Strickland). Both components of the inquiry must be shown. Strickland,
466 U.S. at 697. We give deference to the district 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. Lacier v. Warden,
121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant claimed counsel was ineffective for providing
unreasonable advice, which led appellant to reject a plea offer from the
State that would have resulted in a shorter sentence of imprisonment.
Appellant alleged specific facts that are not belied by the record and, if
true, would have entitled him to relief A defendant is entitled to the
effective assistance of counsel during plea negotiations, Missouri v. Frye,
566 U.S. , 132 S. Ct. 1399, 1405-06 (2012), and where counsel's
advice regarding whether to accept a plea is objectively unreasonable, a
defendant is entitled to relief where he can show prejudice, Lafler v.
Cooper, 566 U.S. „ 132 S. Ct. 1376, 1384 (2012). Appellant claimed
that the State offered him a plea deal whereby appellant would plead
guilty to one count of first-degree kidnapping consecutive to one count of
robbery with the use of a deadly weapon with an aggregate sentence of life
in prison with the possibility of parole after twelve years. Appellant
further claimed that he only rejected the offer and went to trial because
counsel told him there were no facts to support a first-degree kidnapping
charge and did not inform him that he could face substantially more
prison time if he was convicted at trial. Because appellant was convicted
of first-degree kidnapping and was sentenced to a significantly longer
term of imprisonment than would have been possible had he accepted the
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plea offer, he may be entitled to relief. 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
move to dismiss the indictment or, at least, the attempt murder charges
because of alleged errors during the grand jury proceedings. Appellant
failed to demonstrate deficiency or prejudice. Appellant did not
demonstrate that the form of the challenged questions or the calling of
appellant's parents to testify after a three-week delay resulted in
substantial prejudice, see Lay v. State, 110 Nev. 1189, 1198, 886 P.2d 448,
454 (1994) (holding that a defendant must show "substantial prejudice" to
warrant a dismissal), such that counsel was objectively unreasonable in
not challenging the actions. Moreover, any error in the form of the
questioning was cured when appellant was acquitted of the attempt
murder charges. Cf. Lisle v. State, 114 Nev. 221, 224-25, 954 P.2d 744,
746-47 (1998) (noting there would not be prejudice where the defendant
was later found guilty beyond a reasonable doubt). We therefore conclude
that the district court did not err in denying these claims without an
evidentiary hearing
2Should the district court find after an evidentiary hearing that
appellant has demonstrated that counsel's advice was objectively
unreasonable and that, but for that advice, he would have pleaded guilty
instead of going to trial, the district court shall apply the remedy as set
forth in Wet: "[O]rder the State to reoffer the plea agreement.
Presuming [appellant] accepts the offer, the [district] court can then
exercise its discretion in determining whether to vacate the convictions
and resentence [appellant] pursuant to the plea agreement, to vacate only
some of the convictions and resentence [appellant] accordingly, or to leave
the convictions and sentence from trial undisturbed." 566 U.S. at , 132
S. Ct. at 1391. Depending on the outcome, appellant's remaining claims,
and this court's disposition thereof, could be rendered moot.
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Third, appellant claimed counsel was ineffective for failing to
advise him of his right to a bench trial. Appellant failed to demonstrate
deficiency or prejudice. Appellant did not demonstrate that the failure to
advise him of the availability of a bench trial was objectively
unreasonable. Further, appellant failed to demonstrate a reasonable
probability of a different outcome had the case been decided by a judge.
We therefore conclude that the district court did not err in denying this
claim without an evidentiary hearing.
Fourth, appellant claimed counsel was ineffective for failing to
object to the amended indictment. Appellant failed to demonstrate
deficiency or prejudice. Although the record before this court does not
indicate that the State moved the court to amend the indictment prior to
filing it, the indictment did not add or change any offenses, nor did
appellant identify any substantial rights that were prejudiced. Thus the
State could and likely would have been granted permission to amend it at
any time before the verdict was returned. NRS 173.095(1). Further the
indictment was amended well in advance of trial, and appellant was
acquitted of all but one of the amended counts, with the amendment in the
remaining count—the addition of an officer's name—being mere
surplussage. Accordingly, appellant did not demonstrate a reasonable
probability of a different outcome at trial had counsel objected. We
therefore conclude that the district court did not err in denying this claim
without an evidentiary hearing.
Fifth, appellant claimed counsel was ineffective for failing to
seek clarification from or to dismiss a juror who could not say whether he
could be fair. Appellant failed to demonstrate deficiency or prejudice. The
juror at issue volunteered that he was unsure whether he could be fair if
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children were forced to testify, but the State had already indicated that no
children would be testifying, and none were called at trial. To the extent
appellant claimed that trial counsel was ineffective in posing to the venire
questions regarding child victims, it was not objectively unreasonable
where appellant was charged with four counts of first-degree kidnapping
of children. We therefore conclude that the district court did not err in
denying this claim without an evidentiary hearing.
Sixth, appellant claimed counsel was ineffective for failing to
call a psychiatrist or addiction expert at trial or sentencing, to prepare a
sentencing memorandum, or to investigate allegations made at sentencing
of other uncharged crimes. Appellant failed to demonstrate deficiency or
prejudice. His bare claims failed to state what the desired expert would
have said, how appellant's addiction affected his intent in such a way as to
have had any impact on the outcome at either trial or sentencing, what
rebuttal information could have been procured, what the results of an
investigation would have been, or how any of it would have affected the
outcome at trial or sentencing. We therefore conclude that the district
court did not err in denying these claims without an evidentiary hearing.
Seventh, appellant claimed counsel was ineffective for failing
to challenge jury instruction 17 as shifting the burden of proof to appellant
and misleading the jury to believe that to convict him of second-degree
kidnapping, at least one juror must also believe that he is guilty of first-
degree kidnapping. Appellant failed to demonstrate deficiency or
prejudice. The instruction did not shift the burden of proof. We therefore
conclude that the district court did not err in denying this claim without
an evidentiary hearing.
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Eighth, appellant claimed counsel was ineffective for failing to
challenge jury instruction 12, defining "in the presence" of a person for
purposes of robbery, as a misstatement of law. Appellant failed to
demonstrate deficiency or prejudice. Appellant complained that the
instruction's verbiage, "'if not prevented by intimidation or threat of
violence,' required the use of less force than this court has required, that
is "if not overcome by violence or prevented by fear." Robertson v. Sheriff,
93 Nev. 300, 302, 565 P.2d 647, 648 (1977) (quoting Commonwealth v.
Homer, 127 N.E. 517, 520 (Mass. 1920)). Appellant's attempt to parse
verbiage was without merit because "Mlle degree of force used is
immaterial" in robbery. NRS 200.380(1). We therefore conclude that the
district court did not err in denying this claim without an evidentiary
hearing
Ninth, appellant claimed counsel was ineffective for failing to
request a jury instruction on petit larceny as a lesser-included offense to
the robbery of E. Ducsak. Appellant failed to demonstrate deficiency or
prejudice. Appellant did not demonstrate that counsel was objectively
unreasonable in failing to request a jury instruction for petit larceny, see
NRS 205.240(1)(a)(1) (defining it in relevant part as the intentional taking
and carrying away of personal property of another), where doing so would
have been contrary to the defense theory at trial that there was no
"taking" of personal property. See Doleman v. State, 112 Nev. 843, 848,
921 P.2d 278, 280-81 (1996) (holding that tactical decisions are "'virtually
unchallengeable absent extraordinary circumstances") (quoting Howard v.
State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990), abrogated on other
grounds by Harte v. State, 116 Nev. 1054, 1072 n.6, 13 P.3d 420, 432 n.6
(2000)). Moreover, the jury found appellant guilty beyond a reasonable
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doubt of the greater offense of robbery, which this court affirmed on direct
appeal, see Morales v. State, Docket No. 54216 (Order of Affirmance, July
15, 2010), such that there was no reasonable probability of a different
outcome had counsel requested the instruction. See Rosas v. State, 122
Nev. 1258, 1265, 147 P.3d 1101, 1106 (2006) (stating that an instruction
on a lesser-included offense is not an invitation to the jury to return a
compromise verdict). We therefore conclude that the district court did not
err in denying this claim without an evidentiary hearing.
Tenth, appellant claimed counsel was ineffective for failing to
request a jury instruction of coercion as a lesser-included offense of first-
degree kidnapping of the adults in the home. Even assuming without
deciding that coercion is a lesser-included offense of first-degree
kidnapping, appellant failed to demonstrate deficiency or prejudice.
Counsel elected to argue that appellant was guilty of no more than false
imprisonment, which would have carried the same penalty as coercion.
Compare NRS 200.460(3), with NRS 207.190(2)(a); see Doleman, 112 Nev.
at 848, 921 P.2d at 280-81. Moreover, the jury found appellant guilty
beyond a reasonable doubt of either first- or second-degree kidnapping of
the adult victims such that there was no reasonable probability of a
different outcome had counsel argued for coercion. See Rosas, 122 Nev. at
1265, 147 P.3d at 1106. We therefore conclude that the district court did
not err in denying this claim without an evidentiary hearing.
Eleventh, appellant claimed counsel was ineffective for failing
to conduct a post-trial interview with jurors, because doing so would have
exposed juror bias and/or confusion over their instructions, thereby
providing a foundation to declare a mistrial or to move for a new trial.
Appellant failed to demonstrate deficiency or prejudice. Appellant's claim
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that the jury was biased against him because of questions asked during
voir dire about "scand[a]lous allegations of child kidnapping' was patently
without merit since he was charged with four counts of kidnapping
children. Moreover, any prejudice that may have occurred because of any
difficulty in understanding instructions was cured when appellant was
acquitted of various counts of kidnapping and attempt murder. 3 We
therefore conclude that the district court did not err in denying this claim
without an evidentiary hearing.
Twelfth, appellant claimed that the cumulative errors of
counsel warranted reversal of his convictions. Because appellant failed to
demonstrate deficiency on all but the guilty-plea-advice claim, there were
no errors to cumulate. Appellant was thus entitled to no more relief than
was already afforded on that claim. We therefore conclude that the
district court did not err in denying this claim.
Appellant next claimed that he received ineffective assistance
from appellate counsel. To prove ineffective assistance of appellate
counsel, a petitioner must demonstrate that counsel's performance was
deficient in 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 v. State, 112 Nev. 980, 998, 923
P.2d 1102, 1114 (1996). 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
3 Theremaining error—appellant's dual conviction for robbery with
use of a deadly weapon and false imprisonment with use of a deadly
weapon—is cured as a result of our holding infra.
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951, 953 (1989). Both components of the inquiry must be shown.
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 failing
to challenge on appeal his conviction for the false imprisonment of C.
Ramos, where the alleged detention was incidental to the robbery of the
victim. We conclude that the district court erred in denying this claim
without an evidentiary hearing, because appellant alleged specific facts
that are not belied by the record and, if true, would entitle him to relief.
A defendant may be convicted of both robbery and false
imprisonment arising out of the same course of events only where the
restraint necessary for false imprisonment "stand Is] alone with
independent significance from the act of robbery itself, create[s] a risk of
danger to the victim substantially exceeding that necessarily present in
the crime of robbery, or involve[s] . . . restraint substantially in excess of
that necessary to its completion." Mendoza v. State, 122 Nev. 267, 275,
130 P.3d 176, 181 (2006) (analyzing the issue in a kidnapping-robbery
context); see Garcia v. State, 121 Nev. 327,334-35, 113 P.3d 836, 840-41
(2005) (applying kidnapping-robbery alternate-offense analysis in a false-
imprisonment-robbery context), modified on other grounds by Mendoza,
122 Nev. at 274, 130 P.3d at 180. The entirety of the detention involved
keeping C. Ramos in the pharmacy to deliver drugs to appellant and thus
was clearly incidental to the robbery. Further, the detention held no
independent significance from the robbery, it did not create a risk of
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danger that substantially exceeded that of the robbery, and it was not
substantially in excess of that necessary to complete the robbery.
Accordingly, had counsel raised the issue on direct appeal, there is a
reasonable probability that this court would have reversed the false-
imprisonment conviction.
Further, it appears from the record that counsel may have
been objectively unreasonable in failing to raise this claim on direct
appeal. The cases relied upon herein were decided more than two years
before appellant committed his crimes and were thus available to counsel.
And there was no indication that counsel was attempting to winnow out
what he perceived to be weaker arguments where the opening brief on
direct appeal was approximately one-third of the permitted length, see
NRAP 32(a)(7)(A)(i), and raised only two issues. Accordingly, appellant
pleaded specific facts that were not belied by the record and, if true,
entitled him to relief. We therefore reverse the denial of this claim and
remand for an evidentiary hearing as to whether counsel was deficient. 4
Second, appellant claimed that appellate counsel was
ineffective for failing to challenge on appeal his conviction for the first-
degree kidnapping of E. Ducsak for the purpose of robbing him where any
alleged movement was incidental to the robbery. Appellant failed to
demonstrate deficiency or prejudice. There was sufficient evidence for a
jury to conclude that the victim was moved for the purpose of robbing him
4 For
the same reasons, we conclude that the district court erred in
denying without an evidentiary hearing appellant's claim that trial
counsel was ineffective for not including this count in the motion for
judgment of acquittal, and we remand that claim for an evidentiary
hearing.
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of his vehicle. And because appellant was not convicted of attempted
robbery or robbery of the vehicle, there was no improper dual conviction.
We therefore conclude that the district court did not err in denying this
claim without an evidentiary hearing. 5
Third, appellant claimed that appellate counsel was ineffective
for failing to challenge possible collusion between the State and witnesses.
Appellant failed to demonstrate deficiency or prejudice. Trial counsel
raised the concern below, and the State represented that the conversation
at issue was merely a discussion of logistics and general trial
admonishments. Accordingly, there was no evidence of collusion, and
appellant could not demonstrate a reasonable probability of success on
appeal had counsel raised the claim. We therefore conclude that the
district court did not err in denying this claim without an evidentiary
hearing.
Fourth, appellant claimed that counsel was ineffective for
failing to prepare an effective appeal because he raised only two grounds
and his argument contained fewer lines than the State's response.
Appellant failed to demonstrate deficiency or prejudice beyond what has
already been discussed above. Counsel's efficacy is not measured in the
number of arguments nor in the number of lines any argument comprises.
We therefore conclude that the district court did not err in denying this
bare claim without an evidentiary hearing.
Fifth, appellant claimed that the cumulative errors of counsel
warranted reversal of his convictions. Because appellant failed to
• 'For the same reasons, appellant also failed to demonstrate that
trial counsel was deficient in failing to raise the argument in the motion
for judgment of acquittal or that appellant was prejudiced by the omission.
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demonstrate deficiency on all but the false-imprisonment claim, there
were no errors to cumulate. Appellant was thus entitled to no more relief
than has already been afforded on that claim. We therefore conclude that
the district court did not err in denying this claim.
Finally, to the extent appellant claimed that he was entitled to
a new trial or a new sentencing hearing due to the improper joinder of
legally sufficient and legally insufficient offenses, these claims were
appropriate for direct appeal and were thus procedurally barred absent a
demonstration of good cause and prejudice. See NRS 34.810(1)(b)(2).
Appellant did not attempt to demonstrate good cause to excuse the
procedural bar. We therefore conclude that the district court did not err in
denying this claim without an evidentiary hearing.
For the reasons discussed above, 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. 6
Pieku J.
Pickering
Saitta
6 Should appellant wish to renew his request for the appointment of
post-conviction counsel, the district court may consider appointing new
counsel to assist appellant at the evidentiary hearing. See NRS 34.750.
We have considered all proper person documents filed or received in
this matter. We conclude that appellant is only entitled to the relief
described herein.
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Steven J. Morales
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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