Odiaga (Victor) v. State ( 2014 )

 First, appellant claimed that his counsel was ineffective for
failing to properly question witnesses, raise objections, or object to
duplicative charges at the preliminary hearing. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Counsel challenged the victims' version of events at the
preliminary hearing and argued that there was insufficient evidence
presented at that hearing. Appellant failed to demonstrate a reasonable
probability of a different outcome had counsel raised further questions or
objections during the preliminary hearing as the State presented sufficient
evidence to support a probable cause finding for the charges against
appellant. See Sheriff Washoe Cnty. v. Hodes, 96 Nev. 184, 186, 606 P.2d
178, 180 (1980). Therefore, the district court did not err in denying this
claim.
Second, appellant claimed that his trial counsel was
ineffective for failing to investigate the case or discover receipts showing
that the victims' bills had been paid. Appellant failed to demonstrate that
his counsel's performance was deficient or that he was prejudiced.
Appellant did not identify any evidence that objectively reasonable counsel
would have uncovered through diligent investigation that was not
presented at the trial. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533,
538 (2004). In addition, the receipts were presented at trial by the State,
as appellant gave the victims receipts showing that payment had been
made or that the checks were deposited, but the victims later discovered
that appellant had used fraudulent checks to make the payments or
deposits. Appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel performed further investigation into
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these matters. Therefore, the district court did not err in denying this
claim.
Third, appellant claimed that his trial counsel was ineffective
for failing to file pretrial motions. Appellant failed to demonstrate either
deficiency or prejudice for this claim. Counsel filed a pretrial petition for a
writ of habeas corpus and appellant did not identify any additional
motions that objectively reasonable counsel would have filed. See
Hargrove v. State, 100 Nev. 498, 502-03 686 P.2d 222, 225 (1984).
Appellant failed to demonstrate a reasonable probability of a different
outcome at trial had counsel filed additional pretrial motions. Therefore,
the district court did not err in denying this claim.
Fourth, appellant claimed that his trial counsel was ineffective
for failing to question witnesses regarding their misidentifications during
their photo line-up. Appellant failed to demonstrate that his trial
counsel's performance was deficient or that he was prejudiced. Counsel
questioned many of the victims regarding their photo line-up. For the
victims that misidentified appellant in the photo line-up, the testimony
revealed that the photo of appellant and the misidentified photo appeared
substantially similar. In addition, the victims identified appellant in court
as the person who had defrauded them and one victim had taken a
photograph of appellant during the financial transactions. Under these
circumstances, appellant failed to demonstrate objectively reasonable
counsel would have further questioned the victims about the photo line-
up. As there was overwhelming evidence of appellant's guilt presented at
trial, appellant failed to demonstrate a reasonable probability of a
different outcome at trial had counsel posed further questions regarding
this subject. Therefore, the district court did not err in denying this claim.
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Fifth, appellant claimed that his trial counsel was ineffective
for failing to argue that there was insufficient evidence to prove that he
knowingly took the victims' money or that he had the intent to take their
money. Appellant failed to demonstrate either deficiency or prejudice for
this claim. Trial counsel attempted to show that the State had failed to
prove all of the charges against appellant beyond a reasonable doubt. In
addition, there was overwhelming evidence presented at trial that
appellant had the intent to defraud the victims and improperly take their
money. Accordingly, appellant failed to demonstrate a reasonable
probability of a different outcome at trial had counsel further argued there
was insufficient evidence of guilt. Therefore, the district court did not err
in denying this claim.
Sixth, appellant claimed that his trial counsel was ineffective
for failing to argue that the State withheld exculpatory evidence in the
form of receipts showing that the bills had been paid and a photograph
from a bank, which appellant asserted depicted a different person
conducting the fraudulent transaction. Appellant failed to demonstrate
either deficiency or prejudice for this claim as this evidence was not
withheld, was not exculpatory, and was presented by the State during
trial as evidence of appellant's guilt. See State v. Bennett, 119 Nev. 589,
599, 81 P.3d 1, 8 (2003). Therefore, the district court did not err in
denying this claim.
Seventh, appellant claimed that his• trial counsel was
ineffective for advising him not to testify. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
The trial court informed appellant that he had the right to testify and that
the decision whether to testify was his alone. Appellant acknowledged
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that he had discussed testifying with counsel and that he understood that
he had to decide whether to testify. In addition, appellant had an
extensive and lengthy criminal history, with many of his previous
convictions involving similar fraudulent activities to those he was charged
with in this matter, and he would have been subject to questioning
regarding those convictions See NRS 50.095. Given appellant's
statements to the district court and his criminal history, he failed to
demonstrate that counsel's advice was objectively unreasonable or that
there was a reasonable probability of a different outcome had counsel
advised appellant to testify. Therefore, the district court did not err in
denying this claim.
Eighth, appellant claimed that his trial counsel was ineffective
for failing to object when the State changed its theory of the case, as the
State amended a number of the charges. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
When the State informed the court of the amended charges, defense
counsel informed the court that there were no objections to the
amendments. Appellant failed to demonstrate that objectively reasonable
counsel would have objected or that there was a reasonable probability of
a different outcome had counsel objected to the amended charges. See
NRS 173.095(1). Therefore, the district court did not err in denying this
claim.
Ninth, appellant claimed that his trial counsel was ineffective
for failing to argue that appellant was incompetent. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Appellant failed to demonstrate that he did not have the
ability to consult with his attorney with a reasonable degree of rational
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understanding and that he did not have a rational and factual
understanding of the proceedings against him. See Melchor Gloria v.
-
State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983) (citing Dusky v.
United States, 362 U.S. 402 (1960)). Appellant failed to demonstrate a
reasonable probability of a different outcome had counsel argued he was
incompetent because appellant provided no factual support for this claim.
See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Therefore, the district
court did not err in denying this claim.
Tenth, appellant claimed that his trial counsel was ineffective
because counsel advised appellant to waive his speedy trial rights, but did
not ensure that appellant understood those rights prior to the waiver.
Appellant failed to demonstrate either deficiency or prejudice• for this
claim. Appellant acknowledged that counsel offered advice regarding his
speedy trial rights and appellant failed to demonstrate that objectively
reasonable counsel would have offered additional or extensive advice
regarding the waiver of that right. In addition, as the start of trial was
not unreasonably delayed and appellant failed to demonstrate any
prejudice related to the waiver of a speedy trial, appellant failed to
demonstrate he was entitled to relief for this claim. See Furbay v. State,
116 Nev. 481, 484-85, 998 P.2d 553, 555 (2000). Therefore, the district
court did not err in denying this claim.
Eleventh, appellant claimed his initial counsel from the Clark
County Public Defender's Office had a conflict of interest and improperly
represented him at the preliminary hearing. Months after the
preliminary hearing, counsel filed a motion to withdraw as she had
learned information from appellant that possibly implicated a fellow client
of the Clark County Public Defender's Office. The district court then
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appointed substitute counsel and that counsel represented appellant at
trial. Under these circumstances, appellant failed to demonstrate an
actual conflict of interest or that his counsel had divided loyalties. See
Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376 (1992). Therefore,
the district court did not err in denying this claim.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
J.
Hardesty
CpcNA1 ) 43 J.
Douglas
Cherry
cc: Hon. Michelle Leavitt, District Judge
Victor Odiaga
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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