Pride (Arthur) v. State ( 2014 )

 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). Both components of the
inquiry must be shown. Strickland, 466 U.S. at 697.
First, appellant claimed that his counsel was ineffective for
failing to argue that his positive drug test should not have been considered
due to failure to follow proper chain of custody protocols. Appellant failed
to demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant's probation officer testified that he tested
appellant's urine, that it tested positive for marijuana, and that he showed
appellant the sample and the test results. The officer testified that he
then sent the sample to a laboratory for further testing. The officer
testified that the laboratory test also showed a positive test for marijuana.
Under these circumstances, appellant failed to demonstrate that
objectively reasonable counsel would have asserted there was an improper
break in the chain of custody. See Burns v. Sheriff Clark Cnty., 92 Nev.
533, 534-35, 554 P.2d 257, 258 (1976); see also Sorce u. State, 88 Nev. 350,
352-53, 497 P.2d 902, 903 (1972) (discussing that doubt arising from
evidence of tampering resulting from a break in the chain of custody "goes
to the weight of the evidence" and not to its admissibility). Appellant
failed to demonstrate a reasonable probability of a different outcome had
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counsel raised this argument as there was sufficient evidence presented
that appellant violated the terms of his probation. See Lewis v. State, 90
Nev. 436, 438, 529 P.2d 796, 797 (1974). Therefore, the district court did
not err in denying this claim.
Second, appellant claimed that his counsel was ineffective for
failing to seek an independent test of his urine sample. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Two tests were conducted of appellant's sample and appellant
failed to demonstrate that objectively reasonable counsel would have
sought a third test. Appellant failed to demonstrate a reasonable
probability of a different outcome at the revocation hearing had additional
testing been sought. Therefore, the district court did not err in denying
this claim.
Third, appellant claimed that his counsel was ineffective for
failing to argue that appellant had made payments for his fees. Appellant
failed to demonstrate either deficiency or prejudice for this claim. The
probation officer testified that appellant had limited resources, but that
appellant had made modest payments toward the fees. The district court
also acknowledged that appellant had made modest payments, but noted
that appellant had decided to purchase marijuana rather than increase his
payments. Appellant failed to demonstrate that objectively reasonable
counsel would have raised further issues in this regard or that there is a
reasonable probability of a different outcome had counsel raised
arguments about the payments. Therefore, the district court did not err in
denying this claim.
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Fourth, appellant claimed that his counsel was ineffective for
failing to argue that appellant did not fail to submit to drug testing.
Appellant failed to demonstrate that his counsel's performance was
deficient or that he was prejudiced. The probation officer testified that
appellant could not give a urine sample for approximately two hours, then
left to attend a medical procedure. The officer testified that this was the
first instance that appellant had not been able to give a urine sample.
Appellant was tested two days later and the test was positive for
marijuana. Under these circumstances, appellant failed to demonstrate
that objectively reasonable counsel would have raised arguments about
appellant's failure to submit to testing or that there is a reasonable
probability of a different outcome had counsel raised such arguments.
Therefore, the district court did not err in denying this claim.
Fifth, appellant claimed that his counsel was ineffective
because she was not prepared for the revocation hearing and did not have
the case file during the hearing. Appellant failed to demonstrate that
counsel's performance was deficient or that he was prejudiced. At the
hearing, counsel stated that she had reviewed the discovery from the State
and that she was ready to proceed with the revocation hearing Appellant
failed to demonstrate a reasonable probability of a different outcome had
counsel performed additional actions to prepare for the hearing.
Therefore, the district court did not err in denying this claim.
Appellant also appealed the district court order denying his
motion for reconsideration. Because no statute or court rule permits an
appeal from an order denying a motion for reconsideration, we lack
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jurisdiction to consider that portion of appellant's appeal. See Phelps v.
State, 111 Nev. 1021, 1022-23, 900 P.2d 344, 344-45 (1995); Castillo a
State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990). Accordingly, we
ORDER the judgment of the district court AFFIRMED and
DISMISS the appeal in part.
Pitlebt
Pickering
(AA.
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Th
ParrCirre
Saitta
cc: Hon. Douglas W. Herndon, District Judge
Arthur Pride
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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