State Court of Appeals weighs in on judicial discretion

Nevada’s new Court of Appeals issued its first published opinion Thursday, a day after hearing oral arguments for the first time.

In its opinion, the court upheld the prison sentence imposed on Jimmy Pitmon in an attempted lewdness case. The court did not hear oral arguments in the case.

Published opinions, known as advance opinions, are intended to clarify the law and can be cited as precedent to help resolve future cases.

Pitmon, who was accused of fondling the genitals of three 4-year-old children, pleaded guilty in two separate cases to attempted lewdness with a child.

He received the maximum possible sentence in the first case: eight to 20 years. Two days later, Clark County District Judge Douglas Herndon imposed the same sentence in the second case and ordered Pitmon to serve the prison terms consecutively.

Under Nevada law, Herndon could have imposed either a concurrent or consecutive sentence.

But Pitmon’s lawyers challenged the constitutionality of the statute that gave the judge that discretion. They argued that the statute was too vague.

The appeals court concluded that the statute is not unconstitutionally vague and that Herndon did not abuse his discretion by ordering Pitmon to serve consecutive sentences.

“It seems to the court that the imposition of consecutive sentences for the commission of two separate crimes would represent an outcome reasonably to be expected by persons of ordinary intelligence,” according to the opinion.

According to the Nevada Department of Corrections website, Pitmon is 55 and serving his time at the Lovelock Correctional Center.

Voters approved the creation of the Court of Appeals in November by allowing an amendment to Article 6 of Nevada’s Constitution.

Gov. Brian Sandoval appointed the court’s three judges: Michael Gibbons, Jerome Tao and Abbi Silver. They were sworn in on Jan. 5.

Tao authored the unanimous, 13-page opinion in the Pitmon case.

The appeals court heard oral arguments in four cases Wednesday in its Las Vegas courtroom.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @CarriGeer.