Warden v. Kelly (Joseph)

 shown. Strickland v. Washington, 466 U.S. 668, 697 (1984). We give
deference to the district 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, 121 Nev. at 686, 120 P.3d at 1166.
Throughout April 2009, Kelly robbed several businesses using
what appeared to be a firearm. After his last robbery, an "airsoft" gun was
found in his possession. Pursuant to negotiations, Kelly pleaded guilty to
two counts of robbery with the use of a deadly weapon and one count of
attempted robbery with the use of a deadly weapon. Later, he filed a post-
conviction petition, wherein he alleged that the airsoft gun did not
constitute a deadly weapon pursuant to NRS 193.165(6) and therefore
counsel was ineffective for advising him to plead guilty. The district court
conducted an evidentiary hearing and Kelly presented no evidence
regarding the gun's capabilities; however, the State presented expert
testimony that the gun was capable of expelling a metallic projectile by
means of spring, gas, or air, and therefore met the definition of a deadly
weapon. See NRS 193.165(6)(c) (a deadly weapon includes the weapons
identified in NRS 202.265); NRS 202.265(5)(b) (listing a firearm as a
weapon, and defining firearm as "any device from which a metallic
projectile, including any ball bearing or pellet, may be expelled by means
of spring, gas, air or other force"). Kelly's former counsel testified that, at
first, he did not believe the gun constituted a deadly weapon, but after
researching its capabilities online, talking to the prosecutor, and reading
the relevant caselaw, he concluded otherwise.
Based upon the testimony presented at the evidentiary
hearing, the district court concluded that the airsoft gun constituted a
deadly weapon for the purposes of NRS 193.165(6). However, the district
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court concluded that counsel was deficient because he did not adequately
investigate the gun's capabilities before advising Kelly to plead guilty.
The district court also concluded that Kelly was prejudiced because "he
received consecutive sentences that he otherwise would not have received
if the investigation had determined that the airsoft gun did not meet
statutory requirements."
We conclude that the district court erred. Even assuming that
counsel was deficient and should have undertaken additional investigation
before advising Kelly to plead guilty, Kelly failed to demonstrate that
further investigation would have revealed information that would have
caused him to reject the plea. See Molina v. State, 120 Nev. 185, 192, 87
P.3d 533, 538 (2004). In fact, the record demonstrates that any further
investigation would only have confirmed that the gun constituted a deadly
weapon, as the district court itself concluded. The district court applied an
incorrect test for prejudice because the relevant inquiry was not whether
counsel's deficiency could have altered the possible sentence. Rather, the
appropriate test was whether, absent counsel's deficiency, there was a
reasonable probability that Kelly would have rejected the plea and
proceeded to trial. See Hill, 474 U.S. at 58-59. Because Kelly pleaded
guilty based upon counsel's advice that the airsoft gun constituted a
deadly weapon, and additional investigation would have confirmed that
the gun constituted a deadly weapon, Kelly failed to demonstrate that he
would have rejected the plea. We conclude that the district court erred by
concluding that Kelly demonstrated prejudice. And to the extent that the
district court's order can be read to conclude that counsel's performance
resulted in an unknowing plea, we conclude that the district court abused
its discretion. See Rubio v. State, 124 Nev. 1032, 1038, 194 P.3d 1224,
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1228 (2008) ("A guilty plea is knowing and voluntary if the defendant has
a full understanding of both the nature of the charges and the direct
consequences arising from a plea of guilty." (internal quotation marks and
emphasis omitted)). Accordingly, we 2
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.
Hardesty
J.
Douglas
C/VUT114•1 J
Cherry
cc: Hon. Patrick Flanagan, District Judge
Attorney General/Carson City
Washoe County District Attorney
Jeffrey S. Blanck
Washoe District Court Clerk
2 Because we conclude that the district court erred by granting
Kelly's petition in part, we need not consider the remainder of the State's
assertions. The fast track response fails to comply with NRAP 3C(h)(1)
and NRAP 32(a)(4) because it is not double-spaced. Counsel for Kelly is
cautioned that the failure to comply with this court's briefing
requirements in the future may result in the imposition of sanctions. See
NRAP 3C (n).
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