Gasher (Douglas) v. State ( 2015 )

 disputes. At the time the search was conducted, binding appellate
precedent held that attaching a GPS device to a vehicle did not violate the
Fourth Amendment. Osburn v. State, 118 Nev. 323, 327, 44 P.3d 523, 526
(2002); see also United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir.
1999). And "searches conducted in objectively reasonable reliance on
binding appellate precedent areS not subject to the exclusionary rule"
because application of this rule "would do nothing to deter police
misconduct" and therefore would not further the purpose of the rule.
Davis v. United States, 564 U.S. , 131 S. Ct. 2419, 2423-24, 2427
(2011). Thus Gasher's underlying Fourth Amendment claim lacked merit,
and counsel could not be ineffective for failing to raise meritless claims.
See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (setting forth the test for
ineffective assistance in relation to a guilty plea); Kirksey v. State, 112
Nev. 980, 988, 923 P.2d 1102, 1107 (1996); Donovan v. State, 94 Nev. 671,
675,584 P.2d 708, 711 (1978) (counsel is not ineffective for failing to raise
futile claims).
Finally, Gasher contends that the sentencing court violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), when it "relied on [PSI]
information to determine whether to accept the recommendation of
habitual status." This court has previously held that Gasher's sentence
was not imposed in violation of Apprendi. Gasher v. State, Docket No.
59483 (Order Affirming in Part, Reversing in Part and Remanding,
December 12, 2012). That holding is now the law of the case and "cannot
be avoided by a more detailed and precisely focused argument
subsequently made after reflection upon the previous proceedings." Hall
v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975). Moreover, as a
separate and independent ground to deny relief, Gasher's claim lacks
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merit. While Apprendi bars the consideration of information other than
the existence of prior convictions in deciding habitual-criminal eligibility,
it does not bar consideration of other information in deciding on a sentence
within the statutory range. O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38,
43 (2007). To the extent Gasher attempts to expand the district court's
comment that it would "rely upon the PSI" to determine the amount of
restitution to mean that it also relied on the PSI in determining habitual-
criminal eligibility, his argument is unreasonable. The comment was
specifically in regard to restitution and was made only after the court had
already stated it would sentence Gasher as an habitual criminal. 1
Having considered Gasher's claims and concluding they lack
merit, we
ORDER the judgment of conviction AFFIRMED.
0iturelettAA",,ne
Gibbons Pickering
cc: Hon. Michelle Leavitt, District Judge
The Kice Law Group, LLC
Attorney. General/Carson City
Clark County District Attorney
Eighth District Court Clerk
1 Gasherwas instead granted an evidentiary hearing to determine
the amount of restitution.
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