regarding the decision to enter a guilty plea, a petitioner must
demonstrate a reasonable probability that, but for counsel's errors,
petitioner would not have pleaded guilty and would have insisted on going
to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112
Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the
inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner
must demonstrate the underlying facts by a preponderance of the
evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
First, appellant claimed that his trial counsel was ineffective
for promising him probation. Appellant claimed that he does not speak
English well and his counsel took advantage of the language barrier in
advising appellant to accept the plea negotiations. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. The written guilty plea agreement, which appellant
acknowledged was read to him in Spanish, contained no promise of
probation and appellant affirmatively acknowledged that sentencing was
left to the discretion of the district court and no promises not contained in
the plea agreement had been made. The written guilty plea agreement
further informed him of the potential consequences of the plea. Appellant
was personally canvassed by the district court and informed sentencing
decisions were left to the district court's discretion. Therefore, we
conclude that the district court did not err in denying this claim.
Second, appellant claimed that his trial counsel failed to
inform him about his right to a direct appeal. Appellant's claim is not
supported by the record. Appellant expressly waived his right to appeal
the conviction in the guilty plea agreement, which appellant acknowledged
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was read to him in Spanish. Therefore, the district court did not err in
denying this claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
cc: Hon. Douglas W. Herndon, District Judge
Luis Arnoldo Lopez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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