Moore (Donn) v. Warden ( 2014 )

 sentencing court's reliance on suspect evidence. We disagree. The same
district court judge who sentenced appellant considered this claim and
determined that her offhand remark that appellant might "be out in seven
and a half or eight years," made after sentence was imposed, was a mere
misstatement rather than suspect evidence. The record supports this
determination, and we conclude that the district court did not err by
denying this claim.
Second, appellant contends that the district court erred by
denying his claim that counsel was ineffective for failing to present
mitigating evidence regarding his mental health issues. The district court
conducted an evidentiary hearing, wherein counsel testified that appellant
never informed her he had mental health issues. The district court found
that counsel's testimony was credible and concluded that counsel was not
deficient. The district court also concluded that appellant was not
prejudiced because the newly offered mitigation was equally as damaging
as it was helpful and conflicted with counsel's strategic choice of
presenting appellant as an addict who was successfully addressing his
addiction. Moreover, the district court noted that it would not have
sentenced appellant differently had counsel presented additional
mitigation. We conclude that the district court did not err by denying this
claim.
Third, appellant contends that the district court erred by
denying his claim that counsel was ineffective for suggesting that he
would not be adjudicated a habitual offender. Appellant also contends
that the district court erred by denying his claim that his plea was invalid
because of counsel's suggestion. The district court denied these claims
because it found that appellant's testimony in this regard was not credible.
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Moreover, appellant acknowledged in his guilty plea agreement and
during the plea canvass that sentencing was up to the court and stated
that he had not been promised a particular sentence. See Crawford v.
State, 117 Nev. 718, 722, 30 P.3d 1123, 1126 (2001) ("A thorough plea
canvass coupled with a detailed, consistent, written plea agreement
supports a finding that the defendant entered the plea voluntarily,
knowingly, and intelligently."). We conclude that the district court did not
err by denying this claim.
Fourth, appellant contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to
argue that the sentence was excessive and unreasonable. Appellant failed
to demonstrate that this argument had a reasonable probability of success
on appeal, and we therefore conclude that the district court did not err by
denying this claim. See Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102,
1113-14 (1996).
Having considered appellant's contentions and concluded that
no relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
J.
Pickering Saitta
cc: Hon. Janet J. Berry, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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