Bailey (Anthony) v. State ( 2014 )

 evidence and are not clearly wrong 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, Bailey claims that trial counsel was ineffective for
failing to communicate with Bailey and for failing to investigate the
charges. At the evidentiary hearing, Bailey testified that he had concerns
regarding the plea agreement that he wanted to discuss with counsel but
that he was unable to communicate with counsel until after he entered his
plea, as counsel's associate appeared with Bailey for the plea. Bailey
further testified that counsel failed to investigate prior incidents of false
reporting by the victim and investigate a possible alibi.' The district court
concluded that counsel's actions fell below an objective standard of
reasonableness but that Bailey failed to demonstrate prejudice. The
district court's factual findings are supported by the record and are not
clearly wrong. We conclude that the district court did not err by denying
this claim.
Second, Bailey claims that trial counsel was ineffective for
failing to file an appeal from his judgment of conviction. At the
evidentiary hearing, Bailey testified that he attempted to contact counsel
shortly after sentencing to discuss a motion to withdraw the plea. Bailey
then attempted to file his own motion to withdraw the plea and later a
'Bailey's counsel did not testify at the evidentiary hearing.
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motion to dismiss counsel, in which Bailey asserted that he asked counsel
several times to take action to enforce the plea agreement or to pursue
another remedy. The district court concluded that counsel's actions fell
below an objective standard of reasonableness but that Bailey failed to
demonstrate prejudice.
Based upon our review of the record on appeal, we conclude
that the district court erred in denying this claim. Trial counsel has a
duty to file a direct appeal when a client requests one or when the client
expresses dissatisfaction with his conviction and sentence. See Toston v.
State, 127 Nev. „ 267 P.3d 795, 800 (2011). The district court
concluded that counsel's performance was deficient, given Bailey's
expressed dissatisfaction with his conviction and sentence. We agree, and
because prejudice is presumed, see id. at 267 P.3d at 799, Bailey
demonstrated that he received ineffective assistance of counsel. Thus we
reverse the district court's denial of this claim and remand this matter to
the district court to provide Bailey with the remedy set forth in NRAP
4(c)(1)(B). 2 Accordingly, we
2 The district court shall enter specific findings of fact and
conclusions of law that Bailey was deprived of a direct appeal and is
entitled to a direct appeal with the assistance of counsel See NRAP
4(c)(1)(B)(i). If Bailey is indigent, the district court shall appoint appellate
counsel See NRAP 4(c)(1)(B)(ii). The district court shall also direct the
clerk of the district court to prepare and file within 5 days of entry of the
district court's order a notice of appeal from the judgment of conviction
and sentence. See NRAP 4(c)(1)(B)(iii).
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ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
tj J.
Hardesty
J.
Douglas
J.
cc: Hon. Jessie Elizabeth Walsh, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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