appellant, the district court again denied appellant's claim. This appeal
followed.
Appellant argues that the district court erred in denying his
claim that counsel was ineffective in advising him to reject an early plea
offer. To prove ineffective assistance of 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
there is a reasonable probability that, but for counsel's errors, the outcome
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984) (adopting the test in Strickland). 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).
Appellant argues that counsel was ineffective for advising him
to reject the earlier plea offer where counsel explained that it was not a
good deal since appellant was eligible for probation. We conclude that the
district court erred in finding that appellant failed to demonstrate that
counsel's performance was deficient. Appellant demonstrated the
underlying facts by a preponderance of the evidence.
Appellant demonstrated that the State initially offered a more
favorable plea deal, which expired at the preliminary hearing. Appellant
testified in accordance with his pleadings that the State's earlier plea offer
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was for appellant to plead guilty to the burglary count in exchange for the
State dismissing the possession-of-burglary-tools count and stipulating to
a sentence of 5 to 12.5 years (consistent with an adjudication as a "small"
habitual criminal pursuant to NRS 207.010(1)(a)). Counsel did not
specifically recall the offer but testified that that would have been a
standard offer under appellant's circumstances and that such an offer was
usually withdrawn once a case was taken to a preliminary hearing. The
State has not disputed this either below or on appeal.
Appellant also demonstrated that counsel suggested he reject
the offer. Appellant testified in accordance with his pleadings that counsel
said it was a "lousy" deal and that he should reject it because burglary was
a probationable offense. Counsel could not specifically recall the
conversations around the offer, but his testimony at the hearing leant
support to appellant's claim. Counsel testified that he would not, at such
an early stage in the proceedings, have talked with appellant about
pleading "straight up" to the burglary, which the initial plea offer would
have required. Counsel also testified that he would have discussed
probation with appellant no matter the likelihood of it. Counsel's
statements on the record at a January 26, 2010, pre-plea hearing also
supported appellant's claim. There, he told the district court that he had
hoped to negotiate the case to a reduced offense and only later learned
that appellant could not get probation. Appellant thus demonstrated by a
preponderance of the evidence that counsel advised him to reject the
initial plea offer because the burglary offense was probationable. 1
'The State concedes on appeal that counsel could have been
ineffective if he knew of appellant's prior burglary convictions but still told
appellant that his burglary charge was probationable. The State then
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Counsel's advice, based on his belief of appellant's
probationability, was objectively unreasonable. Based on the crimes
charged, appellant was not eligible for probation. Appellant was charged
with one count of burglary and one count of possession of burglary tools.
Because appellant had prior convictions for burglary, he was not eligible
for probation on the burglary count. See NRS 205.060(2) ("A person who is
convicted of burglary and who has previously been convicted of
burglary. . . must not be released on probation."); NRS 176A.100(1)(a)
(prohibiting the district court from granting probation where it has been
expressly forbidden). 2
...continued
argues that the district court found appellant's allegation that counsel
would do so to be "incredible." This was not the district court's finding.
Rather, the district court found it "incredible" that counsel would have
promised appellant that he was going to get probation. We note that the
record before this court demonstrates that appellant claimed only that
counsel promised to seek probation.
The State points to language in appellant's motion to withdraw his
guilty plea, filed six months after the instant petition, as support for its
argument that counsel did not advise appellant to reject the plea. That
language is unavailing because it was specific to the guilty plea that
appellant did enter and was irrelevant to the one that he rejected, which is
what is at issue in the instant appeal
2 The district court concluded that counsel was not deficient because
the burglary was a probationable offense since the State had not pleaded
the charge as a second-offense burglary and the sentencing court had not
adjudicated it as such. The district court was in error. An information
must contain only "a plain, concise and definite written statement of the
essential facts constituting the offense charged." NRS 173.075(1). The
fact or number of prior burglary convictions is not an element of the
offense. See NRS 205.060(1); cf. NRS 484C.400(1)(c) (providing that an
element of a felony charge of driving under the influence is two prior
continued on next page...
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To the extent that the district court determined that counsel
was not deficient because he reasonably hoped to get the State to agree to
a probationable offense, the finding was not supported by the record. By
the time of the evidentiary hearing, counsel could recall very little of the
early negotiations and none of the details. However, statements he made
less than two months after the preliminary hearing indicate that counsel
had hoped for a plea offer to a reduced offense but that it was
unreasonable. At that January 26, 2010, hearing, counsel admitted that
he "hadn't noticed early on" that appellant had prior burglary convictions,
that he missed that the State had never offered any plea except to
habitual criminal treatment, and that "the DA was never going to agree to
reduce( ] it below a burglary." He also stated that this case had always
been prosecuted by the prosecution's repeat-offenders unit, and he
testified at the evidentiary hearing that that unit "would never agree to
probation. They never do." Accordingly, based on what counsel knew or
should have known at the time, he was objectively unreasonable in
advising appellant to reject the earlier plea offer in the hopes that counsel
could negotiate a plea offer for a probationable offense.
The district court's oral statements and written order indicate
that its conclusion that appellant failed to demonstrate prejudice was
based solely upon its erroneous conclusion that appellant failed to
demonstrate deficiency. Further, there is conflicting evidence in the
...continued
offenses within seven years). Accordingly, the lack of a specific reference
to prior convictions in the pleadings was irrelevant to whether appellant
was eligible for probation. In this, the district court was correct in its
October 9, 2012, order, in which it found that "[appellant's] offense was
non-probational."
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record as to whether appellant would have accepted the earlier plea offer
but for counsel's deficient performance. 3 In light of the foregoing, we
remand this case to the district court to make applicable findings of fact
and to determine whether appellant demonstrated prejudice. Specifically,
the district court shall determine whether appellant demonstrated "a
reasonable probability [he] would have accepted the earlier plea offer had
[he] been afforded effective assistance of counsel ] . . . the plea would have
been entered without the prosecution canceling it or the trial court
refusing to accept it," and "the end result of the criminal process would
have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time." Missouri v. Frye, 566 U.S. , 132 S.
Ct. 1399, 1409 (2012).
Appellant also argues that he did not enter his guilty plea
knowingly or voluntarily. The law of the case is that appellant's guilty
plea was valid and that the totality of the circumstances indicated that he
understood the consequences of his plea. Williams v. State, Docket No.
61739 (Order Affirming in Part, Reversing in Part and Remanding, May
13, 2013). "The doctrine of the law of the case cannot be avoided by a more
detailed and precisely focused argument subsequently made after
reflection upon the previous proceedings." Hall v. State, 91 Nev. 314, 316,
535 P.2d 797, 799 (1975).
3 Forexample, appellant's statements from a pre-guilty-plea hearing
suggested that he did not plead guilty because he felt that burglary should
only be a category C felony and not a category B felony as charged by the
State and required by statute. See NRS 205.060(b). However, at his
evidentiary hearing, appellant steadfastly asserted that he would have
accepted the earlier plea offer had he but known that probation was not an
option.
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Finally, appellant argues that the district court impermissibly
interfered with plea negotiations in violation of Cripps v. State, 122 Nev.
764, 137 P.3d 1187 (2006). As this claim was not raised below, we need
not consider it on appeal in the first instance. Davis v. State, 107 Nev.
600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means
v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004). Appellant's claim
that the district court erred in denying his oral request to supplement his
petition is of no avail as the statute authorizing the appointment of
counsel does not require a motion on the part of counsel nor permission by
the district court to file a supplemental petition within 30 days of
appointment of counsel. NRS 34.750(3). Appellant did not allege, nor
does the record demonstrate, that he attempted to file a supplemental
petition.
For the foregoing reasons, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 4
Hardesty
D3476t
a
Douglas
1 J.
4 This
order constitutes our final disposition of this appeal. Any
subsequent appeal shall be docketed as a new matter.
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cc: Hon. Douglas W. Herndon, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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