Anderson (Anthony) v. State ( 2013 )

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).
First, appellant claimed that his counsel did not obtain all of
the files regarding appellant's case prior to advising appellant to enter a
guilty plea or prior to the sentencing hearing. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced because he did not identify what information counsel did not
possess or how that information would have affected his decision to plead
guilty or altered the sentencing hearing. Bare claims are insufficient to
demonstrate a petitioner is entitled to relief. 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.
Second, appellant claimed that his counsel coerced his plea by
telling him that he would upset the judge if he did not plead guilty.
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. Therefore, the
district court did not err in denying this claim.
Third, appellant claimed that his counsel promised him he
would receive probation if he pleaded guilty. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant acknowledged in the guilty plea agreement that he
had not been promised a particular sentence. Moreover, the district court
advised appellant at the plea canvass that the court would decide the
appropriate sentence. Appellant failed to demonstrate he would not have
pleaded guilty and would have insisted on going to trial had counsel
explained the court's role in imposing sentence in more detail. Therefore,
the district court did not err in denying this claim.
Fourth, appellant claimed that his counsel did not inform him
in a timely manner that counsel was closing his law office. Appellant
failed to demonstrate he was prejudiced. Appellant failed to demonstrate
a reasonable probability that he would not have pleaded guilty and would
have insisted on going to trial had counsel informed him of the closing of
the law office at an earlier time. Therefore the district court did not err in
denying this claim.
Fifth, appellant claimed that his counsel told him he would
file a notice of appeal and work on the direct appeal, yet failed to do so. 2
We conclude that the district court erred in denying the petition without
conducting an evidentiary hearing on the appeal-deprivation claim
because appellant's claim was not belied by the record and if true would
have entitled him to relief. See Hargrove, 100 Nev. at 502-03, 686 P.2d at
225; see also Toston v. State, 127 Nev. „ 267 P.3d 795, 800 (2011).
Therefore, we reverse the district court's denial of this claim and remand
for an evidentiary hearing on the claim. 3
2We note that appellant filed an untimely proper person notice of
appeal. This court dismissed the appeal for lack of jurisdiction. Anderson
v. State, 60723 (Order Dismissing Appeal, June 22, 2012).
3 1f
the district court determines that appellant was deprived of a
direct appeal, the district court should provide the remedy set forth in
NRAP 4(c).
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Next, appellant claimed his plea was not knowing and
voluntary because he was not aware he could be adjudicated as a habitual
criminal. Appellant failed to meet his burden to demonstrate that his plea
was invalid. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368
(1986); Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994).
Appellant's claim was belied by the record because he was informed in the
guilty plea agreement, which he signed and acknowledged having read at
the plea canvass, that he faced the possibility of adjudication as a habitual
criminal. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225 (1984).
Moreover, appellant was not adjudicated as a habitual criminal.
Therefore, the district court did not err in denying this claim.
Next, appellant claimed that his sentence is cruel and unusual
punishment, plea bargains that do not bind the district court are
improper, the district court improperly considered out-of-court statements
made by the victim at the sentencing hearing, appellant's son told others
that his mother coerced him into raising the allegations against appellant
and he did not commit the crimes, the district court was biased, the State
did not prove his prior convictions were proper for use in the
enhancement, his prior convictions were stale and non-violent, the
witnesses against him were not credible, he was sentenced without the
opportunity to testify or be found guilty by a jury, he should have been
convicted of a gross misdemeanor rather than a felony, and the
presentence investigation report contained misstatements from the court-
appointed psychologist. These claims were not based on an allegation that
appellant's plea was involuntarily or unknowingly entered or that his plea
was entered without effective assistance of counsel, and therefore, were
not permissible in a post-conviction petition for a writ of habeas corpus
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MENDI
stemming from a guilty plea. See NRS 34.810(1)(a). Accordingly, the
district court did not err in denying these claims. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
Douglas
cc: Hon. Kathleen E. Delaney, District Judge
Anthony Anderson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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