First, appellant argues that counsel was ineffective for failing
to fully explain to appellant the guilty plea agreement as well as a new
stipulation entered into at the sentencing hearing that resulted in
appellant being sentenced to a much larger sentence than that set forth in
the guilty plea agreement. Appellant failed to demonstrate deficiency or
prejudice. Appellant made only a bare claim that counsel did not explain
the guilty plea agreement; appellant did not state what it is that he did
not understand. Further, appellant does not cite to anything to support
his claim that the parties entered into a new stipulation. We therefore
conclude that the district court did not err in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to prepare for or investigate the case prior to recommending
acceptance of the guilty plea offer. Appellant failed to demonstrate
deficiency or prejudice as his claim was bare and he failed to argue below
what a more thorough investigation would have revealed. See Molina v.
State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We therefore conclude
that the district court did not err in denying this claim.'
Third, appellant argues that counsel was ineffective for failing
to understand the habitual-felon statute, NRS 207.012, and for not
1-On appeal, appellant claims that a more thorough investigation
would have revealed either that the owner of the "car" would have said
that he loaned the vehicle to appellant or that appellant simply allowed a
friend to park the stolen motorcycle at appellant's residence. As neither of
these allegations were properly before the district court below, see
Barnhart v. State, 122 Nev. 301, 303-04, 130 P.3d 650, 651-52 (2006); NRS
34.750(3), (5), we decline to consider them on appeal in the first instance.
Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on
other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33
(2004).
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objecting to appellant's adjudication as a habitual felon. Appellant failed
to demonstrate deficiency or prejudice as his claim is repelled by the
record. Appellant was adjudicated a habitual criminal pursuant to NRS
207.010(1)(b)(2), not a habitual felon pursuant to NRS 207.012. Further,
contrary to appellant's claim, it was not his post-guilty-plea behavior—
failing to appear at the sentencing hearing and acquiring new felony
charges—that triggered the application of the habitual-criminal statute,
but rather his five prior felony convictions, the validity of which he has not
challenged. 2 Appellant's behavior subsequent to his guilty plea merely
allowed the State the leeway to argue for a stronger sentence than it had
stipulated to in the guilty plea agreement. Finally, appellant identifies no
grounds on which counsel could have objected. We therefore conclude that
the district court did not err in denying this claim.
Fourth, appellant argues that counsel was ineffective for
failing to advise him of his right to a direct appeal. Appellant failed to
demonstrate deficiency or prejudice. Appellant's bare, naked claim below
did not allege that he requested a direct appeal be filed nor identify any
circumstances under which counsel would have been obligated to advise
him of the right to appeal. See Thomas v. State, 115 Nev. 148, 151, 979
P.2d 222, 224 (1999). Moreover, appellant was advised via his written
guilty plea agreement, which he signed, of his limited appeal rights. We
2Appellant does note in a footnote in the "statement of the case"
section of his opening brief that he "alleges" that the copies of the
judgments of conviction were not certified. However, he neither
challenges the validity of the convictions themselves nor raises this as a
claim for relief.
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therefore conclude that the district court did not err in denying this
claim. 3
Appellant next argues that the district court erred in denying
his claim that his guilty plea was invalid. Specifically, he argues that the
district court's breach of the guilty plea agreement entitled him to
withdraw his plea. Appellant's claim lacks merit as it is repelled by the
record. Appellant does not dispute that he was advised in the guilty plea
agreement that he could be sentenced under the large-habitual-criminal
statute and that the sentence imposed would be at the sole discretion of
the district court. Further, appellant failed to appear at his initial
sentencing hearing in violation of the guilty plea agreement, thereby
allowing the State to argue for a greater sentence than what was
stipulated to in the agreement. We therefore conclude that the district
court did not err in denying this claim.
Appellant next argues that the district court erred in denying
his claim that the trial court had erred in not recording a bench conference
during appellant's sentencing hearing. Appellant's claim was bare and
thus did not entitle him to relief. We therefore conclude that the district
court did not err in denying this claim. 4
3 Appellantargues for the first time on appeal that his claim
regarding adjudication as a habitual criminal had a reasonable likelihood
of success on appeal such that counsel had an obligation to inform
appellant of his appeal rights. As this claim was not raised below, we
need not consider it on appeal in the first instance. Davis, 107 Nev. at
606, 817 P.2d at 1173. Moreover, as discussed above, such a claim would
not have been successful on direct appeal.
4Appellant argues for the first time on appeal that counsel was
ineffective for not taking action to preserve the contents of the bench
continued on next page...
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MENCEIDESSBNINIESE1 INEIMINGIEM
Finally, appellant argues that he is entitled to relief because of
the cumulative effect of the ineffective assistance of counsel. Because
appellant has failed to demonstrate that counsel committed any error, he
has failed to demonstrate any cumulative error. Further, because all of
appellant's claims were either belied by the record or were bare, naked
claims, he failed to demonstrate that he was entitled to an evidentiary
hearing. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
Saitta
cc: Hon. Michael Villani, District Judge
Jonathan E. MacArthur
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
...continued
conference. As this claim was not raised below, we decline to consider it
on appeal in the first instance. Davis, 107 Nev. at 606, 817 P.2d at 1173.
5