author: By the Court, HARDESTY, J.:

text:
    Ryan Matthew LIPSITZ, Appellant, v. The STATE of Nevada, Respondent.
    No. 72057
    Supreme Court of Nevada.
    FILED JUNE 06, 2019
    Terrence M. Jackson, Las Vegas, for Appellant.
    Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
    BEFORE HARDESTY, STIGLICH and SILVER, JJ.
   By the Court, HARDESTY, J.:

Appellant Ryan Matthew Lipsitz was convicted of seven sexually related counts, including sexual assault and attempted sexual assault. He argues that the district court erred when it allowed the victim to testify by two-way audiovisual transmission, which violated his rights under the Confrontation Clause of the Sixth Amendment. We take this opportunity to adopt the test set forth in Maryland v. Craig , 497 U.S. 836, 850, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666 (1990), to determine whether a witness's testimony at trial via two-way audiovisual transmission violates a defendant's right to confrontation. Under Craig , two-way video testimony may be admitted at trial in lieu of physical, in-court testimony only if (1) it "is necessary to further an important public policy," and (2) "the reliability of the testimony is otherwise assured." 497 U.S. at 850, 110 S.Ct. at 3166. Applying this test here, we conclude that the district court did not abuse its discretion in allowing the victim, who was admitted to an out-of-state residential treatment center, to testify by two-way audiovisual transmission at trial. First, the use of the audiovisual procedure was necessary to protect the victim's well-being, an important public policy goal, while also ensuring that the defendant was provided a speedy trial. And second, the audiovisual transmission procedure, as set forth in Supreme Court Rules Part IX-A(B), adequately ensured the reliability of the testimony, as it allowed Lipsitz to cross-examine the victim and the jury could hear and observe the victim.

Lipsitz also argues that the district court abused its discretion in proceeding to trial after the State expressed concerns about his competency. Based on the record before us, we conclude that the district court did not abuse its discretion in proceeding to trial without holding a competency hearing.

Finally, Lipsitz argues that the district court erred in convicting him of both sexual assault and attempted sexual assault because they were based on the same underlying conduct. The State concedes this point and we agree. The State should have charged these counts in the alternative, but did not. The district court then compounded the error by convicting Lipsitz of both counts. As there was insufficient evidence for the sexual-assault conviction (count 2), we reverse that part of the judgment of conviction. We uphold the remaining convictions.

FACTS AND PROCEDURAL BACKGROUND

Lipsitz trespassed into a residential treatment facility, where he sexually assaulted the victim, an 18-year-old patient seeking treatment for substance abuse and trauma related to her experience as a victim of sex trafficking. On the morning in question, the victim fell asleep while reading in the recreation room around 4 a.m. Approximately one hour later, the victim awoke to find Lipsitz, whom she had never seen before, standing at the end of the couch. Lipsitz exposed himself and forced the victim to have sex with him. Lipsitz then attempted to force the victim to perform fellatio on him, but her mouth was closed. And when he failed, he became upset, mumbled something under his breath, and walked away. Another patient and several staff members at the treatment center saw Lipsitz exiting the treatment center through the front gate. He was nearby the center when police officers found him.

Lipsitz was indicted and subsequently invoked his right to a speedy trial. The State moved to allow the victim to testify via simultaneous audiovisual transmission because she was unavailable as a witness for trial. Lipsitz opposed this motion, arguing that it was essential for the victim to be physically present at trial as the case "rises and falls on the victim's credibility." The district court granted the State's motion, reasoning that the victim was unavailable as a witness for trial because she was a patient at an out-of-state treatment center. Moreover, the district court noted that Lipsitz invoked his right to a speedy trial, and he refused to agree to a continuance of the trial for her to be released from the facility. Therefore, the only way she could testify on the dates set for trial was by alternative means: deposition or audiovisual transmission.

During the same hearing, the State informed the district court that Lipsitz had been referred to competency court in a separate case pending in a different department. The district court asked Lipsitz's attorneys whether they had any concerns about his competency; they denied any concerns and urged the district court to proceed to trial. The district court engaged in a lengthy canvas of Lipsitz. At the conclusion of the hearing, the district court stated that it had no basis to doubt Lipsitz's competency because he "seem[ed] to have a clear understanding in terms of the facts [and] his discussion with his attorneys." The next day, the court reconsidered Lipsitz's competency after a sidebar with counsel. Lipsitz stated that he was unaware that he had been referred for a competency evaluation in the other case. The district court canvassed him again to ensure that he understood the charges and that he was able to communicate with and assist his attorneys in his defense. Satisfied with Lipsitz's responses, the district court proceeded to trial.

On the first day of trial, Lipsitz refused to change into a suit, which prompted the court to question his competency again. The district court asked him if he understood that remaining in his jail clothes might prejudice the jury against him, to which he responded "yes." Eventually, Lipsitz agreed to put on a suit. The district court asked Lipsitz's counsel whether they still had no concerns about his competency. Lipsitz's counsel confirmed that they had no concerns and would inform the district court if that changed during the trial. The district court noted for the record that Lipsitz appeared competent.

After the district court impaneled the jury, Lipsitz engaged in an increasingly obstinate exchange with the district court, rebuking the justice system because the district court had allowed the victim to testify by audiovisual transmission and rebuffing his counsel. The district court explained that the use of audiovisual transmission would allow Lipsitz to confront the victim at trial. The court also explained that the victim had submitted "sufficient documentation that she medically cannot appear .... So I mean if we're going forward today, we're going to be going forward with audio/video technology." The court further explained that it approved the use of audiovisual transmission for the victim's testimony, in part, because Lipsitz had invoked his right to a speedy trial.

This angered Lipsitz. It appeared that he misunderstood how the audiovisual technology worked; he thought that the victim's testimony was a prerecording from YouTube. Lipsitz reasserted his lack of confidence in the judge and the trial proceedings. He then waived his right to appear at trial, and the district court ordered his removal from the courtroom.

At trial, the jury heard testimony from several witnesses: the victim who described the sexual assault in detail; several staff members and another patient from the treatment center who saw Lipsitz in and around the building; the sexual assault nurse examiner who treated the victim after the sexual assault; forensic scientists who processed DNA collections from both the victim and Lipsitz; and the police officers who responded to the scene and arrested Lipsitz. The DNA testing revealed Lipsitz's saliva on the victim's mandible, neck, and chest. There was no evidence of sperm or semen from the victim's vaginal and external genitalia and no sperm on Lipsitz's penis or hands. There was also no DNA from the victim on Lipsitz's hands.

After the six-day trial, the jury returned a guilty verdict on all counts except for one count of sexual assault. The district court sentenced Lipsitz to an aggregate sentence of 20 years to life.

DISCUSSION

Lipsitz argues that reversal is warranted because (1) the district court abused its discretion in not suspending proceedings after the State raised concerns about Lipsitz's competency to stand trial; (2) the district court erred in allowing the victim to testify via simultaneous audiovisual transmission from the Florida treatment center where she was a patient, depriving Lipsitz of his Sixth Amendment right under the Confrontation Clause; and (3) the district court erred by convicting Lipsitz of both sexual assault (count 2) and attempted sexual assault (count 3) when the charges stemmed from the same incident.

The district court did not abuse its discretion in proceeding to trial after the State expressed concerns about Lipsitz's competency

Lipsitz argues that the district court was required to halt the trial proceedings and order a competency evaluation after the State expressed concerns about Lipsitz's competency. We review a district court's refusal to order a competency evaluation for an abuse of discretion. Olivares v. State , 124 Nev. 1142, 1148, 195 P.3d 864, 868 (2008).

The Due Process Clause of the Fourteenth Amendment provides that a criminal defendant may not be prosecuted if he or she lacks competence to stand trial. Id. at 1147, 195 P.3d at 868. An incompetent defendant is one who lacks "the present ability to understand either the nature of the criminal charges against him or the nature and purpose of the court proceedings, or is not able to aid and assist his counsel in the defense at any time during the proceedings with a reasonable degree of rational understanding." Id. ; see also NRS 178.400(2)(a)-(c). "[I]f doubt arises as to the competence of the defendant, the court shall suspend the proceedings ... until the question of competence is determined." NRS 178.405(1). "Whether such a doubt is raised is within the discretion of the trial court," Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983), but when the district court receives "substantial evidence that the defendant may not be competent to stand trial," the court must hold a formal competency hearing, Olivares, 124 Nev. at 1148, 195 P.3d at 868 (internal quotation marks omitted).

Our review of the record demonstrates that the district court did not abuse its discretion in proceeding to trial because substantial evidence showed that Lipsitz was competent for trial. The district court conducted an independent assessment of Lipsitz's competency, canvassing him and his counsel, who assured the district court that Lipsitz was competent and requested to proceed to trial. The court relied on defense counsel's assurances, its own interactions with Lipsitz, and his responses to the court's canvass in arriving at its determination that a competency hearing was not warranted. Lipsitz's behavior, while obstinate, did not show a lack of understanding or inability to aid in his defense. Rather, the record shows that Lipsitz was unwilling to aid in his defense. Lipsitz became frustrated because he was not privy to the grand jury proceedings, he was dissatisfied with his public defenders, and he was angry that the victim would be testifying through audiovisual transmission instead of appearing in person. On this record, we cannot conclude that the district court abused its discretion when it proceeded to trial after canvassing Lipsitz and concluding that there was not enough evidence to create doubt as to his competency. See Olivares, 124 Nev. at 1148, 195 P.3d at 868 ; Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113.

Allowing the victim to testify via simultaneous audiovisual transmission, pursuant to the procedure set forth in Nevada Supreme Court Rules Part IX-A(B), did not violate Lipsitz's rights under the Confrontation Clause

Lipsitz contends that it was a violation of his rights under the Confrontation Clause for the district court to allow the victim to testify by two-way audiovisual transmission and that the district court forced him to choose between his right to a speedy trial and his right to confront his accuser. Whether an evidentiary ruling violated the defendant's rights under the Confrontation Clause is a question of law we review de novo. Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009).

The Sixth Amendment's Confrontation Clause provides criminal defendants the right to confront the "witnesses against [them]" and to cross-examine such witnesses who "bear testimony" against them. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004) (internal quotation marks and citation omitted). The elements that comprise the right of confrontation, i.e., "physical presence, oath, cross-examination, and observation of demeanor by the trier of fact," ensure "the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). However, the right to a witness's physical presence at trial is not absolute. As the United States Supreme Court explained in Craig , "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," but that preference "must occasionally give way to considerations of public policy and the necessities of the case." Id. at 849, 110 S.Ct. at 3165 (internal quotation marks and citation omitted). The Supreme Court held that "a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S.Ct. at 3166. At issue in Craig was a state statute that allowed child witnesses to testify via a one-way closed-circuit television in child abuse cases. The Supreme Court concluded that the use of the one-way closed-circuit television procedure did not violate the defendant's right to confrontation because (1) it was necessary to further the State's interest in protecting the child victim from emotional trauma that the child would suffer by having to testify in the defendant's presence, and (2) the procedure adequately preserved the other elements of confrontation, thereby providing indicia of reliability. Id. at 851-57, 110 S.Ct. at 3166-70. The Supreme Court emphasized that the procedure could be used only after the trial court hears evidence and makes a case-specific finding that the procedure is "necessary to further an important state interest." Id. at 852-55, 110 S.Ct. at 3167.

Craig involved one-way video transmission and did not answer whether the same standard would apply to two-way video transmission, whereby the defendant and the victim can see and hear each other simultaneously. See Wrotten v. New York , 560 U.S. 959, 959, 130 S.Ct. 2520, 2520, 177 L.Ed.2d 316 (2010) (explaining that whether the use of two-way video transmission violated a defendant's rights was an important question that was "not obviously answered by Maryland v. Craig "). Nonetheless, many other jurisdictions that have addressed this issue have allowed the use of two-way transmission only where the Craig standard is met. See, e.g., United States v. Carter, 907 F.3d 1199, 1206 (9th Cir. 2018) ; United States v. Yates, 438 F.3d 1307, 1313-17 (11th Cir. 2006) ; United States v. Bordeaux, 400 F.3d 548, 554-55 (8th Cir. 2005) ; State v. Rogerson, 855 N.W.2d 495, 504-06 (Iowa 2014) ; White v. State, 223 Md.App. 353, 392-94, 116 A.3d 520, 544 (2015). We likewise agree that the requirements articulated in Craig apply to two-way audiovisual transmission.

Applying the Craig test to the two-way technology used here, we conclude that the district court did not abuse its discretion in allowing the victim to testify by audiovisual transmission. First, the district court made the requisite finding of necessity. There is no dispute that the victim in this case was a patient at a residential drug treatment facility in Florida, and the victim's doctor opined that she "w[ould] not be available for a number of months." Admission into a treatment center for a prolonged period is a legitimate basis for the district court to find that a witness is medically unavailable to appear at trial. Cf. Horn v . Quarterman, 508 F.3d 306, 317-18 (5th Cir. 2007) (allowing two-way video testimony of a witness too ill to travel); United States v. Gigante, 166 F.3d 75, 81-82 (2d Cir. 1999) (same); People v. Wrotten, 14 N.Y.3d 33, 36-38, 39-41, 896 N.Y.S.2d 711, 712-13, 714-15, 923 N.E.2d 1099, 1101, 1103 (N.Y. 2009) (same). Additionally, Lipsitz's insistence on a speedy trial and his refusal to continue the trial until the victim was released from the treatment facility contributed to the district court's decision to grant the State's motion to allow the victim to testify remotely at trial. The district court explained that because Lipsitz had invoked "his right to go to trial next week, then it seem[ed] ... that [the victim] is essentially unavailable, which would allow for either a deposition to be taken of the witness or use in this case of the audiovisual technology." Thus, absent this form of technology, the victim could not have appeared for the trial scheduled the following week. As a result, we conclude that use of the technology under these circumstances furthered the important public policy of protecting the victim's well-being while also protecting the defendant's right to a speedy trial while ensuring that criminal cases are resolved promptly.

Second, the use of two-way audiovisual transmission, as set forth in Nevada Supreme Court Rules Part IX-A(B), provides indicia of reliability by satisfying the elements of confrontation enunciated in Craig . It allows the witness to swear under oath, the defendant can cross-examine the witness, and the court and jury have the ability to observe the witness's demeanor and judge her credibility. The victim-witness here complied with these elements. She swore to tell the truth, the defense cross-examined her, and the judge and jury had an opportunity to observe her demeanor and judge her credibility. The district court noted for the record that the video worked better than in-court testimony because the jury was better able to observe her demeanor, she answered all the questions, the audio was clear, both parties had a chance to question her, and there was nothing to preclude the defendant from testing her credibility. The technology sufficiently provided Lipsitz an opportunity to confront the victim.

Accordingly, we conclude that the district court did not abuse its discretion in allowing the victim to testify by two-way audiovisual transmission. The technology allowed Lipsitz to confront the victim when she would have otherwise been unavailable, public policy supports the use of this technology to protect a victim's well-being while also ensuring that a defendant has a speedy trial, and the procedure for this modern technology satisfies the elements of confrontation.

Lipsitz's conviction for both sexual assault and attempted sexual assault based on the same conduct was error, and there was insufficient evidence to uphold the sexual assault charge

Lipsitz argues that the district court erred in adjudicating him of both sexual assault (count 2) and attempted sexual assault (count 3) because both charges stemmed from a single act-touching his penis to the victim's closed mouth-and he could not be convicted of both attempting and completing the same act. Lipsitz argues that we should vacate the sexual assault charge because there was no penetration and the conduct therefore amounted only to an attempted sexual assault. The State concedes that both convictions cannot stand. It contends that the conviction for sexual assault is valid because the definition of sexual assault by fellatio, as presented to the jury in jury instructions, allowed a touching to be sufficient for assault if there is "oral stimulation of the penis for sexual satisfaction." We agree that both convictions cannot stand as they were based on the same underlying conduct. The State should have charged counts 2 and 3 in the alternative, but it failed to do so. Accordingly, we review to determine whether there was sufficient evidence to support a conviction for the greater of the two charges, sexual assault. Under a sufficiency of evidence standard of review, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; see also Origel-Candido v. State , 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).

NRS 200.366(1)(a) defines sexual assault as "subject[ing] another person to sexual penetration." NRS 200.364(9), as relevant here, defines " '[s]exual penetration' " as "fellatio, or any intrusion, however slight, of any part of a person's body." Further, "to prove attempted sexual assault, the prosecution must establish that (1) [the defendant] intended to commit sexual assault; (2) [the defendant] performed some act toward the commission of the crime; and (3) [the defendant] failed to consummate its commission." Van Bell v. State , 105 Nev. 352, 354, 775 P.2d 1273, 1274 (1989) (citing NRS 193.330 ); see also Crawford v. State, 107 Nev. 345, 351, 811 P.2d 67, 71 (1991) (explaining that the element requiring that the actor fail to complete the crime in an attempt crime precludes the conviction for the completed crime for the same conduct). Thus, for the sexual assault conviction to stand, there must have been sufficient evidence that Lipsitz consummated the act of fellatio.

In Maes v. Sheriff , we explained that fellatio does not require penetration. 94 Nev. 715, 716, 582 P.2d 793, 794 (1978). Instead, fellatio is "the practice of obtaining sexual satisfaction by oral stimulation of the penis." Id. (quoting Webster's Third New International Dictionary (Unabridged, 1968)). In Maes , this court concluded that the State met its burden of proving that the defendant sexually assaulted the victim by licking the victim's penis because there was oral stimulation, despite the absence of an intrusion. Id.

Here, the victim testified that there was no penetration: "His penis touched the tip of my mouth but my mouth was not open." And when asked how many times Lipsitz's penis touched her lips, the victim responded, "[j]ust once." A single touching of the defendant's penis to the victim's closed lips is insufficient to demonstrate oral stimulation of the penis and does not meet the definition of fellatio. See id. Instead, it is an attempted and failed sexual assault. Crawford, 107 Nev. at 351, 811 P.2d at 71. Therefore, we conclude that there was insufficient evidence to sustain the conviction for sexual assault, and we vacate the conviction for sexual assault (count 2) and remand the case to the district court with instructions to amend the judgment of conviction consistent with this opinion.

CONCLUSION

Based on the foregoing, we conclude that the district court did not abuse its discretion in proceeding to trial after canvassing Lipsitz and his counsel and determining that there was no doubt as to his competency. The court likewise did not abuse its discretion in allowing the victim to testify via two-way audiovisual transmission because this technology satisfied the Confrontation Clause's requirements, as stated in Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). We further conclude that Lipsitz could not be convicted of both sexual assault and attempted sexual assault for the same act, and there was insufficient evidence to support the conviction for sexual assault (count 2). Accordingly, we reverse Lipsitz's conviction for count 2 and remand this matter to the district court with instructions to amend the judgment of conviction consistent with this opinion. We affirm Lipsitz's judgment of conviction on all other grounds.

We concur:

Stiglich, J.

Silver, J.

      The State informed the district court that Lipsitz had been referred to competency court in another department, but there is nothing in the record confirming that the other department made a competency determination. We note that NRS 178.405(2) requires that once a department suspends proceedings pending a competency hearing, it must provide written notice to all other departments. Nothing in the record shows that the other department actually suspended its proceedings or provided written notice to the district court that Lipsitz was not competent, and the parties did not make any argument on this point.

      We have considered Lipsitz's other claims of error and conclude that they lack merit. While he argues that there was insufficient evidence to convict him on all other counts, he fails to challenge a specific count and articulate how there was insufficient evidence to support a conviction. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court."). As to his constitutional challenge to NRS 50.700 -the statutory prohibition on court-ordered psychological evaluations of victims of sexual assault-the record shows that Lipsitz never sought an examination, a point he concedes on appeal. He cannot therefore argue that the district court erred in denying him the examination. Nor does he argue that the district court erred in failing to sua sponte order an evaluation. Accordingly, we conclude that he has waived this claim on appeal, and we decline to reach its merits. See Blankenship v. State, 132 Nev. 500, 505 n.2, 375 P.3d 407, 411 n.2 (2016) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal." (quoting Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) )). Finally, as to his claim that the cumulative effect of errors at trial warrants reversal, we have found only one error-his conviction for sexual assault (count 2)-and thus there are no errors to cumulate.


source: Caselaw Access Project

license: Public Domain

text:
    COGBURN STREET TRUST, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, Successor in Interest TO WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee for the Holders of the Banc of America Funding Corporation Mortgage Pass-through Certificates, Series 2004-C, Respondent.
    No. 74516
    Supreme Court of Nevada.
    FILED MAY 31, 2019
    AFFIRMED.


author: By the Court, STIGLICH, J.:

text:
    The ORIGINAL ROOFING COMPANY, LLC, Appellant, v. CHIEF ADMINISTRATIVE OFFICER OF the OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Division of Industrial Relations of the Department of Business and Industry, State of Nevada, Respondent.
    No. 74048
    Supreme Court of Nevada.
    FILED JUNE 06, 2019
    Marquis Aurbach Coffing and Thomas W. Stewart, Micah S. Echols, and Adele V. Karoum, Las Vegas, for Appellant.
    State of Nevada Department of Business and Industry, Division of Industrial Relations, and Salli Ortiz, Carson City, for Respondent.
    BEFORE HARDESTY, STIGLICH and SILVER, JJ.
   By the Court, STIGLICH, J.:

When an employer challenges a citation issued for a workplace safety violation, Nevada's Occupational Safety and Health Administration bears the burden of establishing, as part of its prima facie case, all of the essential elements of the charged violation, including that the employer had actual or constructive knowledge of the violative conduct. A supervisor's knowledge that his or her own work practices violated safety laws (or the supervisor's knowledge that employees under his or her supervision were not complying with such laws) will not be imputed to the employer unless the supervisor's violative conduct was foreseeable. Because respondent did not demonstrate the employer's actual knowledge of the violative conduct or that the supervisor's violative conduct was foreseeable under the circumstances presented, we conclude the Review Board properly overturned the citation for lack of employer knowledge. We therefore reverse the district court's order granting judicial review.

BACKGROUND

In July 2015, a Compliance Safety and Health Officer for Nevada Occupational Safety and Health Administration (NOSHA) conducted a safety inspection at a jobsite in Henderson, Nevada. The inspector noted that an employee and a supervisor for appellant, The Original Roofing Company, LLC (TORC), were working on a steep roof without fall protection as required by federal regulation. See 29 C.F.R. 1926.501(b)(11) (requiring all employees to use fall protection equipment when "on a steep roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels"), Both the employee and the supervisor told the inspector that they received training from TORC on fall protection and knew they were required to use it on the steep roof on which they were working. Both men admitted they disregarded their training because they found it easier to accomplish their work without using the fall protection equipment.

The inspector imputed knowledge to TORC that its employees were not utilizing fall protection because TORC's supervisor knew of, and engaged in, the violative conduct. NOSHA issued a citation against TORC for one violation of 29 C.F.R. 1926.501(b)(11). TORC contested the citation in a letter to NOSHA, and respondent, the Chief Administrative Officer of NOSHA, then filed a complaint with the Nevada Occupational Safety and Health Review Board (Review Board).

The Review Board held a hearing on the complaint and entered a written order, in which it concluded that respondent failed to demonstrate a violation of OSHA law. Specifically, the Review Board found that while the supervisor here ignored his training to undertake a task in violation of known safety regulations and allowed the employee under his supervision to do the same, respondent did not demonstrate that TORC knew of the violative conduct at issue. The Review Board concluded the supervisor's knowledge of his own violative conduct could not be imputed to TORC because respondent failed to demonstrate that the conduct was foreseeable in light of the evidence submitted by TORC pertaining to the company's efforts to ensure compliance with OSHA laws.

Respondent petitioned the district court for judicial review of the Review Board's order. The district court granted the petition and reversed the order, holding that the Review Board lacked sufficient evidence to support its factual findings and legal conclusions. TORC appealed.

DISCUSSION

Our role in reviewing an administrative agency's decision is identical to that of the district court-we review the agency's decision for clear error or an arbitrary and capricious abuse of discretion and will overturn the agency's factual findings only if they are not supported by substantial evidence. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013). An agency's fact-based conclusions of law are entitled to deference when supported by substantial evidence; however, purely legal questions are reviewed de novo. Law Offices of Barry Levinson, P.C. v. Milko , 124 Nev. 355, 362, 184 P.3d 378, 383-84 (2008). "Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion." City Plan Dev., Inc. v. State, Office of Labor Comm'r, 121 Nev. 419, 426, 117 P.3d 182, 187 (2005).

Pursuant to NAC 618.788, the Chief Administrative Officer of NOSHA carries the burden of proof in demonstrating a violation of OSHA law by establishing: (1) the applicability of the OSHA regulation; (2) noncompliance with the OSHA regulation; (3) employee exposure to a hazardous condition; and (4) the employer's actual or constructive knowledge of the violative conduct. See Secreta r y of Labor v. Atl. Battery Co., 16 BNA OSHC 2131, 2135, 1994 WL 682922 (No. 90-1747, 1994). The parties agree respondent established the first three elements of a prima facie violation of OSHA law in that 29 C.F.R. 1926.501(b)(11) applied to TORC's roofing activities; the employee and the supervisor violated the regulation by failing to utilize fall protection; and the failure to utilize fall protection exposed TORC employees to a hazardous condition. Respondent never alleged TORC had actual knowledge of the violative conduct at issue. Thus, whether TORC had constructive knowledge of this violative conduct remains for this court's review.

Employer knowledge is established by demonstrating "that the employer either knew, or, with the exercise of reasonable diligence, could have known of the presence of the violative condition." Pride Oil Well Serv ., 15 BNA OSHC 1809, 1814 (No. 86-692, 1992) (discussing federal OSHA criteria). Generally, an employer is imputed with a supervisor's knowledge of deviations from OSHA's safety rules to encourage employers to exercise reasonable diligence to ensure OSHA compliance by their employees. See Adm'r of Div. of Occupational Safety & Health v. Pabco Gypsum, 105 Nev. 371, 373, 775 P.2d 701, 702-03 (1989). An employer's exercise of reasonable diligence includes the obligation to anticipate potential hazardous conditions, take measures to prevent those conditions, and to inspect worksites. See Pride Oil Well Serv., 15 BNA OSHC at 1814. Imputing knowledge to an employer through a supervisor is inappropriate, however, when the record does not demonstrate that the employer could have foreseen the supervisor's violative conduct. See NRS 618.625(2) (providing that "serious violations" exist when there is substantial probability that death or serious physical harm could result from practices used in the workplace "unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation").

To hold an employer absolutely liable in all circumstances without regard for that employer's efforts to comply with OSHA's regulations would amount to strict liability and discourage OSHA compliance efforts. See, e.g., Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396, 399 (4th Cir. 1979). As a number of federal appellate courts have observed, employer knowledge of a workplace safety violation must be actual or constructive and may not be demonstrated vicariously simply by establishing a supervisor engaged in the violative conduct. See ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1316 (11th Cir. 2013) ;

W.G . Yates & Sons Constr. Co. v. Occupational Safety & Health Review Comm'n, 459 F.3d 604, 608-09 (5th Cir. 2006) ; Pa. Power & Light Co. v. Occupational Safety & Health Review Comm'n, 737 F.2d 350, 354 (3d Cir. 1984) ; Mountain States Tel. & Tel. Co. v. Occupational Safety & Health Review Comm'n, 623 F.2d 155, 157-58 (10th Cir. 1980) ; Ocean Elec. Corp., 594 F.2d at 401. We agree with those decisions and hold an employer's knowledge of violative conduct must be established "not vicariously through the violator's knowledge, but by either the employer's actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor." ComTran Grp., Inc., 722 F.3d at 1316. In doing so, we recognize that such constructive knowledge could be based on any number of factors that evidence that the employer failed to enforce adequate safety standards. Ultimately, however, "a supervisor's knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, and discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable." W.G. Yates , 459 F.3d at 608-09.

In light of the evidence presented at its hearing, substantial evidence supports the Review Board's fact-based legal conclusions regarding the lack of foreseeability of the supervisor's violation and TORC's efforts to comply with OSHA's safety regulations. See Milko, 124 Nev. at 362, 184 P.3d at 383-84. Specifically, TORC presented evidence of the company's efforts to comply with OSHA regulations and build its safety practices to address past violations and foster a culture of safety, including that it (1) spent roughly $ 170,000 on safety programs after its two previous citations, including the creation of a training facility equipped with a mock roof used to demonstrate to employees how to properly anchor their fall protection; (2) used a fall protection agreement form, requiring employees to acknowledge the TORC's safety policy; (3) had superintendents visit jobsites daily to check for safe practices and complete corresponding inspection forms, which were tied to an incentive program; (4) held meetings to review safety practices; (5) conducted safety audits; and (6) issued written notices to employees who violated safety rules and immediately scheduled those employees for retraining. The record thus supports the Review Board's findings that TORC exercised reasonable diligence to ensure safety compliance by implementing a safety program, making fall protection equipment readily available, holding training meetings, requiring employee acknowledgment of policies, adopting an incentive program tying bonuses to following safety protocols, disciplining noncompliant employees, and by having superintendents conduct field audits and site inspections. See Pride Oil Well Serv ., 15 BNA OSHC at 1814. The Review Board properly rejected respondent's argument that TORC had constructive knowledge of the violative conduct given TORC's citations for similar violations in 2012 and 2013 that showed TORC that this was a problem. While the Review Board incorrectly found respondent did not offer any evidence that TORC previously employed foremen who did not enforce fall protection requirements, the record shows that TORC's previous violations involved different foremen. We agree with TORC that it was not foreseeable that this foreman would not enforce fall protection safety requirements because TORC made significant safety improvements to prevent conduct like that of the previous violations after those citations.

Accordingly, the Review Board did not abuse its discretion in overturning the citation, as substantial evidence supports its conclusion that NOSHA failed to demonstrate TORC's knowledge of the violative conduct at issue. See Elizondo, 129 Nev. at 784, 312 P.3d at 482. Therefore, the district court erred in reversing the Review Board's decision.

In accordance with the foregoing analysis, we reverse the district court's order granting judicial review.

We concur:

Hardesty, J.

Silver, J.

      Generally, federal Occupational Safety and Health Administration (OSHA) standards are deemed to be Nevada occupational safety and health standards. NRS 618.295(8).

      The violation was classified as "repeat-serious" because TORC had been previously cited for similar violations in January 2012 and July 2013 (committed by different supervisors and employees than those in the underlying violation) and serious injuries are likely to result from falls. See NRS 618.625(2) (outlining a serious violation of OSHA law).

      The Review Board also concluded that even if respondent had shown that TORC violated an OSHA law, TORC established the affirmative defense of unpreventable employee misconduct. Because we agree with the Review Board's conclusion that respondent failed to present a prima facie case for an OSHA violation, we need not reach this issue.


text:
    LN MANAGEMENT LLC SERIES 845 COASTAL BEACH, Appellant, v. WELLS FARGO BANK, N.A., Respondent.
    No. 77881
    Supreme Court of Nevada.
    FILED JUNE 12, 2019
    Dismissed.


text:
    MICHAEL HOHL CARSON VALLEY, a Nevada Corporation; T. Michael Hohl, an Individual; and Karen Findlay Hohl, an Individual, Appellants, v. HELLWINKEL FAMILY LIMITED PARTNERSHIP, a Nevada Limited Partnership; Hellwinkel Family, LLC, a Nevada Limited Liability Company; C.O.D. Garage Company, a Nevada Corporation; and Hellwinkel Enterprises, Inc., a Nevada Corporation Respondents.
    No. 73285
    Supreme Court of Nevada.
    FILED JUNE 7, 2019
    REVERSED. REMAND.


text:
    TRP FUND IV, LLC, a Domestic Non-profit Corporation, Appellant, v. DITECH FINANCIAL LLC, f/k/a Green Tree Servicing LLC, a Minnesota Corporation, Respondent.
    No. 77927
    Supreme Court of Nevada.
    FILED JUNE 06, 2019
    Dismissed.


text:
    VISION AIRLINES, INC., a Nevada Corporation, Appellant, v. CLARK COUNTY DEPARTMENT OF AVIATION; North Las Vegas Justice Court ; and the Honorable Kalani K. Hoo, Justice of the Peace, Respondents.
    No. 76511
    Supreme Court of Nevada.
    FILED JUNE 06, 2019
    Dismiss.


text:
    In the MATTER OF DISCIPLINE OF Michael A. HAGEMEYER, Bar No. 5344.
    No. 78184
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    Suspend.


text:
    CITY OF LAS VEGAS, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Rob Bare, District Judge, Respondents, and Bruce Branscomb, Real Party in Interest.
    No. 77872
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    DENIED.


text:
    Keith Arlando BURWELL, Petitioner, v. The STATE of Nevada, Respondent.
    No. 78826
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    DENIED.


text:
    SIERRA PACIFIC INDUSTRIES, a California Corporation, Appellant, v. Tim WILSON, P.E., in His Capacity as Nevada State Engineer; the Division of Water Resources, Department of Conservation and Natural Resources, an Agency of the State of Nevada; and IWS Basin, LLC., a Nevada Limited Liability Company, Respondents.
    No. 77413
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    Dismisses. Remands.


text:
    Simone WCIORKA, Appellant, v. Cesar MALAGA, Respondent.
    No. 77030
    Supreme Court of Nevada.
    FILED JUNE 12, 2019
    Dismissed.


text:
    In the MATTER OF DISCIPLINE OF David L. MANN, Bar No. 11194.
    No. 78366
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    Suspend.


text:
    Pablo DEHOYOS-MALDONADO, Petitioner, v. The STATE of Nevada, Respondent.
    No. 78887
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    DENIED.


text:
    Arnoldo RODELO, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 78717
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    DISMISSED.


text:
    Stephen CHOATE, Petitioner, v. The FIFTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF NYE, Respondent, and Brian Williams, Warden, Real Party in Interest.
    No. 78888
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    DENIED.


author: DAVID B. LEWIS, Presiding Judge LEWIS, PRESIDING JUDGE, DISSENTING:

text:
    Salvador MARTINEZ, Petitioner, v. The STATE of Oklahoma, Respondent.
    No. PC-2017-322
    Court of Criminal Appeals of Oklahoma.
    FILED MAY 9, 2019
    ORDER DENYING MOTION TO SUPPLEMENT THE RECORD ON APPEAL, AND DENYING POST-CONVICTION RELIEF
    ¶ 1 The Petitioner has appealed to this Court from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CF-2004-4488. Petitioner has also tendered for filing a motion to supplement the record in this matter with the transcripts of his jury trial and sentencing hearings. The Clerk of this Court is directed to file the tendered motion. Petitioner has not established that those transcripts are a necessary part of the record in this matter. See Rule 5.2(C)(6), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019). The motion to supplement the record is DENIED .
    ¶ 2 Petitioner was sixteen years old when he committed his crimes in Case No. CF-2004-4488. He was convicted by a jury of Murder in the First Degree (Count 1) and Shooting with Intent to Kill (Counts 2 and 3). He was sentenced in accordance with the jury's verdict to life imprisonment on Count 1, and fifteen years imprisonment on each of Counts 2 and 3, with the sentences ordered to run consecutively. Petitioner appealed to this Court and his Judgment and Sentence was affirmed. Martinez v. State , No. F-2006-1027 (Okl.Cr. February 11, 2008) (not for publication).
    ¶ 3 Petitioner's arguments in this matter are primarily based upon this Court's decision in Luna v. State , 2016 OK CR 27, 387 P.3d 956, and the United States Supreme Court decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding the Eighth Amendment's cruel and unusual punishments clause forbids a sentencing scheme that mandates life in prison without the possibility of parole for all juvenile offenders) and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller announced a new substantive rule of constitutional law that must be applied retroactively in cases on collateral review). The Supreme Court had previously held that the Eighth Amendment's cruel and unusual punishments clause categorically prohibits imposition of life without parole sentences on juvenile offenders who committed non-homicide offenses. Graham v. Florida , 560 U.S. 48, 74, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010).
    ¶ 4 After the District Court issued its order denying Petitioner's application for post-conviction relief, the United States Court of Appeals for the Tenth Circuit issued its decision in Budder v. Addison , 851 F.3d 1047 (10th Cir.), cert. denied , --- U.S. ----, 138 S.Ct. 475, 199 L.Ed.2d 374 (2017). In Budder , the juvenile defendant was convicted of two counts of first degree rape, one count of assault and battery with a deadly weapon, and one count of forcible oral sodomy committed when he was sixteen years old. Id. at 1049. His sentence, as modified by this Court, totaled three life terms plus twenty years all to be served consecutively, making him eligible for parole only after serving 131.75 years in prison. Id. at 1049-50. The Tenth Circuit, viewing the four sentences in the aggregate as though they were one, interpreted Graham and its progeny as applying to "any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label 'life without parole.' " Id. at 1057.
    ¶ 5 Budder was a federal habeas action brought pursuant to 28 U.S.C. § 2254, under which a federal court may grant relief upon a finding that a state court's ruling was an unreasonable application of federal law as determined by the United States Supreme Court. The Tenth Circuit held it clearly established that Graham applied to offenders with multiple crimes and multiple charges. Budder , 851 F.3d at 1057. However, we do not find it clearly established law, and on the contrary, find it is a question which continues to divide state and federal courts. Missouri, Colorado, Pennsylvania, and Minnesota are among those states that have held that each individual sentence must be analyzed separately under the Eighth Amendment. See Commonwealth v. Foust, 2018 Pa. Super. 39, 180 A.3d 416 (2018) ; Willbanks v. Dep't of Corr. , 522 S.W.3d 238, (Mo.), cert. denied , --- U.S. ----, 138 S.Ct. 304, 199 L.Ed.2d 125 (2017) ; Lucero v. People , 2017 CO 49, 394 P.3d 1128, cert. denied , --- U.S. ----, 138 S.Ct. 641, 199 L.Ed.2d 544 (2018) ; State v. Ali , 895 N.W.2d 237 (Minn. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 640, 199 L.Ed.2d 543 (2018). Other state and federal courts have held that the cumulative effect of multiple sentences is the benchmark for compliance with the Eighth Amendment. See Budder , 851 F.3d at 1057, 1059 (holding multiple sentences which, when considered in the aggregate, would have required juvenile defendant to serve 131.75 years prior to parole eligibility for non-homicide offenses, violated the Eighth Amendment); State v. Ramos , 187 Wash. 2d 420, 439, 387 P.3d 650, 660 (2017) ("Whether that sentence is for a single crime or an aggregated sentence for multiple crimes, we cannot ignore that the practical result is the same."), cert. denied , --- U.S. ----, 138 S.Ct. 467, 199 L.Ed.2d 355 (2017). This Court has an independent duty and authority to interpret decisions of the United States Supreme Court. Brown v. State, 1997 OK CR 1, ¶ 24, 933 P.2d 316, 323 ("While it is true that the Supremacy Clause of the United States Constitution demands that state law yield to federal law, it is also true that neither the federal Supremacy Clause nor any other principle of law requires that this state court's interpretation of federal law give way to a lower federal court's interpretation."). See also Johnson v. Williams , 568 U.S. 289, 305, 133 S.Ct. 1088, 1098, 185 L.Ed. 2d 105 (2013) ("But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law."); Evans v. Thompson, 518 F.3d 1, 8 (1st Cir. 2008) ("State courts are not bound by the dictates of the lower federal courts, although they are free to rely on the opinions of such courts when adjudicating federal claims."); Surrick v. Killion, 449 F.3d 520, 535 (3d Cir. 2006) ("[D]ecisions of the federal district courts and courts of appeal[s], including those of the Third Circuit Court of Appeals, are not binding on Pennsylvania courts, even when a federal question is involved.") (internal quotation omitted); Freeman v. Lane , 962 F.2d 1252, 1258 (7th Cir. 1992) ("In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.")(internal quotations omitted).
    ¶ 6 We also note that Budder involved non-homicide offenses and nowhere in the opinion does it address juvenile homicide offenders. In this case, Martinez was sixteen years old when he and two fellow gang members walked up to a residence and opened fire with a revolver and an assault rifle. While driving away, they fired additional shots at the residence from their vehicle. Two adult women inside were wounded and a nine-year-old boy sleeping on the couch was killed by the gunfire. According to the transcript of his sentencing hearing, Martinez was accused in four previous drive-by shootings and, at the time of the shooting in this case, was wearing a GPS ankle monitor while on pre-trial release concerning one of those prior shootings. If his sentences are considered in the aggregate and his sentences of life in prison plus thirty years constitute one de facto sentence of life without parole, and if Martinez is not found to be incorrigible, one or more of his heinous crimes are likely to be forever erased for purposes of sentencing. This is troubling, because even after Graham , Miller , and Montgomery , "defendants convicted of multiple offenses are not entitled to a 'volume discount' on their aggregate sentence." Foust , 2018 Pa. Super. 39, 180 A.3d at 434. Thus, we hold that where multiple sentences have been imposed, each sentence should be analyzed separately to determine whether it comports with the Eighth Amendment under the Graham / Miller / Montgomery trilogy of cases, rather than considering the cumulative effect of all sentences imposed upon a given defendant.
    ¶ 7 Petitioner claims that he is currently scheduled for parole consideration on his life sentence on Count 1 in October of 2042, when he will be 54 years old. He calculates that he will have to serve an additional 25½ years, 85% of his two 15 year sentences, before being eligible for parole on Counts 2 and 3. Petitioner claims he will thus not be eligible for release on parole until he is 79 years old, which he claims is past his life expectancy. Petitioner argues that his consecutive sentences in Case No. CF-2004-4488 constitute a de facto sentence of life without parole for a crime committed as a juvenile and thus, his sentences violate the United States and Oklahoma Constitutions' ban on cruel and unusual punishment, pursuant to Miller and Montgomery . We find that they do not.
    ¶ 8 A State is not required to guarantee eventual freedom to a juvenile offender. Graham , 560 U.S. at 74, 130 S.Ct. at 2030 ; Miller , 567 U.S. at 479, 132 S.Ct. at 2469. Based upon the length of Petitioner's sentences and the current status of the law, we find that Petitioner has some meaningful opportunity to obtain release on parole during his lifetime. Petitioner's post-conviction appeal should be, and is hereby, DENIED .
    ¶ 9 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued forthwith upon the filing of this decision with the Clerk of this Court.
    ¶ 10 IT IS SO ORDERED.
    /s/ David B. Lewis-Dissent-Writing Attached

      Budder's jury fixed his punishment on the two rape charges at life imprisonment without the possibility of parole, but those sentences were modified on direct appeal to life terms with the possibility of parole.

   DAVID B. LEWIS, Presiding Judge

/s/ Dana Kuehn-I dissent and join Judge Lewis.

DANA KUEHN, Vice Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Judge

/s/ Robert L. Hudson, Special Concur w/ writing

ROBERT L. HUDSON, Judge

/s/ Scott Rowland

SCOTT ROWLAND, Judge

HUDSON, J., SPECIALLY CONCUR:

¶ 1 I concur in today's Order. I write separately to expand upon the Court's holding that when a juvenile offender is convicted of multiple offenses, each sentence imposed should be analyzed separately under the Eighth Amendment. To hold otherwise would effectively give crimes away. See Pearson v. Ramos , 237 F.3d 881, 886 (7th Cir. 2001) ("[I]t is wrong to treat stacked sanctions as a single sanction. To do so produces the ridiculous consequence of enabling a prisoner, simply by recidivating, to generate a colorable Eighth Amendment claim."); see also O'Neil v. Vermont , 144 U.S. 323, 331, 12 S. Ct. 693, 696-97, 36 L.Ed. 450 (1892) (observing that "[i]f the penalty were unreasonably severe for a single offense, the constitutional question might be urged; but here the unreasonableness is only in the number of offenses which the respondent has committed."). The "Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes." Hawkins v. Hargett, 200 F.3d 1279, 1285 n.5 (10th Cir. 1999). "If [Martinez] has subjected himself to a severe penalty, it is simply because he committed a great many [ ] offences." O'Neil, 144 U.S. at 331, 12 S. Ct. at 696-97.

LEWIS, PRESIDING JUDGE, DISSENTING:

¶ 1 I respectfully dissent. The Eighth Amendment, as interpreted in Miller v. Alabama , imposes substantive limitations on a State's permanent imprisonment of juvenile homicide offenders. The majority intends to take the narrowest possible approach to these limitations in as many cases and for as long as possible, until the United States Supreme Court enjoins it to do otherwise. I would grant post-conviction relief according to principles already clearly established in Miller .

¶ 2 The Court today seeks to avoid Miller's constitutional limitations in two disagreeable ways. The first, and most doubtful, is the contrivance of viewing a series of consecutive sentences without regard to their aggregate effect and probable administration by State corrections officials. The second is the Court's admittedly cunning suggestion that no clearly established federal law is involved in its method, by which the Court hopes to insulate its extreme approach from unwelcome scrutiny in federal habeas proceedings. I part with the majority in my view that Miller logically dictates and clearly establishes enforceable limits on the State's power to punish Petitioner and others like him.

¶ 3 If consecutive sentences imposed on a juvenile homicide offender, considered in the aggregate, guarantee that the offender will die in prison without any reasonable opportunity to obtain release, the offender's punishment is equivalent to life without parole. Life without parole is a legal punishment for a juvenile homicide offender, but it must either comply with, or yield to, the constitutional limitations established in Miller , even if the conviction and punishment was final when Miller was decided. Montgomery v. Louisiana, 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller is retroactive to final cases).

¶ 4 In this case, the aggregate term of imprisonment on these consecutive sentences guarantees that Petitioner will die in prison before he has a reasonable opportunity for release on parole. Considering Petitioner's life expectancy, his current chances of an eventual opportunity to plead for release on parole are at best slim, and, more realistically, none. This life without parole-equivalent punishment, imposed without a finding that Petitioner was an irreparably corrupt or permanently incorrigible juvenile, clearly violates the Eighth Amendment.

¶ 5 I would remedy this constitutional error practically, inexpensively, and immediately, by affirming the sentence of life imprisonment with the possibility of parole for murder, and modifying the other terms to be served concurrently. Montgomery , 577 U.S. at ----, 136 S.Ct. at 736 (holding that a State may remedy a Miller violation, without re-litigating the sentence, by affording the offender an opportunity for eventual release on parole).

¶ 6 I am authorized to state that Judge Kuehn joins in this dissenting opinion.