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). 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. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005). An evidentiary hearing is required
when a petitioner sets forth claims supported by specific facts, not belied
by the record and which if true, would entitle him to relief. See Hargrove
v. State, 100 Nev. 498, 686 P.2d 222 (1984).
First, appellant argues that his trial counsel was ineffective
for failing to investigate appellant's mental health and substance abuse
history and present this evidence at sentencing. Appellant relies in part
on the ABA Standards for Criminal Justice and the Nevada Indigent
Defense Standards of Performance adopted by this court.
Appellant fails to demonstrate that his trial counsel was
deficient. While the ABA Standards for Criminal Justice and the Nevada
Indigent Defense Standards of Performance adopted by this court provide
some guidance, they are not "inexorable commands" to trial counsel.
Bobby v. Van Hook, 558 U.S. 4, 8 (2009). Rather, trial counsel is
constitutionally deficient only when counsel fails to make objectively
reasonable choices, id. at 9, and there is a "strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Here, trial counsel sought a
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competency evaluation of appellant, and the evaluator concluded that
appellant was competent. The evaluation discussed appellant's mental
health issues, including appellant's use of psychiatric medications and the
occurrence of auditory hallucinations. Letters in mitigation from
appellant's family and friends were submitted to the district court for
consideration at sentencing and these letters discuss appellant's mental
health issues, including appellant's bipolar disorder, borderline
schizophrenia disorder, anxiety and depression, and troubles with
medication and changes in medication protocols.' The presentence
investigation report contained further information about his mental
health history, including his prior suicide attempts and the fact that he
was housed in the "psych ward" for a portion of a prior period of
incarceration. The presentence investigation report further set forth
medical issues and his substance abuse history. Appellant fails to
demonstrate that counsel was objectively unreasonable in failing to
conduct further investigation and to present further mitigation
information at sentencing.
Appellant further fails to demonstrate that he was prejudiced.
In rejecting his trial counsel's argument for concurrent sentences, the
district court spoke about appellant's criminal history, the escalation of
the crimes committed, and the potential of future danger. Under these
'We note that appellant's own letter to the court for consideration at
sentencing failed to set forth the entirety of his mental health and medical
history that he now asserts should have been investigated by his trial
counsel and presented to the court at sentencing.
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circumstances, appellant fails to demonstrate that further investigation
and presentation of mitigation information would have had a reasonable
probability of altering the sentence imposed. Therefore, we conclude that
the district court did not err in denying this claim without an evidentiary
hearing. 2
Second, appellant argues that his trial counsel was ineffective
for failing to investigate appellant's mental health and substance abuse
history and secure a favorable plea negotiation. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. The premise of this claim is entirely speculative. As
noted above, the documents before this court indicate that trial counsel
was aware prior to entry of the plea of appellant's mental health issues.
Appellant fails to demonstrate that there was a reasonable probability of a
favorable plea negotiation had trial counselS presented appellant's mental
health and substance abuse history to the prosecutor. Therefore, the
district court did not err in denying this claim without an evidentiary
hearing.
Third, appellant argues that his trial counsel was ineffective
for inducing his guilty plea with inaccurate representations about whether
he qualified for violent-offender habitual criminal treatment under NRS
2To the extent that appellant argues that his trial counsel was
ineffective for failing to attend the presentence investigation interview
with appellant, appellant fails to demonstrate that his trial counsel's
performance was deficient or that there was a reasonable probability of a
different outcome had trial counsel attended the presentence investigation
interview.
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207.012. Appellant asserts that he was led to believe that he did not
qualify for violent-offender habitual criminal treatment. In support,
appellant argues that trial counsel's statement during the plea canvass
that the State would need to provide proof of the prior convictions
indicates that counsel did not believe that there were two qualifying
convictions. Appellant further notes that notice of NRS 207.012 was only
included for the first time in the amended information prepared for the
plea negotiations and not in the first information, which only noticed NRS
207.010. Appellant argues that there was no significant benefit to
pleading guilty to two counts that could be enhanced under NRS 207.012
unless there was a mistaken belief that he was not eligible under NRS
207.012.
Appellant fails to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Appellant fails to
demonstrate that trial counsel misrepresented whether he qualified for
violent-offender habitual criminal treatment under NRS 207.012. The
documents provided to this court show that appellant entered a guilty plea
with the understanding that the State was seeking violent-offender
habitual criminal treatment. Despite the fact that the first information
only contained a citation to NRS 207.010, appellant was provided notice of
NRS 207.012 in the written guilty plea agreement, the amended
information, and during the plea canvass. Further, the State mentioned
in the justice court that appellant faced mandatory, violent-offender
habitual criminal treatment. The fact that trial counsel reiterated the
State's duty to present proof of the prior convictions cannot reasonably be
interpreted in the manner suggested by appellant. Further, contrary to
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the assertion of appellant, he received a benefit by entry of his guilty plea
as he avoided two additional felony counts. Under these circumstances,
appellant fails to demonstrate that there was a reasonable probability that
he would not have entered a guilty plea and would have insisted on going
to trial. Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
li J.
Hardesty
— DO tX-ek J.
Douglas
C,_-LtiZ J.
Cherry LS2
cc: Hon. Douglas W. Herndon, District Judge
Coyer & Landis, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3We note that appellant's briefs do not comply with NRAP 32(a)(4)
because the text is not double spaced. In light of counsel's inaccurate
certification that the briefs complied with formatting requirements of
NRAP 32(a)(4), counsel is cautioned that the failure to comply with the
briefing requirements in the future may result in the imposition of
sanctions. See NRAP 28.2(b).
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