Saintal (Priscella) v. State ( 2013 )

 application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant argues that her trial counsel was ineffective
for failing to investigate and present testimony from her sister and her
husband. Appellant fails to demonstrate that her trial counsel's
performance was deficient or that she was prejudiced. Counsel testified at
the evidentiary hearing that he attempted to locate both individuals with
the contact information provided by appellant, but was unsuccessful in his
attempts to locate them. Appellant fails to demonstrate a reasonable
probability of a different outcome at trial had counsel investigated these
potential witnesses further. See Molina v. State, 120 Nev. 185, 192, 87
P.3d 533, 538 (2004). Therefore, the district court did not err in denying
this claim.
Second, appellant argues that her trial counsel was ineffective
for failing to investigate appellant's mental health to determine her
competency and for mitigation purposes at the sentencing hearing.
Appellant asserts she took medication and was shaking during trial,
which she alleges indicated that she had a mental hardship. Appellant
fails to demonstrate her trial counsel's performance was deficient or that
she was prejudiced. Counsel testified at the evidentiary hearing that they
had no concerns regarding appellant's mental health and that she was
very active in aiding in her defense. That appellant used medication and
shook during trial is insufficient to demonstrate that she did not have the
ability to consult with her attorney with a reasonable degree of rational
understanding and that she did not have a factual understanding of the
proceedings against her. See Melchor-Gloria v. State, 99 Nev. 174, 179-80,
660 P.2d 109, 113 (1983) (citing Dusky v. United States, 362 U.S. 402, 402
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(1960)). Appellant fails to demonstrate a reasonable probability of a
different outcome at trial or at the sentencing hearing had further
investigation of her mental health or mitigation evidence been performed
as appellant fails to demonstrate what further investigation would have
uncovered. See Molina, 120 Nev. at 192, 87 P.3d at 538. Therefore, the
district court did not err in denying this claim.
Third, appellant argues that her trial counsel was ineffective
for incorrectly advising her regarding the habitual criminal enhancement,
as appellant believes she may have received a lesser sentence through a
plea deal had she been advised differently by counsel. While the record
regarding the State's plea offers is not clear, counsel stated at the
evidentiary hearing that they believed it was to appellant's advantage to
go to trial as the State had erroneously cited to NRS 207.012 rather than
NRS 207.010 in the notice of intent to seek treatment as a habitual
criminal and appellant was not eligible for enhancement under NRS
207.012. Counsel testified that this strategy was successful until the
district court received a decision in a different criminal case from this
court which concluded there was no prejudice from a similar error in the
notice of intent to seek treatment as a habitual criminal. 1
Appellant fails to demonstrate that she was prejudiced.
Appellant fails to meet her burden to demonstrate a reasonable
probability that the outcome would have been different as she fails to
'This court held on direct appeal that appellant was not prejudiced
by the incorrect initial notice of intent as it provided appellant sufficient
notice that the State intended to pursue punishment as a habitual
criminal. Saintal v. State, Docket No. 49646 (Order of Affirmance, June
30, 2009).
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demonstrate that there was a plea offer she would have accepted, that the
district court would also have accepted it, and that it would have been less
severe than the actual sentence imposed. See Lafler v. Cooper, 566 U.S.
„ 132 S. Ct. 1376, 1385 (2012). Therefore, the district court did not
err in denying this claim.
Fourth, appellant argues that the cumulative errors of counsel
amount to ineffective assistance of counsel. As appellant fails to
demonstrate deficiency or prejudice for any of her claims, she fails to
demonstrate cumulative errors of counsel caused her to receive ineffective
assistance of counsel. Therefore, the district court did not err in denying
this claim.
Having considered appellant's contentions and concluding
they are without merit, we
ORDER the judgment of the district court AFFIRMED.
I
.Aeg J.
Hardesty
-g41
Parraguirre
J.
cc: Hon. Jerome T. Tao, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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