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 argues that the district court erred in denying
his claim that trial counsel was ineffective for failing to properly advise
appellant about the risk of being sentenced as a habitual offender.
Appellant asserts that counsel misrepresented that he would likely be
sentenced under the large habitual criminal statute if he was convicted at
trial, despite the non-violent nature of his prior felonies. Appellant failed
to demonstrate that counsel's performance was deficient or that he was
prejudiced. Appellant negotiated a plea agreement in which he stipulated
to small habitual criminal treatment in three separate cases. Counsel
testified at the evidentiary hearing that she had discussed the sentencing
options with appellant and informed him that large habitual criminal
treatment was not mandatory but that appellant was eligible for it if he
went to trial and lost in any of the three pending cases. She further
testified that she had discussed with him the likelihood of his receiving a
large habitual criminal sentence and informed him that it was unlikely
that the district court judge would impose such a sentence for non-violent
offenses but that she did not know about the risk with the other district
court judges in his other cases.
In light of the record and counsel's testimony, we conclude
that appellant failed to demonstrate that counsel did not properly advise
him regarding his potential sentence. Furthermore, appellant failed to
demonstrate a reasonable probability that, but for counsel's alleged errors,
he would not have pleaded guilty. Appellant received a substantial benefit
in pleading guilty, as the State combined the two charges of possession of
a stolen vehicle into one charge and stipulated to small habitual criminal
SUPREME COURT
OF
NEVADA
(0) 1947A
.7-
..,611161111S19 111P.PmismiNEWi e
treatment rather than large habitual criminal treatment. The fact that
appellant was sentenced under the large habitual criminal statute was
due to his failure to appear for sentencing. Thus, the district court did not
err in denying this claim.
Second, appellant argues that the district court erred in
denying his claim that trial counsel was ineffective for failing to properly
investigate defenses. Specifically, appellant claims that he provided
counsel with a notarized affidavit by Dana Spalding showing that he had
permission to use the motor home, which would have defeated the
knowledge element of the offense of possession of a stolen vehicle.
Appellant failed to demonstrate that counsel's performance was deficient
or that he was prejudiced. Counsel testified that she and her investigator
attempted to contact Dana Spalding but were unable to locate her before
appellant entered his guilty plea. Counsel further testified that she was
not provided with the affidavit until after appellant pleaded guilty. Thus,
appellant failed to demonstrate that counsel did not investigate a
potential witness. Furthermore, appellant failed to demonstrate a
reasonable probability that he would not have pleaded guilty but for
counsel's alleged errors. Appellant did not explain why he entered a guilty
plea if he had exculpatory evidence. In addition, because the notarized
document related only to the use of the motor home and the charge related
to two stolen vehicles, he could not demonstrate prejudice as he still would
have been charged with possession of a stolen vehicle. Accordingly, the
district court did not err in denying this claim.
Next, appellant argues that the district court erred by denying
his claim that appellate counsel was ineffective for failing to "identify
specific appellate issues" and provide the transcript of the plea canvass to
SUPREME COURT
OF
NEVADA
3
(0) 1947A
.11MENISMENINEINCE-MT4 45.95811111111111111104' Mg& W,1010,1i
-
this court on direct appeal. Appellant failed to demonstrate prejudice, as
he does not identify the issues that appellate counsel should have raised
and did not explain how any issues would have been successful had
appellate counsel provided transcripts on appeal. See Kirksey, 112 Nev. at
998, 923 P.2d at 1114; see also Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court.").
Appellant also argues that his sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment, and he did
not receive notice of the State's intent to seek large habitual criminal
treatment. These claims were not raised below in his post-conviction
petition and need not be considered on appeal. See Davis v. State, 107
Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by
Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004).
Finally, to the extent that appellant argues that he is entitled
to relief because of cumulative error, he has failed to demonstrate any
error. Therefore, the district court did not err in denying this claim.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
Parraguirre
SUPREME COURT
OF
NEVADA
4
(0) 1947A
MallEgEWEEZI
cc: Hon. Linda Marie Bell, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A
7W,11111,,.:1441%;:W-7,715,,W41 140A1T4MatTeln MEM