried again on the same 6 counts, but with a different district court judge presiding. This time, he was convicted of voluntary manslaughter with a deadly weapon (count 2) instead of first-degree murder. He was also convicted of the two discharging-a-firearm charges (counts 4 and 6), but was acquitted of the three conspiracy charges. The district court conducting the retrial sentenced him to 2 consecutive terms of 48 to 120 months on count 2, 48 to 120 months on count 4 to run consecutive to count 2, and 28 to 72 months on count 6 to run concurrent to count 4. His new total sentence was 30 years in prison with a minimum of 12 years for parole eligibility. In imposing the sentences, the district court stated that it took into account the evidence at trial, the jury verdict, the information in the presentence investigation report, the defense's mitigation arguments, and all of the information about what had happened since the previous trial. The district court provided no other explanation for the new sentence.

Bowser appealed from the newly entered judgment of conviction, arguing that the sentences imposed for the discharging-a-firearm counts violated due process because they were harsher than the original sentences. The case was transferred to the court of appeals. In a split decision, the court of appeals affirmed Bowser's sentence. Bowser petitioned for review under NRAP 40B, which we granted.

DISCUSSION

Though district courts generally have significant discretion in sentencing, Chavez v. State , 125 Nev. 328, 348, 213 P.3d 476, 490 (2009), their sentencing decision must not be influenced by vindictiveness against the defendant, North Carolina v. Pearce , 395 U.S. 711, 723-26, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith , 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). A harsher sentence after a defendant successfully appeals his conviction presents a concern that the increase in sentence was motivated by vindictiveness on the part of the sentencing judge for the defendant's exercise of his right to appeal. In Pearce , the United States Supreme Court explained, "Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725, 89 S.Ct. 2072. And, because "the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id. To ensure the absence of vindictiveness as the reason for the harsher sentence, the Supreme Court announced in Pearce a presumption of vindictiveness that applies whenever a judge imposes a more severe sentence after a new trial. Id. at 726, 89 S.Ct. 2072 ; see also Wasman v. United States , 468 U.S. 559, 564-65, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). The presumption may only be overcome if the reasons for the more severe sentence affirmatively appear in the record and are "based upon objective information concerning identifiable conduct on the part of the defendant." Pearce , 395 U.S. at 726, 89 S.Ct. 2072. In Holbrook , we applied this presumption of vindictiveness to conclude that a harsher sentence could not be imposed following a new trial where the record did not show identifiable conduct by the defendant that would justify a more severe sentence. 90 Nev. at 98, 518 P.2d at 1244.

Bowser, relying on Holbrook , contends that the district court's failure to justify the harsher sentence on the record violated his due process rights. The State, on the other hand, urges this court to revisit and limit the holding of Holbrook in light of more recent Supreme Court jurisprudence clarifying the presumption of vindictiveness.

Before addressing these arguments, however, we must first determine whether the sentence Bowser received on retrial is harsher than his original sentence, so as to trigger due process concerns. Bowser's aggregate total sentence on retrial decreased from the original aggregate sentence, but the individual sentences on the discharging-a-firearm counts increased in length and were also changed to run consecutive rather than concurrent. Thus, whether his sentence was increased depends on whether we look at the aggregate sentence or the individual sentence on each count. The Supreme Court's jurisprudence on the presumption of vindictiveness does not direct a particular approach for determining whether the new sentence is greater.

We recognize that a majority of courts apply an aggregate approach to determine whether the new sentence is more severe than the original sentence. See People v. Johnson , 363 P.3d 169, 177-78 (Colo. 2015) ; State v. Hudson , 293 Ga. 656, 748 S.E.2d 910, 911 (2013). Under the aggregate approach, if the new aggregate total sentence is not greater than the original aggregate total sentence, then no presumption of vindictiveness applies. The rationale for this approach is that judges, in imposing sentences in cases where multiple counts stem from a single course of conduct, "typically craft sentences on the various counts as part of an overall sentencing scheme," but when "that scheme unravels due to elimination of some of the original counts, the judge should be given a wide berth to fashion a new sentence that accurately reflects the gravity of the crimes for which the defendant is being resentenced." Hudson , 748 S.E.2d at 913.

Though we appreciate the logic of the aggregate approach, we choose to adopt the count-by-count method, which means looking at each individual count to determine whether the new sentence on that count is greater in length than the original sentence or has been run consecutive whereas the original sentence was concurrent. This is consistent with our approach in determining whether a resentencing violates double jeopardy principles. See Wilson v. State , 123 Nev. 587, 591-93, 170 P.3d 975, 977-79 (2007) (rejecting the aggregate sentencing analysis used in federal courts, and instead assessing the sentence on each count separately). Moreover, we believe that this count-by-count approach best effectuates the objectives of the vindictiveness presumption: to deter actual vindictiveness by a sentencing authority and to "avoid a chilling effect on defendants exercising their right to appeal." Johnson , 363 P.3d at 181. To illustrate why, we need only consider the sentences in this case.

Bowser was charged with open murder in count 2. Following his first trial, he was convicted on count 2 of first-degree murder with the use of a deadly weapon, a category A felony, for which he was sentenced to a total of life with parole eligibility after 40 years. After his second trial, he was convicted on count 2 of the lesser offense of voluntary manslaughter with the use of a deadly weapon, a category B felony, for which he received the maximum sentence allowable by statute, 20 years with parole eligibility after 8 years. His new aggregate sentence was 30 years with parole eligibility after 12 years. Thus, under the aggregate approach, the presumption of vindictiveness would not apply because his new aggregate was not more severe than the original. But, given that his original sentence on count 2 alone was life in prison, it was not possible for his new aggregate sentence to be harsher, even if he had received consecutive maximum sentences on all counts. Yet, this does not preclude the possibility of judicial vindictiveness, meaning such vindictiveness could evade review under the aggregate approach. Thus, we apply the count-by-count method. Because Bowser's sentence on each of the discharging-a-firearm counts (counts 4 and 6) increased and the new sentence on count 4 was run consecutive whereas originally it was concurrent, we conclude that his new sentence was more severe than his original sentence for due process purposes.

Having concluded that Bowser's sentence after retrial was more severe, we now turn to whether the presumption of vindictiveness applies here where there were two different sentencing judges. Since Pearce was decided, the Supreme Court has made clear that the presumption "do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial." Texas v. McCullough , 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The Supreme Court explained in McCullough that "the evil the [ Pearce ] Court sought to prevent" was not the imposition of "enlarged sentences after a new trial," but rather, the "vindictiveness of a sentencing judge." Id. Thus, the presumption only applies when there is a "reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Alabama v . Smith , 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (internal quotation marks and citation omitted). "Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id. at 799-800, 109 S.Ct. 2201.

The Supreme Court has declined to apply the Pearce presumption where the sentences have not been imposed by the same judge or jury. For example, in Colten v. Kentucky , the Court refused to apply the presumption to a higher sentence arising from Kentucky's two-tier system, which allowed the defendant who was convicted and sentenced in an inferior court to appeal and receive a de novo trial in a superior court. 407 U.S. 104, 116-17, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The Court explained that there was no inherent vindictiveness stemming from a higher sentence imposed by a different court because the superior court was not being "asked to do over what it thought it had already done correctly." Id. The Court recognized that when there are different sentencers involved, "[it] may often be that the [second sentencer] will impose a punishment more severe than that received from the [first]. But it no more follows that such a sentence is a vindictive penalty for seeking a [new] trial than that the [first sentencer] imposed a lenient penalty." Id. at 117, 92 S.Ct. 1953.

Likewise, in Chaffin v. Stynchcombe , the Court declined to apply the presumption of vindictiveness to a higher sentence when it was imposed on retrial by a different jury, noting that "the jury, unlike [a] judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication." 412 U.S. 17, 26-28, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). And, in McCullough , the Court held the presumption to be inapplicable where a judge imposed a higher sentence on retrial than was imposed by a jury in the first trial, because it would be too speculative given that "different sentencers assessed the varying sentences," and thus, a "sentence 'increase' cannot truly be said to have taken place." 475 U.S. at 139-40, 106 S.Ct. 976. Furthermore, though McCullough involved a jury imposing the first sentence and a judge imposing the second, the Court strongly indicated that the same logic would apply where two different judges imposed the sentences. Id. at 140-41, 106 S.Ct. 976 n.3 (noting that while it appeared that Pearce involved two different judges, the Pearce decision did not focus on that and the Court declined to read Pearce as governing where different sentencing judges are involved).

Based on Pearce 's progeny and the concerns underlying the presumption of vindictiveness, we conclude that the presumption does not apply where a different judge imposes a higher sentence after retrial than the first judge. Under these circumstances, the likelihood of vindictiveness is de minimis, as there is no reason to presume that the second judge had a personal stake in the outcome of the first trial or sentencing, or a motivation to retaliate for a successful appeal. We recognize that judges generally have broad discretion in sentencing, and different sentences imposed by different judges merely reflect this discretion. Thus, because a different judge presided over Bowser's second trial and sentencing, due process does not require a presumption of vindictiveness.

Accordingly, we affirm the judgment of conviction.

We concur:

Gibbons, C.J.

Pickering, J.

Parraguirre, J.

STIGLICH, J., concurring in part and dissenting in part:

I concur with the majority's adoption of a count-by-count method to determine whether a subsequent sentence is harsher than the sentence originally imposed. And therefore I agree with the majority that Bowser' second sentence "was more severe than his original sentence for due process purposes." Majority opinion ante at 543. However, I disagree with the majority's adoption of a bright line rule that a presumption of vindictiveness "does not apply where a different judge imposes a higher sentence after retrial than the first judge," Majority opinion ante at 544, and thus I respectfully dissent.

As noted by the majority, it is not the concern of an enhanced sentence on remand that requires the presumption of vindictiveness; it is the concern that a defendant will be punished for exercising the right to appeal or collateral review and that the fear of such punishment will deter defendants from lawfully attacking a conviction. See Alabama v. Smith , 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ; North Carolina v. Pearce , 395 U.S. 711, 724-25, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865. "[D]ue process ... requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Pearce , 395 U.S. at 725, 89 S.Ct. 2072. Thus, the Supreme Court adopted a prophylactic rule for "whenever a judge imposes a more severe sentence upon a defendant after a new trial"-the sentencing judge must articulate the reasons for the higher sentence. Id. at 726, 89 S.Ct. 2072. Absent such articulation, a rebuttable presumption of vindictiveness applies. Smith , 490 U.S. at 798-99, 109 S.Ct. 2201.

While the Supreme Court has subsequently clarified that the presumption of vindictiveness will not apply in every case where a defendant receives a harsher sentence after retrial, see Majority opinion ante at 543-44, it also has not unequivocally decided whether the presumption should apply when two different judges in the same court issue the sentences, see Texas v. McCullough , 475 U.S. 134, 140 n.3, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). And I disagree with the majority that a different sentencing judge creates merely a "de minimis" likelihood of vindictiveness. Majority opinion ante at 544.

As the Supreme Court of Oregon noted, "[t]he fact that a different judge imposes an increased sentence does not eliminate [vindictiveness] concerns or the possibility that institutional prejudices might infect a trial judge's resentencing of a defendant after a successful appeal." State v. Sierra , 361 Or. 723, 399 P.3d 987, 1000 (Or. 2017) (internal quotation marks omitted). Indeed, the Supreme Court appears to have recognized the possibility of institutional concerns in Chaffin v. Stynchcombe , 412 U.S. 17, 27, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), when it remarked that a "jury is unlikely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals." While a jury is not likely to be sensitive to the institutional pressures of disincentivizing meritless appeals, "another judge operating within the same system as the original judge likely will have that knowledge and understandably could be sensitive to those interests." Sierra , 399 P.3d at 1000.

With the possibility that institutional concerns might affect judges operating in the same court and with the underlying objective of Pearce being "to assure the absence of [vindictive sentencing] motivation," 395 U.S. at 726, 89 S.Ct. 2072, I cannot agree with the majority's bright line rule that the presence of a different judge eliminates the presumption of vindictiveness. I would instead adopt a rule that the presumption of vindictiveness is inapplicable where there are different sentencing judges only if the second sentencer states objective, nonvindictive reasons for imposing the greater sentence. This requirement has been adopted by a number of federal circuit courts and the Supreme Court of Oregon. See United States v. Rodriguez , 602 F.3d 346, 358-59 (5th Cir. 2010) (collecting cases); Sierra, 399 P.3d at 999-1000 ; cf. McCullough , 475 U.S. at 140, 106 S.Ct. 976 ("[T]he second sentencer provide [d] an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more[,] particularly since trial judges must be accorded broad discretion in sentencing.") Moreover, the added condition I would impose is consistent with our holding in Holbrook , which states that when a harsher sentence "is imposed after a new trial the reasons for doing so must affirmatively appear." Holbrook v. State , 90 Nev. 95, 98, 518 P.2d 1242, 1244 (1974).

Creating a record of a logical, nonvindictive reason for imposing a harsher sentence does not do violence to Holbrook , Pearce , or Pearce's progeny. Instead, it helps to ensure that a defendant is not punished at resentencing after exercising the right to appeal or collateral review, a goal squarely in line with the above-mentioned precedent. Accordingly, I would apply the presumption of vindictiveness to this matter, as the record contains no objective, nonvindictive justification for the harsher sentences, and modify the sentences for counts 4 and 6 to the terms originally imposed, pursuant to Holbrook,

Respectfully, I dissent.

      An increase in sentence following a new trial does not violate double jeopardy principles. See Pearce , 395 U.S. at 720-21, 89 S.Ct. 2072 (explaining that double jeopardy is not implicated where a defendant successfully appeals his conviction, has a new trial, and receives a higher sentence because "the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean").

      Though the dissent places heavy emphasis on the possibility that a second judge might be infected by institutional prejudices when resentencing a defendant after a successful appeal, we view such a position as too speculative to present a likelihood of vindictiveness. See United States v. Anderson , 440 F.3d 1013, 1016-17 (8th Cir. 2006) ("To apply a presumption of vindictiveness in such circumstances-where the second sentencer had no personal stake in the prior proceedings-would require an inference of institutionalized hostility toward the exercise of appellate rights or a collusive arrangement between judges to have one exact vindication for another. There is no evidence to suggest such a lack of professionalism among judges, and we are unwilling to make such inferences on the present facts.").

      Bowser does not argue that the sentence on retrial was the result of actual vindictiveness or reliance on impalpable or highly suspect evidence. See Alabama , 490 U.S. at 801-03, 109 S.Ct. 2201 (providing that where the presumption of vindictiveness does not apply, the burden is on the defendant to prove actual vindictiveness); Silks v. State , 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976) (refraining from interfering with a sentence within statutory guidelines where the defendant does not demonstrate prejudice from the district court's reliance on impalpable or highly suspect evidence).

      The Honorable Elissa F. Cadish and the Honorable Abbi Silver, Justices, did not participate in the decision of this matter.

      Even had the Supreme Court ruled on this issue, concluding that the presumption does not apply where there are two different sentencing judges within the same court, that fact would not preclude this court from concluding that the Nevada Constitution requires otherwise. See Wilson v. State , 123 Nev. 587, 595, 170 P.3d 975, 980 (2007) ("[S]tates are free to provide additional constitutional protections beyond those provided by the United States Constitution.").


source: Caselaw Access Project

license: Public Domain

text:
    LAS VEGAS REVIEW-JOURNAL, Appellant, v. CITY OF HENDERSON, Respondent
    No. 73287
    Supreme Court of Nevada.
    FILED MAY 24, 2019
    AFFIRMED IN PART. REVERSED IN PART. REMAND.


text:
    William ERRICO, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Eric Johnson, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
    No. 78724
    Supreme Court of Nevada.
    FILED MAY 24, 2019
    DENIED.


text:
    STONERIDGE PARKWAY, LLC, a California Limited Liability Company, Appellant, v. SILVERSTONE RANCH COMMUNITY ASSOCIATION, a Nevada Non-profit Corporation, Respondent.
    No. 76626
    Supreme Court of Nevada.
    FILED MAY 29, 2019
    REVERSED.


text:
    Juana Guzman BUSTAMANTE, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Denise L. Gentile, District Judge, Respondents, and Jeffrey E. Hernandez, Real Party in Interest.
    No. 78798
    Supreme Court of Nevada.
    FILED MAY 28, 2019
    Deny.


text:
    Brian Anthony CAPERONIS, Appellant, v. The STATE of Nevada, Respondent.
    No. 75082
    Supreme Court of Nevada.
    FILED MAY 28, 2019
    AFFIRMED.


text:
    ARCHON CORPORATION; Paul W. Lowden; and Suzanne Lowden, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Mark R. Denton, District Judge, Respondents, and Dan Raider, Real Party in Interest.
    No. 74270
    Supreme Court of Nevada.
    FILED MAY 24, 2019
    DENIED.


text:
    William FINK, Appellant, v. RANDS & SOUTH, LTD., a Nevada Professional Corporation, d/b/a Rands, South & Gardner and/or Law Offices of Rands South & Gardner, Form and Type of Entity Unknown; and Douglas J. Gardner, Individually, Respondents.
    No. 77991
    Supreme Court of Nevada.
    FILED MAY 30, 2019
    Dismissed.


text:
    ABD HOLDINGS, INC., a Nevada Corporation; Robert T. Barra, an Individual; and Donald Giebler, an Individual, Appellants, v. JMR INVESTMENT PROPERTIES, LLC, a Texas Corporation; and Paul Jacobs, an Individual, Respondents.
    No. 74710
    Supreme Court of Nevada.
    FILED MAY 29, 2019
    AFFIRMED.


text:
    TUTOR PERINI BUILDING CORP.; and Travelers Casualty and Surety Company of America, a Connecticut Corporation, Appellants, v. SHOW CANADA INDUSTRIES US, INC., Respondent.
    No. 74299
    Supreme Court of Nevada.
    FILED MAY 29, 2019
    AFFIRMED.


text:
    MOUNTAIN FALLS ACQUISITION CORPORATION, a Nebraska Corporation, Appellant, v. The STATE of Nevada; and Jason King, in His Capacity as State Engineer of Nevada, Respondents.
    No. 74130
    Supreme Court of Nevada.
    FILED MAY 29, 2019
    AFFIRMED.


text:
    In the MATTER OF the GUARDIANSHIP OF the Estate of Wilfred Richard-James BOSSERMAN.
    William K. Errico ; and William Errico & Associates, P.C., Appellants, v. Sandra Stahl, as Successor Guardian of the Estate of Wilfred Richard-James Bosserman, Respondent.
    No. 76698
    Supreme Court of Nevada.
    FILED MAY 31, 2019
    DISMISSED.


text:
    DeMarian Antoine CLEMONS, Appellant, v. Brian WILLIAMS, Warden; the State of Nevada Department of Corrections; and the State of Nevada, Respondents.
    No. 78758
    Supreme Court of Nevada.
    FILED MAY 31, 2019
    DISMISSED.


text:
    Wilbert Roy HOLMES, Appellant, v. The STATE of Nevada, Respondent.
    No. 78706
    Supreme Court of Nevada.
    FILED MAY 31, 2019
    DISMISSED.


text:
    David Lawrence STORY, II, Appellant, v. Stephanie Lyn NICHOLS, Respondent.
    No. 77938
    Supreme Court of Nevada.
    FILED MAY 31, 2019
    ORDERED.


text:
    CITY OF LAS VEGAS, a Political Subdivision of the State of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Timothy C. Williams, District Judge, Respondents, and 180 Land Co., LLC, a Nevada Limited-Liability Company, Real Party in Interest.
    No. 78792
    Supreme Court of Nevada.
    FILED May 24, 2019
    DENIED.


author: OPINION BY JERRY L. GOODMAN, JUDGE:

text:
    ADVANCED RESOURCE SOLUTIONS, LLC, an Arizona Limited Liability Company, Plaintiff/Appellant, v. STAVA BUILDING CORPORATION, an Oklahoma Corporation and Mid-Continent Casualty Company, Defendants/Third-Party Plaintiffs/Appellees, v. McDermott Electric, LLC, an Oklahoma Limited Liability Company, Third-Party Defendant.
    Case Number: 116,979
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED APRIL 15, 2019 Mandate Issued: May 15, 2019
    Ronald R. Tracy, RESOLUTION LEGAL GROUP, Oklahoma City, Oklahoma, for Plaintiff/Appellant
    Craig M. Regens, GABLEGOTWALS, Oklahoma City, Oklahoma, for Defendants/Third-Plaintiffs/Appellees
   OPINION BY JERRY L. GOODMAN, JUDGE:

¶ 1 Advanced Resource Solutions, LLC (ARS) appeals an April 3, 2018, order granting summary judgment to Stava Building Corporation (Stava) and Mid-Continent Casualty Company (Mid-Continent). Based on our review of the record and applicable law, we affirm the order under review.

BACKGROUND

¶ 2 ARS is a temporary staffing company. On January 15, 2014, ARS and McDermott Electric, LLC (McDermott) entered into a contract for ARS to provide it with temporary laborers, such as licensed apprentice and journeymen electricians, for use on various commercial construction projects. McDermott used these laborers on a Luther-Walmart project (Walmart Project). Stava was the general contractor for the Walmart Project and McDermott was Stava's electrical subcontractor.

¶ 3 On March 29, 2016, ARS filed a petition, asserting it had provided McDermott with laborers for commercial construction on an open account from January of 2015 through June 4, 2015, that it had invoiced McDermott for the labor in the amount of $ 115,706.50, and that McDermott had failed to pay for the services. To secure payment, ARS executed and filed with the Oklahoma County Clerk a Mechanic and Materialman's Lien Statement on August 13, 2015, pursuant to 42 O.S.2011 and Supp. 2013, § 143 (ARS Lien). On January 19, 2016, Stava posted a Bond to Discharge Mechanic's Lien, No. 1014148, with Mid-Continent as surety.

¶ 4 Stava and Mid-Continent answered, generally denying the allegations. Stava and Mid-Continent further filed a third-party petition against McDermott, seeking an accounting.

¶ 5 ARS filed a motion for summary judgment on July 25, 2017, asserting that as a temporary staffing company it was entitled to recover from the lien discharge bond as it was a supplier of labor. Thus, it was a proper lien claimant pursuant to Oklahoma's lien statutes. See generally , 42 O.S.2011, § 141 et seq . Stava responded, disputing ARS's assertion. Stava asserted that to come within the scope of the mechanics's lien statute, ARS must have "performed labor." See 42 O.S.2011 and Supp. 2013, § 143.

¶ 6 On January 24, 2018, Stava filed a motion for summary judgment, asserting ARS was a professional employer organization (PEO) and did not "perform labor" as required under the lien statutes. Therefore, ARS, a supplier or provider of labor, was not within the class of persons entitled to assert a mechanics's lien in Oklahoma. ARS disagreed, asserting it was not a PEO but rather a temporary staffing company, as it was the direct employer of the licensed journeymen and apprentice electricians that worked on the Walmart Project. Thus, it was the employer that furnished labor within the meaning of the lien statutes and therefore a proper lien claimant.

¶ 7 By order entered on April 3, 2018, the trial court found that ARS was not within the class of persons entitled to claim a mechanic's lien under the Oklahoma statutes. Accordingly, the court granted Stava's motion for summary judgment and denied ARS's motion for summary judgment. ARS appeals.

STANDARD OF REVIEW

¶ 8 An appeal from an order granting summary judgment is subject to de novo review. Shull v. Reid , 2011 OK 72, ¶ 3, 258 P.3d 521, 523. "In its re-examination of the trial tribunal's legal rulings an appellate court exercises plenary, independent and nondeferential authority." Bronson Trailers & Trucks v. Newman , 2006 OK 46, ¶ 5, 139 P.3d 885, 899.

¶ 9 Summary judgment is properly granted "when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner , 1989 OK 146, ¶ 9, 782 P.2d 924, 926. When reviewing a grant of summary judgment, we must view all conclusions and inferences to be drawn from the evidentiary materials in a light most favorable to the party who opposes the motion. Id .

¶ 10 The dispositive legal issue in this case requires the interpretation of 42 O.S. § 143. Legal issues involving statutory interpretation are also questions of law, subject to de novo review. Raymond v. Taylor , 2017 OK 80, ¶ 9, 412 P.3d 1141, 1143-44 (citing Head v. McCracken , 2004 OK 84, ¶ 4, 102 P.3d 670, 674 ; Fulsom v. Fulsom , 2003 OK 96, ¶ 2, 81 P.3d 652, 654 ). "[S]tatutes are construed to determine legislative intent in light of the general policy and purpose that underlie them." Troxell v. Okla. Dep't of Human Servs. , 2013 OK 100, ¶ 4, 318 P.3d 206, 209.

ANALYSIS

¶ 11 In Oklahoma, statutory provisions for mechanic's and materialmen's liens are codified at 42 O.S.2011, § 141 et seq . Because these liens are created by statute, they exist in derogation of the common law and are strictly construed. Jones v. Purcell Investments, LLC , 2010 OK CIV APP 15, ¶ 6, 231 P.3d 706, 710 (citing Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 OK 112, ¶ 5, 614 P.2d 576, 579 ). However, once a mechanic's or materialmen's lien is found to exist, it will be liberally enforced. Id. "The purpose of the mechanic's & materialmen's lien statute is to protect materialmen and laborers, to secure payment of claims, and to give notice to the owners and to third parties of the intent to claim a lien for a definite amount. The recording requirement also protects innocent purchasers." Jones , at ¶ 6, at 710 (quoting Davidson Oil Country Supply Co., Inc. v. Pioneer Oil & Gas Equipment, 1984 OK 65, ¶ 6, 689 P.2d 1279, 1280-1281 ).

¶ 12 On appeal, ARS contends the trial court erred by holding it was not within the class of persons entitled to claim a mechanic's lien under Oklahoma Statutes. ARS contends it is a proper lien claimant under § 143, as it supplied labor for the Walmart Project. Stava disagrees, asserting ARS did not perform labor as required under § 143.

¶ 13 Title 42 O.S.2011 and Supp. 2013, § 143 provides, in pertinent part:

Any person who shall furnish any such material or lease or rent equipment used on said land or perform such labor as a subcontractor, or as an artisan or day laborer in the employ of the contractor, may obtain a lien upon such land, ... from the same time, in the same manner, and to the same extent as the original contractor, for the amount due for such material, equipment and labor....

¶ 14 Oklahoma has not addressed whether a temporary staffing company, which supplies skilled workers to a subcontractor, is within the class of claimants who may file a claim under § 143. The goal of statutory interpretation is to follow the intent of the Legislature. TRW/Reda Pump v. Brewington , 1992 OK 31, ¶ 5, 829 P.2d 15, 20. We ascertain that intent from the legislative act in light of its general purpose and object. City of Bethany v. Public Employees Relations Bd., 1995 OK 99, ¶ 8, 904 P.2d 604, 609. If a statute is plain and unambiguous, no judicial construction is necessary; it is only when the intent cannot be ascertained from the text that rules of statutory construction are invoked. Yocum v. Greenbriar Nursing Home , 2005 OK 27, ¶ 9, 130 P.3d 213, 219. If possible, we construe the various provisions as a harmonious whole. City of Tulsa v. Smittle , 1985 OK 37, ¶ 12, 702 P.2d 367, 370.

¶ 15 In relevant part, § 143 provides that "[a]ny person who ... perform[s] such labor as a subcontractor" is a proper lien claimant under the statute. While ARS furnished labor to McDermott, the Court finds ARS has not performed labor as a subcontractor and therefore fails to qualify as a proper lien claimant under § 143.

¶ 16 The court in Better Fin. Solutions v. Caicos Corp. , 117 Wash.App. 899, 73 P.3d 424 (2003), discussed the distinction between performing and furnishing labor. In Caicos , Caicos was awarded a construction contract. Caicos subcontracted the project's concrete work with MK Construction. MK entered into an agreement with Better Financial Solutions (BFS), a temporary labor provider. The BFS-MK agreement left control over the laborers' work to MK. BFS did, however, pay the laborers' wages, taxes and insurance, for which it received a 20% markup above these costs. BFS subsequently brought a claim against Caicos when it did not receive full payment. The trial court determined BFS was a subcontractor and thus a proper lien claimant under the state's statutory scheme.

¶ 17 On appeal, the appellate court reversed. The court rejected BFS's assertion it was a proper claimant under the state statutes because it furnished labor for the project. The court drew a distinction between persons who actually perform labor or who supply provisions and supplies for performing labor with a person who furnishes individuals who then labor. "A person who furnishes individuals who will then actually labor does no act to bring himself within the protected class." Id . at 427. The court held BFS was not a proper claimant under the Washington lien statutes.

¶ 18 In the present case, under the contractor statute, § 141, any person who performs labor or furnishes labor, materials, or equipment under a contract to make improvements to real property shall have a lien on the real property for the value of that labor, materials, or equipment. However, under the subcontractor statute, § 143, the Legislature choose to limit potential lien claimants to those who actually perform labor or furnish materials or equipment. The Legislature did not include those who furnish labor. ARS merely furnished labor, licensed apprentice and journeymen electricians to McDermott, who then actually labored. Furnishing labor is not the same as performing labor.

¶ 19 We further find ARS is not a subcontractor under § 143. The statutory provisions for mechanic's and materialmen's liens do not define "subcontractor." In Welling v. Am. Roofing & Sheet Metal Co. , 1980 OK 131, ¶ 4, 617 P.2d 206, 208, the Oklahoma Supreme Court defined "a sub-contractor [as] one who has entered into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance." (Citations omitted).

¶ 20 In Onsite Engineering & Mgmt., Inc. v. Illinois Tool Works, Inc. , 319 Ill.App.3d 362, 253 Ill.Dec. 195, 744 N.E.2d 928 (2001), the court addressed an analogous situation. Onsite Engineering & Mgmt., Inc. (Onsite), a temporary staffing provider, contracted with Smith Technology Corp. (Smith) to provide contract employees. The contract did not refer to type of work, project, or location of projects. Smith contracted with a general contractor, QST, to perform work on an Illinois project.

¶ 21 Onsite subsequently filed suit seeking, inter alia , to foreclose on a mechanic's lien after Smith failed to pay for its services. The defendants sought dismissal of this claim, asserting Onsite was not a subcontractor or secondary subcontractor entitled to a lien under the mechanic's lien act. The trial court granted the defendants' motion.

¶ 22 On appeal, Onsite asserted it was a proper lien claimant as it was a subcontractor or secondary subcontractor who furnished labor to Smith. The defendants disagreed, asserting Onsite was not a subcontractor because the contract between Onsite and Smith was not a contract or subcontract specifically related to the Illinois project.

¶ 23 In rejecting Onsite's assertion that it was a subcontractor, the court relied on Skillstaff of Colorado, Inc. v. Centex Real Estate Corp. , 973 P.2d 674 (Colo. Ct. App. 1998). In Skillstaff , a temporary staffing provider, who had supplied laborers to a subcontractor, filed suit seeking to foreclosure on its mechanic's lien. Although the state's statute provided "furnish or supplies labor ... or ... performing labor," the court held the agency was not an entity which could assert a mechanic's lien. The court distinguished between "those who furnish labor pursuant to a contract to do 'some particular part of the work' and those who merely furnish labor for the benefit of the contractor." Onsite , 253 Ill.Dec. 195, 744 N.E.2d at 932 (quoting Skillstaff , at 676 (quoting Kern v. Guiry Brothers Wall Paper Co. , 60 Colo. 286, 153 P. 87 (1915) ) ). "Thus, those individuals who physically provide labor in the construction of a building may assert mechanics' liens, while those who provide laborers to a subcontractor without assuming any responsibility for performing the work on the project may not." Onsite , 253 Ill.Dec. 195, 744 N.E.2d at 932, (quoting Skillstaff , at 676, ).

¶ 24 The court ultimately agreed with the defendants, finding the issue to be the relationship between Onsite and Smith. The court noted a subcontractor is "[o]ne who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance." Id ., 253 Ill.Dec. 195, 744 N.E.2d at 932 (citations omitted). Like the temporary agency in Skillstaff , the court stated that while Onsite furnished labor to Smith, it did not do so pursuant to a specific sub-let of Smith's contractual obligations to QST. Rather, Onsite and Smith's contract was silent regarding the Illinois project. Thus, Onsite had no contractual obligation to perform any work for this particular project. Id .

In order for Onsite to be able to claim a lien against the property at issue here, it would have had to contractually obligate itself to perform a portion of the work which Smith contracted with QST to perform on the Lincolnwood Project. However, it did not and thus is not a subcontractor or secondary subcontractor within the meaning of the Mechanics Lien Act.

Id .

¶ 25 The Court finds the analysis from Onsite persuasive. In the present case, the record provides ARS entered into a contract with McDermott to provide it with temporary laborers, i.e. , licensed apprentice and journeymen electricians, for use on its various commercial construction projects. The contract does not refer to a particular project. Rather, ARS is supplying McDermott with laborers on an open account. Thus, ARS has not entered into a contract to perform any act with regard to the Walmart Project. Accordingly, ARS is not a subcontractor under § 143 and is not a proper lien claimant under the state statutes.

¶ 26 The April 3, 2018, order granting Stava and McDermott summary judgment is therefore affirmed.

¶ 27 AFFIRMED .

THORNBRUGH, J., and RAPP, J. (sitting by designation), concur.

      By order entered on February 6, 2019, the accounting claim was dismissed with prejudice.

      Stava generally asserted ARS must have performed labor, furnished material, or leased or rented equipment to come within the scope of the statute, citing § 143.

      The order further provides that, "The Parties stipulate that this decision should apply with equal force to [Mid-Continent], such that Mid-Continent is entitled to summary judgment against ARS for the same reasons Stava is entitled to summary judgment against ARS."

      "The bond statute for contractors on public works projects, RCW 39.08.010, requires that the contractor 'pay all laborers, mechanics, and subcontractors and materialmen, and all persons who supply such person or persons, or subcontractors, with provisions and supplies for the carrying on of such work.' The retainage statute, RCW 60.28.011, confers a lien in favor of '[e]very person performing labor or furnishing supplies toward the completion of a public improvement contract' against the contractor's retainage bond or the public body's retained amount. RCW 60.28.011(2). Under the retainage statute, a '[p]erson' is 'a person or persons, mechanic, subcontractor, or material-person who performs labor or provides materials for a public improvement contract, and any other person who supplies the person with provisions or supplies for the carrying on of a public improvement contract.' RCW 60.28.011(12)(b)." Caicos, 73 P.3d at 426.

      The relevant statutes provide:
      " 'Subject to the provisions of Section 5, every mechanic, worker or other person who shall ... furnish or perform services or labor for the contractor, ... shall be known under this Act as a sub-contractor, and shall have a lien for the value thereof, ....'770 ILCS 60/21 (West 1996)." (Emphasis added).
      "When the contractor shall sub-let his contract or a specific portion thereof to a subcontractor, the party furnishing material to or performing labor for such sub-contractor shall have a lien therefor; and may enforce his lien in the same manner as is herein provided for the enforcement of liens by sub-contractors. 770 ILCS 60/22 (West 1996)."
      Onsite Eng'g & Mgmt., Inc. , 253 Ill.Dec. 195, 744 N.E.2d at 931.