Abad (Edgar) v. State ( 2013 )

 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 v. Washington, 466 U.S. 668, 697 (1984). We give
deference to the court's factual findings if supported by substantial
evidence and not clearly erroneous but review the court's application of
the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
The district court conducted an evidentiary hearing at which
Abad's plea counsel testified that he discussed the potential immigration
consequences with Abad before he entered the plea and specifically
advised him that a gross misdemeanor could have adverse immigration
consequences. This testimony was supported by the record, and the
district court found that this testimony was credible and the plea was very
favorable to Abad. The district court held that counsel was not ineffective,
the plea was freely and voluntarily entered, and there was no manifest
injustice warranting withdrawal of the plea, see NRS 176.165.
The district court's findings are supported by substantial
evidence and are not clearly wrong. Abad did not demonstrate that his
counsel affirmatively misadvised him regarding the deportation
consequences of entering his plea. See Rubio v. State, 124 Nev. 1032,
1043, 194 P.3d 1224, 1232 (2008). Further, even assuming counsel was
deficient for not informing him that pleading guilty to a gross
misdemeanor could subject him to automatic deportation, see Padilla v.
Kentucky, 559 U.S. „ 130 S. Ct. 1473, 1483 (2010), Abad failed to
demonstrate prejudice because he pleaded guilty to a "wobbler," the State
was free to argue for the felony conviction at sentencing, and Abad knew
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that imposition of sentence was at the discretion of the district court and if
he was convicted of the felony he would be subject to automatic
deportation. We conclude that the district court correctly assessed the
validity of Abad's plea, Abad failed to demonstrate manifest injustice
warranting withdrawal of his plea, and the district court did not abuse its
discretion by denying Abad's motion to withdraw the plea. Therefore, we
ORDER the judgment of the district court AFFIRMED.
j.
Hardesty
Ok-.- 6'r------Th
-
Parraguirre Cherry
cc: Hon. Stefany Miley, District Judge
Don P. Chairez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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