Misiewicz (William) v. State ( 2014 )

 Next, appellant claimed that his counsel was ineffective. To
prove ineffective assistance of counsel, a petitioner must demonstrate that
counsel's performance was deficient in that it fell below an objective
standard of reasonableness, and resulting prejudice such that there is a
reasonable probability that, but for counsel's errors, the outcome of the
proceedings would have been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d
504, 505 (1984) (adopting the test in Strickland). To demonstrate
prejudice regarding the decision to enter a guilty plea, a petitioner must
demonstrate a reasonable probability that, but for counsel's errors,
petitioner would not have pleaded guilty and would have insisted on going
to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112
Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the
inquiry must be shown. Strickland, 466 U.S. at 697.
First, appellant claimed that counsel was ineffective because
she coerced appellant to plead guilty by utilizing intimidation tactics and
she did not explain the consequences of the plea agreement. Additionally,
appellant claimed that his plea was made without deliberation and
pursuant to promises not on the record. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
Appellant acknowledged in the guilty plea agreement and at the plea
canvass that he entered his guilty plea voluntarily and did not act under
duress or coercion. The guilty plea agreement provided that appellant
signed the agreement voluntarily, after consultation with counsel, and
that he was not acting under the virtue of any promises of leniency except
for those set forth in the agreement. Moreover, the guilty plea agreement
set forth the consequences of appellant's plea, and the district court
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confirmed that appellant understood those consequences at the plea
canvas. Therefore, the district court did not err in denying this claim.
Second, appellant claimed that counsel was ineffective for
failing to take adequate time to prepare a defense. Appellant failed to
demonstrate either deficiency or prejudice for this claim as he did not
support this claim with specific facts that, if true, would entitle him to
relief. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225
(1984). Therefore, the district court did not err in denying this claim.
Third, appellant claimed that counsel was ineffective for
failing to discover or present evidence concerning appellant's character
and emotional state and for failing to request a psychological examination
of appellant. Appellant claimed that he committed the crimes under
extreme mental and emotional disturbance and that counsel failed to
investigate or present evidence of his mental state during mitigation.
Appellant failed to demonstrate that his counsel's performance was
deficient or that he was prejudiced. At sentencing, counsel argued that
appellant suffered from severe depression and posttraumatic stress.
Appellant did not allege or present further evidence of his mental state
that counsel should have investigated and presented to the district court. 2
Therefore, the district court did not err in denying this claim.
Fourth, appellant claimed that counsel was ineffective for
failing to question any witnesses or take depositions of any victims.
2 Appellant
failed to demonstrate that he was incompetent—that he
did not understand the proceedings or charges and was unable to assist
his counsel during trial and sentencing in this case. See NRS 178.400(2);
Melchor-Gloria v. State, 99 Nev. 174, 180, 600 P.2d 109, 113 (1983); see
also Dusky v. United States, 362 U.S. 402 (1960).
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Appellant claimed that, had counsel questioned the victims, the case
would have been civil, and not criminal, in nature. Additionally, appellant
claimed that his counsel failed to request a psychological examination of
the victims. Appellant failed to support these claims with specific facts
that, if true, would have entitled him to relief Hargrove, 100 Nev. at 502-
03, 686 P.2d at 225. Appellant failed to specify what victims or witnesses
should have been interviewed or examined and what additional
information would have been revealed. Therefore, the district court did
not err in denying this claim.
Fifth, appellant claimed that counsel was ineffective for failing
to use her office's full-time investigator and to investigate the victims'
backgrounds. Appellant failed to support these claims with specific facts
that, if true, would have entitled him to relief. Id. Therefore, the district
court did not err in denying this claim.
Sixth, appellant claimed that trial counsel was ineffective for
failing to file an appeal after he requested counsel to file one. Appellant
failed to demonstrate that his counsel's performance was deficient or that
he was prejudiced. The guilty plea agreement stated that appellant
unconditionally waived his right to a direct appeal of the conviction,
"including any challenge based upon reasonable constitutional,
jurisdictional or other grounds that challenge the legality of the
proceedings as stated in NRS 177.015(4)." This court has held that "[al
knowing and voluntary waiver of the right to appeal made pursuant to a
plea bargain is valid and enforceable." Cruzado v. State, 110 Nev. 745,
747, 879 P.2d 1195, 1195 (1994), overruled on other grounds by Lee v.
State, 115 Nev. 207, 985 P.2d 164 (1999). At the plea canvass, appellant
indicated that he received a copy of the guilty plea agreement, read
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through it, understood it, and had his attorney answer questions
regarding the agreement before signing the agreement freely and
voluntarily. Appellant further indicated that he understood the
constitutional rights he was waiving pursuant to the plea agreement and
discussed those rights with his attorney. Therefore, the district court did
not err in denying this claim, and we
ORDER the judgment of the district court AFFIRMED. 3
cc: Hon. Douglas Smith, District Judge
William Carl Misiewicz
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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