Fields (John) v. Warden ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN VERNON FIELDS, No. 67447
Appellant,
vs.
E.K. MCDANIEL, WARDEN, FILED
Respondent. FEB 1 0 2016
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant
John Fields' postconviction petition for a writ of habeas corpus. Fourth
Judicial District Court, Elko County; Alvin R. Kacin, Judge.
Fields contends that the district court erred by denying his
claim that appellate counsel was ineffective for failing to transmit certain
exhibits to this court on appeal from his judgment of conviction. To prove
ineffective assistance of appellate 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 the omitted
issue would have had a reasonable probability of success on appeal.
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). 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).
On appeal from his judgment of conviction, Fields challenged
the trial court's decision to admit evidence of a prior bad act. This court
noted that Fields did not transmit certain related exhibits, which limited
our review, but that the record was sufficient to review the claim. Fields
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v. State, 125 Nev. 785, 790, 220 P.3d 709, 712 (2009). This court evaluated
the claim and concluded that the prior bad act was admissible as evidence
of motive, intent, knowledge, and identity, and that the risk of unfair
prejudice did not substantially outweigh its probative value. Id. at 794,
220 P.3d at 715. In his postconviction petition, Fields asserted that this
court would have reached a different conclusion had appellate counsel
transmitted the referenced exhibits. The district court conducted an
evidentiary hearing, where appellate counsel testified that he did not
include some exhibits because he did not believe they were necessary and
did not include another exhibit because he believed it would have been
more harmful than helpful. The district court denied the petition.
Fields fails to demonstrate that the district court erred. Fields
does not explain how counsel's decisions regarding which exhibits to
include in the record on appeal were objectively unreasonable. See Lara v.
State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (explaining that strategic
decisions are virtually unchallengeable). Moreover, Fields does not
explain how the outcome of his claim would have been different had
counsel transmitted the exhibits, and we reject his suggestion that he was
prejudiced per se because his wife included the exhibits in her appeal and
obtained relief on a similar issue. 1 We note that the joint appendix
submitted in this case does not include the entire trial transcripts.
Therefore, even assuming that appellate counsel was deficient, Fields fails
to demonstrate that the result of his appeal would have been different.
See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The
1 Fields was charged with conspiracy to commit murder whereas his
wife was not.
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burden to make a proper appellate record rests on appellant ") For these
reasons, we
ORDER the judgment of the district court AFFIRMED.
dAA , CA.
Parraguirre
J.
Douglas
cc: Hon. Alvin R. Kacin, District Judge
Lockie & Macfarlan, Ltd.
Attorney GenerallCarson City
Elko County District Attorney
Elko County Clerk
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