Vigil (Carlos) v. State

 plea agreement and at the plea canvass that he understood the possible
sentences that the district court could impose, that no one had promised
him a particular sentence, and that he read and understood the entire
plea agreement. Therefore, he failed to demonstrate that his plea was
unknowingly and involuntarily entered, and the district court did not err
in denying this claim.
Next, appellant claimed that he received ineffective assistance
of counsel. To prove ineffective assistance of counsel sufficient to
invalidate a judgment of conviction based on a guilty plea, a petitioner
must demonstrate that his 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,
petitioner would not 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).
First, appellant claimed that counsel was ineffective for failing
to challenge the district court's breach of the plea agreement. Appellant
failed to demonstrate that counsel's performance was deficient or that he
was prejudiced because, as discussed above, there was no breach of the
plea agreement, and counsel cannot be ineffective for failing to pursue
futile motions or objections. See Donovan v. State, 94 Nev. 671, 675, 584
P.2d 708, 711 (1978). Thus, the district court did not err in denying this
claim.
Second, appellant claimed that counsel was ineffective for
failing to investigate the elements of battery with the use of a deadly
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weapon and whether a taser may be classified as a deadly weapon.
Appellant failed to demonstrate that he was prejudiced, as he did not show
a reasonable probability that he would have proceeded to trial but for
counsel's alleged errors. Notably, appellant received a substantial benefit
by pleading guilty—in exchange for his guilty plea to one count of battery
with the use of a deadly weapon, the State dismissed one other count of
battery with the use of a deadly weapon as well as one count of unlawful
possession of an electronic stun device, and the State also agreed not to
seek habitual criminal treatment. Thus, the district court did not err in
denying this claim.
Third, appellant claimed that counsel was ineffective for
failing to file a notice of appeal to challenge the breach of his plea
agreement. Appellant failed to demonstrate that counsel's performance
was deficient or that he was prejudiced, as appellant did not allege that he
requested an appeal and he was informed in his plea agreement of the
limited right to appeal. See Davis v. State, 115 Nev. 17, 20, 974 P.2d 658,
660 (1999); Thomas v. State, 115 Nev. 148, 150, 979 P.2d 222, 223 (1999).
Thus, the district court did not err in denying this claim.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
pt 14-A J.
Douglas
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EFE7OEM=fEMENEEEiUMEINEES
cc: Hon. Linda Marie Bell, District Judge
Carlos Delphino Vigil
Attorney General/Carson City
• Clark County District Attorney
Eighth District Court Clerk
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