failed to demonstrate that his plea was not knowingly, voluntarily, and
intelligently entered. At the plea canvass, appellant affirmed that he read
and understood the plea agreement, that he did not have any questions
about it, that he was pleading guilty because he believed it was in his best
interest, and that he had committed each of the offenses to which he was
pleading guilty. The plea agreement informed appellant of the possible
sentences and the rights that he was waiving by pleading guilty.
While appellant acknowledges on appeal that the district court
was not required to conduct a "ritualistic oral canvass," appellant contends
that the oral canvass here was insufficient because appellant had a low IQ
and low reading and spelling abilities. We disagree. Appellant's claim as
to his mental deficiencies is based on conclusions in a psychological
evaluation that was conducted for mitigation purposes prior to the plea.
The psychologist who conducted the evaluation testified at the evidentiary
hearing that she did not evaluate appellant's competency and would have
told counsel if she had any doubts about his ability to understand the
proceedings. The psychologist further testified that appellant could be
made to understand the terms of the plea agreement. Trial counsel
testified that he read and explained the plea agreement to appellant, and
that he had no indication that appellant was unable to comprehend the
plea agreement or proceedings. Appellant has failed to demonstrate that
his mental deficiencies rendered him unable to understand the
proceedings. See NRS 178.400; see also Godinez v. Moran, 509 U.S. 389,
396-97 (1993); Dusky v. United States, 362 U.S. 402, 402 (1960).
Therefore, we conclude that the district court did not err in denying this
claim.
Appellant also contends that the plea canvass was defective as
to the murder count because counsel, and not appellant, answered "yes" to
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the district court's question as to whether he committed murder with the
use of a deadly weapon. We conclude that appellant has failed to
demonstrate that his plea to murder was invalid. The record shows that
counsel was merely clarifying the theory of liability. As discussed above,
the totality of the circumstances supports the district court's finding that
appellant entered a valid plea of guilty. Therefore, we conclude that the
district court did not err in denying this claim.
Next, appellant argues that the district court erred in denying
his claims of ineffective assistance of counsel. To prove ineffective
assistance of counsel sufficient to invalidate a judgment of conviction
based on a guilty plea, a petitioner must demonstrate that his 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, 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 v. Washington, 466 U.S. 668, 697 (1984). We give deference to
the 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).
First, appellant contends that trial counsel was ineffective for
failing to ask the district court to assess his ability to enter a plea.
Appellant has failed to demonstrate that counsel's performance was
deficient or that he was prejudiced. Appellant's claim is based on the
psychological evaluation that was conducted prior to his plea. However, as
discussed above, neither the evaluation nor the evidence •at the
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evidentiary hearing demonstrated that he was incompetent. Therefore,
we conclude that the district court did not err in denying this claim.
Second, appellant argues that trial counsel was ineffective for
misrepresenting that appellant would receive a sentence of life with the
possibility of parole if he entered a plea. Appellant has failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced. Counsel testified that he never promised appellant a sentence
of life with the possibility of parole. Appellant was informed in the written
plea agreement that life without the possibility of parole was a potential
sentence, and he affirmed at the plea canvass his understanding that the
sentence was entirely within the district court's discretion. Therefore, we
conclude that the district court did not err in denying this claim.
Third, appellant argues that trial counsel was ineffective for
coercing him into pleading guilty by having an investigator from the
Public Defender's Office speak to appellant about the life of an inmate on
death row. He asserts that trial counsel misrepresented to him that the
investigator was actually a "death row attorney." Appellant has failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced. Counsel testified that he asked the investigator to provide
appellant with an accurate understanding of life on death row so that
appellant would be able to make an informed decision as to whether to
enter a guilty plea. Counsel denied ever representing to appellant that
the investigator was an attorney. Furthermore, in entering the plea,
appellant acknowledged that he was not forced to enter a plea and was
entering his plea of his own free will. Therefore, we conclude that the
district court did not err in denying this claim.
Fourth, appellant argues that trial counsel was ineffective for
failing to file a direct appeal. Appellant has failed to demonstrate that
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counsel's performance was deficient. Counsel testified that appellant
never asked him to file a direct appeal. Counsel testified that he spoke to
appellant shortly after sentencing and explained to him that there were no
meritorious issues to raise on direct appeal, and they agreed that
appellant would file a post-conviction petition if he wished to seek relief.
The district court found counsel's testimony to be credible, and we
conclude that the district court did not err in denying this claim.
Finally, appellant contends that a conflict of interest arose
when trial counsel asked the investigator to speak with him because the
Public Defender's Office represented his codefendant and the
codefendant's plea deal was conditioned on appellant's entry of a plea.
Appellant's bare allegation fails to demonstrate an actual conflict of
interest. See Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376
(1992). Therefore, we conclude that the district court did not err in
denying this claim.
For the foregoing reasons, we conclude that the district court
did not err in denying the petition, and we
ORDER the judgment of the district court AFFIRMED.
C.J.
J. J.
Pickering Saitta
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cc: Hon. Kathleen E. Delaney, District Judge
Carmine J. Colucci & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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