Convicted bank robber Steven John Simmons is entitled to a new sentencing hearing because Judge Michael Gibbons' consideration of the defendant's refusal to admit guilt violated his Fifth Amendment rights, the Nevada Supreme Court ruled Thursday.
The court upheld Simmons' conviction, but said the 28-year-old Mammoth Lakes snowboarder deserved a new sentencing hearing before a different judge.
He was sentenced in March to 20 years in prison for the Nov. 22, 2005, armed robbery of the Minden branch of Bank of America.
A masked man burst into the branch near closing with a loaded 9 mm Glock handgun and demanded money.
There were no injuries but the robber got away with $4,708, which was recovered.
Simmons was discovered hiding in a dog crate 45 minutes after the robbery. His DNA was found on the handgun, clothing, tennis shoes, ski goggles and backpack.
Simmons did not testify during the trial and was convicted by a jury which deliberated for three hours.
He was sentenced to 10 years in Nevada State Prison for armed robbery which was doubled because of use of a deadly weapon
He also was sentenced to four years to be served concurrently for possession of a firearm with the serial number changed, altered or obliterated.
Simmons is in custody at the Lovelock Correctional Center.
In his appeal, Simmons, through his attorney Jennifer Yturbide, argued that he was deprived of a fair sentencing hearing because Gibbons erroneously considered his lack of remorse and refusal to admit guilt in his sentence.
"We conclude that the error in this case cannot be considered harmless," the justices said. "The record shows that district court referenced Simmons' lack of remorse several times throughout the sentencing hearing. Considering the district court's statements as a whole, it is evident that Simmons' lack of remorse and refusal to admit guilt significantly influenced the district court's sentencing decision."
The Supreme Court made reference to Simmons' lack of a prior criminal record, his good behavior in Douglas County Jail and the presence of a supportive family.
Simmons was jailed for 14 months prior to trial. He went through three court-appointed lawyers in the case - Terri Roeser who retired prior to trial; Tod Young whom Simmons fired after his conviction and Yturbide who was appointed to replace Young.
The order upholding the conviction and remanding the case to district court for a sentencing rehearing was signed by Chief Justice William Maupin and justices Nancy Saitta and Michael Cherry.
