Austerman (John) v. State ( 2014 )

 Both components of the inquiry must be shown, Strickland, 466 U.S. at
697, and the petitioner must demonstrate the underlying facts by a
preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103
P.3d 25, 33 (2004). We give deference to the district 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 argues that his trial counsel was ineffective
for arguing for life sentences in this case and for not presenting mitigating
evidence. Appellant asserts that counsel's decision to argue for life
sentences imposed to run concurrently with a life sentence imposed in
another case was flawed because that case was not final (on appeal) when
counsel made the argument and counsel failed to investigate this fact.
Appellant fails to demonstrate that his counsel's performance
was deficient or that he was prejudiced. Appellant's counsel testified at
the evidentiary hearing that he made a tactical decision to argue for
concurrent life sentences based upon the resolution of the prior case (as
resolved at the time of sentencing) and based upon the State's arguments
at sentencing. Appellant's trial counsel further testified that he discussed
with appellant various arguments that could be made at sentencing and
that appellant agreed to the argument made by counsel. The fact that the
other case was on appeal at the time of sentencing in this case and later
reversed after sentencing in this case does not render trial counsel's
decision and argument at the time of sentencing unreasonable as
ineffective-assistance-of-counsel claims are viewed without the distorting
effect of hindsight. Strickland, 466 U.S. at 687-88. Tactical decisions of
counsel are virtually unchallengeable absent extraordinary circumstances,
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and appellant demonstrated no such extraordinary circumstances here.
Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990). Regarding
the issue of mitigation evidence, counsel testified that he did discuss this
with appellant. Appellant fails to demonstrate that there was a
reasonable probability of a different outcome at sentencing had trial
counsel not made the argument for concurrent sentences or presented
mitigating evidence. Therefore, we conclude that the district court did not
err in denying this claim.'
Second, appellant argues that his counsel was ineffective for
coercing or misleading him into entering a guilty plea and not
investigating his mental health issues. Appellant asserts that he was
under the influence of psychotropic medications at the time of his plea and
was confused.
Appellant fails to demonstrate that his counsel's performance
was deficient or that he was prejudiced. Appellant failed to present any
evidence of coercion at the evidentiary hearing. Appellant's counsel
testified at the evidentiary hearing that he did not tell appellant that he
would not be adjudicated a habitual criminal and that he would receive
three consecutive 4 to 10 year sentences. The district court determined
that appellant's testimony to the contrary was incredible, and substantial
evidence supports this determination. Appellant was personally
canvassed about whether he had read the plea agreement, whether he had
enough time to review the plea agreement with counsel, the elements of
'To the extent that appellant argues the district court erred in
refusing to consider letters submitted at the evidentiary hearing, we
conclude that the district court did not err as those letters were not
authenticated.
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the offenses, the terms of the negotiations and the potential consequences,
and appellant acknowledged that his plea was not the result of threats or
promises not contained in the guilty plea agreement. Appellant further
provided a factual basis for the counts in his own words, and appellant
answered affirmatively that he was not under the influence of anything,
was "clearheaded," and understood the proceedings. Appellant's trial
counsel testified that he had no reason to believe appellant was
incompetent to enter a guilty plea. Although appellant provided mental
health records showing that he was medicated at the time of his plea, he
fails to demonstrate that he was incompetent at the time of his plea—that
he did not understand the proceedings or was unable to assist his counsel.
See NRS 178.400(2); Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d
109, 113 (1983); see also Dusky v. United States, 362 U.S. 402 (1960).
Appellant fails to demonstrate a reasonable probability of a different
outcome had trial counsel further investigated his mental health issues.
Therefore, we conclude that the district court did not err in denying this
claim.
Third, appellant argues that at sentencing the district court
provided an incorrect statement of law regarding possible sentences under
NRS 207.016(1), and thus, he should be resentenced. This claim is outside
the scope of claims permissible in a post-conviction petition for a writ of
habeas corpus challenging a judgment of conviction arising from a guilty
plea. See NRS 34.810(1)(a). To the extent that appellant argues that the
district court repeated this error at the evidentiary hearing, the district
court did not rely on this alleged error in rejecting the claims of ineffective
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assistance of counsel raised in the petition. 2 Finally, to the extent that
appellant argues that the district court repeated its error in denying his
motion for reconsideration, the denial of a motion to reconsider is not an
appealable decision and any error in that proceeding cannot provide a
basis for relief in this appeal. See Phelps v. State, 111 Nev. 1021, 1022-23,
900 P.2d 344, 344-45 (1995); Castillo v. State, 106 Nev. 349, 352, 792 P.2d
1133, 1135 (1990). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Pickering
-Ir2 Itatt-prr"
Parrazuirre
'I
J.
J.
Saitta
cc: Hon. Jerome Polaha, District Judge
Edward T. Reed
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
The district court made only a brief reference to its understanding
2
of how NRS 207.016 operated. The written findings of fact and
conclusions of law contain no reference to the court's interpretation of NRS
207.016.
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