Williams (Nino) v. State ( 2013 )

 Strickland v. Washington, 466 U.S. 668, 697 (1984). We give deference to
the court's factual findings if supported by substantial evidence and not
clearly erroneous but review 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 claimed that counsel was ineffective for
misadvising appellant that he was eligible for probation, resulting in his
rejecting an earlier, more favorable plea offer from the State. The district
court denied this claim without an evidentiary hearing because it was
"bare," counsel "is a highly experienced attorney," and appellant's offense
was non-probational. Appellant's allegations were not bare and, if true,
would have entitled him to relief such that he was entitled to an
evidentiary hearing. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d
222, 225 (1984). If, as appellant alleged, counsel erroneously advised him
that he was eligible for, and that counsel was actively working to secure,
probation, counsel's performance was objectively unreasonable because, as
the district court found, the offense was non-probational. Appellant would
thus have demonstrated deficiency. Further, if appellant relied on
counsel's incorrect advice and rejected a more favorable guilty plea offer
than he would otherwise have accepted, appellant would have
demonstrated prejudice. Missouri v. Frye, 566 U.S. , 132 S. Ct.
1399, 1409 (2012). While counsel's level of experience may bear on his
credibility at an evidentiary hearing, it was immaterial as to whether the
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hearing was merited. We therefore conclude that the district court erred
in denying this claim without an evidentiary hearing. 2
Second, appellant claimed counsel was ineffective for failing to
file a pretrial motion to suppress the burglary tools because they were
neither found on appellant's person nor examined for his fingerprints.
Appellant failed to demonstrate deficiency or prejudice. His bare claim
failed to allege facts that would demonstrate a basis for suppressing the
tools. See, e.g., Arterburn v. State, 111 Nev. 1121, 1127, 901 P.2d 668, 671
(1995) (reversing conviction where evidence obtained in violation of the
Fourth Amendment should have been suppressed); Passama v. State, 103
Nev. 212, 216, 735 P.2d 321, 324 (1987) (reversing conviction where
evidence obtained in violation of the Fifth Amendment should have been
suppressed); Diomampo v. State, 124 Nev. 414, 430-31, 185 P.3d 1031,
1041-42 (2008) (reversing conviction where evidence should not have been
admitted because it was more prejudicial than probative). We therefore
conclude that the district court did not err in denying this claim.
Appellant also raised several claims of ineffective assistance of
appellate counsel. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
2To complete his showing of prejudice at the evidentiary hearing,
appellant must also prove that "there is a reasonable probability neither
the prosecution nor the trial court would have prevented the offer from
being accepted or implemented." Id. at , 132 S. Ct. at 1410; accord
Lafler v. Cooper, 566 U.S. „ 132 S. Ct. 1376, 1384-85 (2012); see
also State v. Crockett, 110 Nev. 838, 548, 877 P.2d 1077, 1080-81 (1994);
Sparks v. State, 104 Nev. 316, 322-23, 759 P.2d 180, 184-85 (1988).
Because of the potential difficulty of this issue, and because the State did
not oppose appellant's request, the district court may want to consider
appointing counsel. NRS 34.750.
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that it fell below an objective standard of reasonableness, and resulting
prejudice such that the omitted issue would have a reasonable probability
of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1114.
Appellate counsel is not required to raise every non-frivolous issue on
appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate
counsel will be most effective when every conceivable issue is not raised on
appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). Both
components of the inquiry must be shown, Strickland, 466 U.S. at 697.
First, appellant claimed that counsel was ineffective for failing
to raise his ineffective-assistance-of-trial-counsel claims. Appellant failed
to demonstrate deficiency or prejudice. Such claims are generally not
appropriate for direct appeal, and appellant did not demonstrate a
reasonable probability of success had counsel raised the claims. See
Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d 519, 534 (2001). We
therefore conclude that the district court did not err in denying these
claims.
Second, appellant claimed that counsel was ineffective for
failing to challenge the validity of his guilty plea on appeal. Appellant
failed to demonstrate deficiency or prejudice. Such claims are generally
not appropriate for direct appeal where, as here, they were not first raised
in the district court and the claim or error did not clearly appear in the
record. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 367-68
(1986), as limited by Smith v. State, 110 Nev. 1009, 1010-11 n.1, 879 P.2d
60, 61 n.1 (1994). We therefore conclude that the district court did not err
in denying these claims.
Third, appellant claimed that counsel was ineffective for
failing to argue that the State withheld exculpatory evidence in violation
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of Brady v. Maryland, 373 U.S. 83 (1963). Appellant failed to demonstrate
deficiency or prejudice because his claims, even if true, would not have
entitled him to relief. Appellant claimed that upon his arrest, he was told
that multiple voices could be heard on an audio tape from the burglary
and that the State violated Brady by not turning the tape over to the
defense until the morning trial was to have started. That others may have
also committed the burglary was not favorable to appellant; by his own
admission the evidence was turned over and was thus not withheld; and
appellant knew of the evidence yet still pleaded guilty and thus could not
demonstrate that but for the evidence having been withheld, he would not
have pleaded guilty but would have insisted on going to trial. See
generally State v. Huebler, 128 Nev. , 275 P.3d 91 (2012) (applying in
the context of a guilty plea the three elements of a successful Brady claim:
the evidence is favorable, it was withheld by the State, and it was
material). We therefore conclude that the district court did not err in
denying this claim.
Fourth, appellant claimed that counsel was ineffective for
failing to argue that he was denied his right to represent himself.
Appellant failed to demonstrate deficiency or prejudice. Appellant
requested that his trial counsel be replaced, but he never requested to
represent himself. We therefore conclude that the district court did not
err in denying this claim.
Fifth, appellant claimed that counsel was ineffective for not
arguing that appellant's due process rights were violated because he was
not afforded an opportunity to contest the State's evidence against him.
Appellant failed to demonstrate deficiency or prejudice. Appellant had the
right to challenge the State's evidence via jury trial, but appellant waived
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that right when he pleaded guilty. We therefore conclude that the district
court did not err in denying this claim.
Appellant next claimed that his guilty plea was invalid
because he did not admit his guilt, he did not affirmatively state that he
was not coerced into entering his plea, he did not understand the
difference between category B and C felonies, the district court did not
explain the elements of the crimes charged, the court implicitly coerced
him into pleading guilty when it ordered the jury brought in after
appellant asked to speak With his counsel, he had taken medication that
caused him to be confused, and he only pleaded guilty because he was
confused, was being rushed into the decision, and was afraid of trial.
Appellant failed to demonstrate that his plea was invalid. See Bryant, 102
Nev. at 272, 721 P.2d at 368; State v. Freese, 116 Nev. 1097, 1105-06, 13
P.3d 442, 448-49 (2000). Most of appellant's claims were belied by the
record. He admitted his guilt, told the district court he was not coerced,
and stated that he understood that the category of felony was irrelevant to
his adjudication as a habitual criminal. Further, the district court stated
the elements of the offenses to which appellant pleaded guilty and, when
appellant wanted to discuss the plea with his counsel, told him that they
would not keep the jury waiting any longer but that appellant could revisit
his decision at the break. Finally, when appellant was confused, he asked
questions until he was satisfied with the response. The above
substantially supports the district court's findings that appellant was not
coerced, understood the charges against him and the consequences of his
guilty plea, and accordingly entered his plea freely and voluntarily.
Because the totality of the circumstances indicated that appellant
understood the consequences of his plea, we conclude that the district
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court did not abuse its discretion in denying appellant's claim. See
Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994).
Finally, appellant claimed that the State violated Brady, that
he was denied his right to represent himself, and that his due process
rights were violated because he was not afforded an opportunity to contest
the State's evidence against him. These claims were outside the scope of
claims allowed where a defendant was convicted pursuant to a guilty plea.
NRS 34.810(1)(a). We therefore conclude that the district court did not err
in denying these claims.
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
Dougla
Saitta
cc: Hon. Douglas W. Herndon, District Judge
Nino Lee Williams
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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