Donaldson (Mark) v. State ( 2014 )

 the court's application of the law to those facts de novo. Lader v. Warden,
121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant argues that counsel was ineffective for
advising him to enter a guilty plea to the counts of child abuse and neglect
with substantial mental harm, because appellant had produced evidence
that the children did not suffer substantial mental harm. Appellant has
failed to demonstrate deficiency or prejudice. Even if the records that
appellant provided in the proceedings below did demonstrate a lack of
substantial mental harm on the part of the victims, appellant did not
demonstrate that counsel knew or should have known of the information
at the time of the entry of the guilty plea. See Strickland, 466 U.S. at 689
(explaining that counsel's performance must be evaluated from counsel's
perspective at the time and without "the distorting effects of hindsight").
Accordingly, appellant did not demonstrate that counsel was objectively
unreasonable. Moreover, appellant received a substantial benefit from the
plea agreement in that he would not be subject to the deadly weapon
sentence enhancement, which would have been a term equal and
consecutive to that imposed for the murder. See 1995 Nev. Stat., ch. 455, §
1, at 1431. Accordingly, appellant did not demonstrate that, but for the
alleged error of counsel, he would not have pleaded guilty and would have
insisted on going to trial. We therefore conclude that the district court did
not err in denying this claim.
Second, appellant argues that counsel was ineffective for
advising him that the sentences for counts two and three would be
imposed concurrent to that for count one. Appellant has failed to
demonstrate prejudice. Even were appellant's claim true, he failed to
demonstrate that, but for the alleged incorrect advice, he would not have
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pleaded guilty but would have insisted on going to trial. Not only did the
guilty plea agreement, which appellant orally acknowledged that he read
and understood, clearly state that the sentences for counts two and three
would run consecutive to that for count one, but in its canvass of
appellant, the district court repeatedly and explicitly confirmed with
appellant that he understood the stipulated sentence and that no one had
promised him concurrent terms. We therefore conclude that the district
court did not err in denying this claim.
Third, appellant argues that counsel was ineffective for failing
to file a direct appeal upon appellant's timely request that he do so. Based
upon our review of the record on appeal, we conclude that the district
court erred in denying this claim. Trial counsel has a constitutional duty
to consult with a defendant about a direct appeal when the defendant
inquires about it and a duty to file a direct appeal when a client requests
one or when the client expresses dissatisfaction with his conviction and
sentence. Toston v. State, 127 Nev. „ 267 P.3d 795, 799-800 (2011).
Appellant testified at the evidentiary hearing that at the conclusion of the
sentencing hearing, he had asked counsel if he could file an appeal
concerning his sentence and that counsel had responded that he would do
it. Trial counsel testified that he did not have a specific recollection of the
hearing but that he thought appellant had asked about appealing. He did
not remember it being a specific request to appeal but offered conflicting
hypotheses as to what his reaction might have been had appellant done so:
He would have asked, `What appeal?" because he believed they were lucky
that the judge followed the guilty plea agreement, and he would have
"followed up" but would "[p]ossibly not file" because he needed something
besides ineffective-assistance claims on which to base the appeal.
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Appellant's testimony established by a preponderance of the evidence that
he had requested an appeal, and counsel's testimony failed to rebut that.
Because prejudice is presumed, see id. at 267 P.3d at 799, appellant
demonstrated that he received ineffective assistance of counsel. Thus, we
reverse the decision of the district court to deny this claim, and we remand
this matter to the district court to provide appellant with the remedy set
forth in NRAP 4(c). 1
Appellant also argues that his guilty plea was invalid. A
guilty plea is presumptively valid, and a petitioner carries the burden of
establishing that the plea was not entered knowingly and intelligently.
Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also
Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). Further,
this court will not reverse a district court's determination concerning the
validity of a plea absent a clear abuse of discretion. Hubbard, 110 Nev. at
675, 877 P.2d at 521. In determining the validity of a guilty plea, this
court looks to the totality of the circumstances. State v. Freese, 116 Nev.
1097, 1105, 13 P.3d 442,448 (2000); Bryant, 102 Nev. at 271, 721 P.2d at
367.
1 Thedistrict court shall enter specific findings of fact and
conclusions of law that appellant was deprived of a direct appeal and is
entitled to a direct appeal with the assistance of counsel. See NRAP
4(c)(1)(B)(i). If appellant is indigent, the district court shall appoint
appellate counsel. See NRAP 4(c)(1)(B)(ii). The district court shall also
direct the clerk of the district court to prepare and file within 5 days of
entry of the district court's order a notice of appeal from the judgment of
conviction and sentence. See NRAP 4(c)(1)(B)(iii).
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The totality of the circumstances demonstrates that
appellant's guilty plea was valid. First, appellant argues that he believed
all sentences would run concurrently. As discussed above, any such belief
was unfounded. Second, appellant argues that his guilty plea was
manifestly unjust because he would not have pleaded guilty had he known
the State did not have evidence that the children suffered substantial
mental harm. At the time of his guilty plea, appellant acknowledged that
he was pleading guilty, in part, because his actions had inflicted
substantial mental harm on the children and that pleading guilty was in
his best interest. Further, as discussed above, he received a substantial
benefit by accepting the State's plea offer, thereby avoiding the imposition
of an equal and consecutive term of imprisonment for the deadly weapon
enhancement for the murder count. We therefore conclude that the
district court did not err in denying this claim.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
PiNng
(00.,..a6r....„
J.
Parraguirre
Saitta
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cc: Hon. Jessie Elizabeth Walsh, District Judge
The Law Office of Daniel M. Bunin
Attorney GenerallCarson City
Clark County District Attorney
Eighth District Court Clerk
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