Ludwig (Julius) v. State ( 2014 )

 if the error was plain or clear, and if the error affected the defendant's
substantial rights."). Appellant's contention ignores evidence in the record
that a police officer initiated the traffic stop not only because of the
improper license plates but also because appellant's vehicle fit the
description of a suspect vehicle from a residential burglary. Nothing in
the record plainly shows that the traffic stop or ensuing detention was
improper such that any evidence subsequently recovered should have been
suppressed. Therefore, we conclude that appellant's claim lacks merit. 1
Second, appellant contends that the charges should have been
severed into three groups—each burglary count and the possession-of-
stolen-property counts—and tried separately. Because he did not object to
the joinder of all the offenses, we review this claim for plain error. See
Somee v. State, 124 Nev. at 443, 187 P.3d at 159. The evidence reveals
that appellant committed the two charged burglaries under the ruse of
showing interest in purchasing the victims' homes that were for sale. The
possession-of-stolen-property counts stem from his possession of
belongings that were stolen from multiple burglary victims. With no other
evidence or circumstances suggesting that joinder was improper, we
cannot say that any error is plain because it is not "so unmistakable that
it reveals itself by a casual inspection of the record." Patterson v. State,
lAppellant also claims that trial counsel was ineffective for not filing
a motion to suppress evidence recovered from his vehicle and the storage
unit. He acknowledges that this court generally declines to consider
claims of ineffective assistance of counsel on direct appeal but argues that
the record is sufficiently developed to resolve his claim. See Pellegrini v.
State, 117 Nev. 860, 882-83, 34 P.3d 519, 534 (2001). We disagree, as it is
not evident from the record that counsel was deficient for not filing a
motion to suppress. Therefore, we decline to consider this claim.
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111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (internal quotation
omitted); see Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980)
(observing that while this court may consider constitutional issues raised
for the first time on appeal, "it will not do so unless the record is developed
sufficiently both to demonstrate that fundamental rights are, in fact,
implicated and to provide an adequate basis for review"). We therefore
conclude that appellant's claim lacks merit.
Third, appellant argues that a conflict of interest arose with
trial counsel and therefore the district court should have appointed new
counsel. He specifically complains that trial counsel refused to file a
motion to suppress evidence and failed to communicate with him and that
he had not been provided with certain discovery matters. "Absent a
showing of adequate cause, a defendant is not entitled to reject his court-
appointed counsel and request substitution of other counsel at public
expense." Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004).
We have adopted a three-factor analysis in reviewing a district court's
denial of a motion substitution of counsel: "(1) the extent of the conflict;
(2) the adequacy of the inquiry; and (3) the timeliness of the motion." Id.
(quoting United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)).
Considering the record as a whole, the crux of appellant's
conflict with counsel appears to center on his disagreement with counsel
about challenging the traffic stop and subsequent recovery of evidence
from his vehicle and the storage unit, as well as other strategic decisions
made by counsel. And it appears that, before trial, he was provided with
or was aware of the discovery matters he argued were not previously
provided to him. Further, appellant first raised his conflict-of-interest
claim approximately six weeks before trial. The district court considered
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appellant's grounds and concluded that he had not established a conflict of
interest that warranted appointment of new counsel but rather had
merely expressed a disagreement with counsel over strategic decisions.
See Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 237 (2001)
("Attorney-client conflicts justify the grant of a substitution motion only
when counsel and defendant are so at odds as to prevent presentation of
an adequate defense." (quoting State v. Stenson, 940 P.2d 1239, 1272
(Wash. 1997)), abrogated on other grounds by Nunnery v. State, 127 Nev.
, 263 P.3d 235 (2011)); see generally Watkins v. State, 93 Nev. 100, 102,
560 P.2d 921, 922 (1977) (observing that counsel's failure to make certain
objections and pursue certain lines of investigation related to trial
strategy and therefore were within the attorney's discretion). Based on
this record, we conclude that the district court did not abuse its discretion
by refusing to appoint appellant new counsel. See Gallego, 117 Nev. at
362, 23 P.3d at 237 (reviewing a district court's denial of a motion to
substitute counsel for abuse of discretion).
Fourth, appellant complains that he should not have been
adjudicated a habitual criminal because all of his prior convictions
involved non-violent offenses. He acknowledges this court's decision in
Arajakts v. State that the habitual criminal statute "makes no special
allowance for non-violent crimes" but requests that we overrule that
decision. 108 Nev. 976, 983, 843 P.2d 800, 805 (1992). Between 1994 and
2010, appellant incurred nine felony convictions for drug related offenses,
burglary, and possession of stolen property. The current offenses involve
multiple victims and a significant amount of property. The record also
shows that the district court's decision was reasoned and thoughtful.
Accordingly, appellant has not demonstrated that the district court abused
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its discretion in sentencing him as a habitual criminal, and we are not
persuaded by his entreaty to alter our holding that non-violent offenses
may be considered in seeking habitual criminal adjudication. See NRS
207.010(2); O'Neill v. State, 123 Nev. 9, 12, 153 P.3d 38, 40 (2007)
(acknowledging the district court's broad discretion to dismiss a habitual
criminal allegation).
Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
Pideutiit
Pickering
J.
**jar j
Parraguirre
cc: Hon. Janet J. Berry, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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