would have said or what actions counsel could have taken which would
have changed the sentence imposed. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984) (a petitioner must demonstrate that counsel's
performance fell below an objective standard of reasonableness, and a
reasonable probability that, but for counsel's errors, the outcome of the
proceedings would have been different); Warden v. Lyons, 100 Nev. 430,
432-33, 683 P.2d 504, 505 (1984). We conclude that the district court did
not err by denying this claim and by doing so without conducting an
evidentiary hearing. See Rubio v. State, 124 Nev. 1032, 1046, 194 P.3d
1224, 1233-34 (2008) ("[W]hen the defendant's claims are belied by the
record or not supported by specific facts, which, if true, would entitle him
to relief, the district court may reject a claim without conducting an
evidentiary hearing.").
Second, Uribe contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to
argue that the sentencing court abused its discretion by neglecting to
consider the factors enumerated in NRS 193.165(1)(a)-(e) and explain its
reasons for imposing sentence. We decline to consider these assertions
because they were not raised below. See 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). Moreover, as explained
above, the sentencing court specifically noted that it had considered the
factors enumerated in NRS 193.165(1)(a)-(e) and explained its reasons for
imposing sentence and therefore this claim would have been unsuccessful
on appeal. See Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14
(1996) (holding that to prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance fell below an
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objective standard of reasonableness and that the omitted issue would
have had a reasonable probability of success on appeal).
Third, Uribe contends that the district court erred by denying
his claim that his guilty plea was not knowingly and voluntarily entered
due to the ineffective assistance of counsel. Below, Uribe contended that
counsel failed to explain to him the legal effect of self-defense and that the
State bore the burden of proof at trial. The district court found that
counsel was not deficient and denied this claim because Uribe admitted at
the evidentiary hearing that counsel discussed self-defense and the burden
of proof with him. Uribe failed to demonstrate that his plea was not
knowingly and voluntarily entered because the record indicates that he
understood the nature of the charges and the consequences of pleading
guilty. We conclude that the district court did not err by denying this
claim. See Rubio, 124 Nev. at 1038, 194 P.3d at 1228.
Fourth, Uribe contends that the district court erred by
denying his claim that his guilty plea was not knowingly and voluntarily
entered because he was incompetent at the time he pleaded guilty.
However, Uribe argued below that counsel was ineffective for failing to
determine whether he was competent. Because the assertion on appeal is
not the same as that raised below, we decline to consider it. See Ford v.
Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995) (an appellant "cannot
change [his] theory underlying an assignment of error on appeal").
Fifth, Uribe contends that the sentencing court abused its
discretion by (1) considering suspect evidence, (2) failing to consider
mitigating evidence, and (3) imposing a sentence "in excess of that needed
for society's interests." The district court denied this claim on the grounds
that it should have been raised on direct appeal. See Franklin v. State,
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110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (claims that are appropriate
for a direct appeal must be pursed on direct appeal or will be considered
waived, including "a challenge to the sentence imposed on constitutional
or other grounds"). We conclude that the district court did not err by
denying this claim. See also NRS 34.810(1)(a) (limiting scope of claims
that may be raised where conviction was upon a guilty plea).
We conclude that no relief is warranted, and we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
Douglas
cc: Hon. Patrick Flanagan, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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