Kevari (Scott) v. Warden ( 2013 )

 First, appellant argues that trial counsel was ineffective for
failing to consult with appellant before sentencing and inform him that
the State had filed a notice of intent to seek habitual criminal sentencing.
Appellant failed to demonstrate prejudice. Appellant asserts that, had
counsel informed him earlier that the State had filed notice to have him
adjudicated a habitual criminal, appellant might have filed a presentence
motion to withdraw his guilty plea. However, appellant was informed in
the plea agreement and during the plea canvass that the State might seek
habitual criminal adjudication. Thus, he has failed to demonstrate that
the fact that the State actually filed notice to seek habitual criminal
adjudication would have constituted a substantial reason to withdraw a
guilty plea. See Crawford v. State, 117 Nev. 718, 721, 30 P.3d 1123, 1125
(2001) ("District courts may grant a motion to withdraw a guilty plea prior
to sentencing for any substantial, fair, and just reason."). Appellant also
asserts that he would have reviewed his prior convictions to determine
whether they were valid and he would have consulted his counsel about
evidence to be introduced at sentencing. Appellant does not identify any
evidence that counsel should have, but did not, produce at sentencing, nor
has appellant alleged that any of his prior felony convictions were invalid.
See Hargrove, 100 Nev. at 502, 686 P.2d at 225 (noting that "bare" or
"naked" claims are insufficient to grant relief). Thus, we conclude that the
district court did not err in denying these claims.
Second, appellant argues that trial counsel was ineffective for
failing to explain to him that he could receive a life sentence if he pleaded
guilty. Appellant failed to demonstrate prejudice. Appellant correctly
points out that the plea agreement did not inform him of the maximum
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sentences that he could receive if he were found to be a habitual criminal.'
However, during the plea canvass, the State informed appellant that, if he
were to be sentenced as a habitual criminal, the district court could
impose a sentence of 10 to 25 years in prison, a sentence of 10 years to life,
or a sentence of life without parole. Although the State agreed to
recommend a sentence of no more than 10 to 25 years at sentencing,
appellant was specifically informed in both the plea agreement and during
the plea canvass that the district court was not bound by the parties'
negotiations and had sole discretion as to which sentence to impose.
Appellant affirmed his understanding of this and affirmatively
acknowledged that his decision to enter a guilty plea was not motivated by
any promises not contained in the written guilty plea agreement. Thus,
we conclude that the district court did not err in finding that appellant
knew when he entered his guilty plea that he could be sentenced to life
without parole. See Hudson v. Warden, 117 Nev. 387, 396, 22 P.3d 1154,
1160 (2001) (applying a "totality of the circumstances" test to determine
whether defendant understood the consequences of the plea); see also
Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975) (holding that
defendant's mere subjective belief regarding sentencing was insufficient to
invalidate his decision to enter a guilty plea). Accordingly, we conclude
that the district court did not err in denying this claim.
Third, appellant argues that trial counsel was ineffective for
failing to provide mitigating evidence at sentencing. Specifically,
appellant contends that counsel should have presented evidence
'With regard to the habitual-criminal sentencing possibilities, the
plea agreement provided only that "the State may pursue a habitual
criminal sentencing enhancement under NRS 207.010, however, the State
will cap any recommendation at 10 to 25 under that enhancement."
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concerning appellant's drug addiction and character. Appellant's claim is
belied by the record, as counsel did present mitigating evidence about his
drug addiction and character at sentencing. Appellant fails to identify any
other specific evidence that counsel should have presented. See Hargrove,
100 Nev. at 502, 686 P.2d at 225. Thus, we conclude that the district court
did not err in denying this claim.
Finally, appellant argues that the district court erred in
summarily dismissing all of his claims from his proper person petition.
Other than asserting that his petition contained numerous meritorious
claims, appellant does not present any argument on appeal demonstrating
that the district court erred in this regard. See Maresca v. State, 103 Nev.
669, 673, 748 P.2d 3, 6 (1987) ("It is appellant's responsibility to present
relevant authority and cogent argument."). Because appellant failed to
demonstrate that he was entitled to relief, we conclude that the district
court did not err in denying his claims without holding an evidentiary
hearing. See Hargrove, 100 Nev. at 503, 686 P.2d at 225.
For the reasons stated above, we
ORDER the judgment of tbe_district court AFFIRMED.
Gibbons
J.
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cc: Hon. Lidia Stiglich, District Judge
Edward T. Reed
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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