697. To warrant an evidentiary hearing, a petitioner must raise claims
supported by specific factual allegations that, if true and not repelled by
the record, would entitle him to relief. Hargrove v. State, 100 Nev. 498,
502, 686 P.2d 222, 225 (1984).
First, appellant argues that counsel was ineffective for failing
to adequately investigate the case before encouraging him to plead guilty
to the sexual assault charge where the victim denied penetration during
the preliminary hearing and her physical exam showed no evidence of
penetration. Appellant has failed to demonstrate deficiency or prejudice.
Although the victim's testimony was equivocal as to whether appellant
penetrated her, appellant admitted to "a little bit" of digital penetration in
his interview with the detective. Moreover, appellant admitted to several
instances of lewd conduct but was only convicted of one count. Appellant
thus failed to demonstrate that counsel was objectively unreasonable or
that, but for any errors counsel made, he would not have pleaded guilty
and would have insisted on going to trial. We therefore conclude that the
district court did not err in denying this claim without an evidentiary
hearing.
Second, appellant argues that counsel was ineffective for
encouraging a guilty plea where the State would argue for the maximum
sentence of consecutive terms Appellant has failed to demonstrate
deficiency or prejudice. Appellant's claim is repelled by the record as the
guilty plea agreement states only that the State could argue for the
maximum sentence, not that it would argue for such. Insofar as appellant
claims counsel was ineffective in not explaining that he could spend a
minimum of 30 years in prison, appellant has failed to demonstrate that
counsel was objectively unreasonable in not explaining that consecutive
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minimum terms of 20 and 10 years would result in a minimum aggregate
term of 30 years where appellant stated that he understood the terms of
the agreement. Moreover, in light of appellant's confession to not only
sexual assault but to several instances of lewd conduct for which the State
agreed not to bring charges, appellant has not demonstrated a reasonable
probability that, but for counsel's alleged failures, he would not have
pleaded guilty and would have insisted on going to trial We therefore
conclude that the district court did not err in denying this claim without
an evidentiary hearing.
Finally, appellant argues that counsel was ineffective for
failing to obtain and present certain mitigation evidence at sentencing.
Specifically, appellant believes counsel should have presented the physical
exam showing that the victim had no signs of sexual abuse, called Division
of Parole and Probation (DPP) employees to testify, presented evidence of
his remorsefulness, and obtained and presented a psycho-sexual
evaluation to demonstrate that he was a low risk to re-offend. Appellant
has failed to demonstrate deficiency or prejudice. Appellant's bare claims
neither explained the significance of the physical exam findings in light of
the nature of the allegations and his confession nor what additional
information DPP employees would have provided beyond what was in his
presentence investigation report. Further, in light of DPP's
recommendation that appellant be sentenced to concurrent terms,
appellant has failed to demonstrate that counsel was objectively
unreasonable in failing to emphasize his remorsefulness—which appellant
himself expressed at the sentencing hearing—or to obtain a psycho-sexual
evaluation. We therefore conclude that the district court did not err in
denying this claim without an evidentiary hearing.
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For the foregoing reasons, we conclude appellant's claims are
without merit, and we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
J.
Douglas
J.
cc: Hon. Lidia Stiglich, District Judge
Mary Lou Wilson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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