Rosales (David) v. State

 evidence and not clearly erroneous but review the court's application of
the law to those facts de novo. Lacier v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
At the evidentiary hearing on the petition, counsel Violet
Radosta testified that appellant was upset that the district court
sentenced him to 6 to 20 years in prison instead of the stipulated sentence
of 6 to 15 years. She did not recall if appellant wanted her to file an
appeal but she advised him that the district court was within its discretion
to sentence him to 6 to 20 years in prison and consequently there were no
grounds to appeal. Radosta did not recall if appellant requested an appeal
after she advised him that there were no grounds to appeal the sentence.
Later, however, Radosta testified that appellant "was telling me that he
wanted me to appeal the fact that the Judge did not follow the 6 to 15."
She explained that she "cannot file a frivolous appeal, and that issue in
[her] opinion was a frivolous appeal." Radosta made other statements
indicating that appellant wanted to appeal his sentence. Appellant
testified that he told Radosta that he wanted to appeal his case.
"[T]rial counsel has a constitutional duty to file a direct appeal
in two circumstances: when requested to do so and when the defendant
expresses dissatisfaction with his conviction, and that the failure to do so
in those circumstances is deficient for purposes of proving ineffective
assistance of counsel." Toston, 127 Nev. at , 267 P.3d at 800. While
Radosta's testimony concerning whether appellant requested an appeal is
inconsistent, she indicated three times that appellant wanted an appeal
and it appears that counsel misunderstood her obligation to file an appeal
when requested, irrespective of the merits of an appeal. Additionally,
appellant sufficiently expressed his dissatisfaction with his sentence to
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trigger counsel's obligation to file an appeal from the judgment of
conviction. See id. at , 267 P.3d at 801 (concluding that whether
defendant's dissatisfaction with his sentence obligates counsel to file
appeal is determined by totality of circumstances and among factors to
consider in this making this determination are "whether the defendant
received the sentence he bargained for as part of the plea"). We conclude
that the district court's determination that appellant was not deprived of
his right to appeal due to ineffective assistance of counsel is not supported
by substantial evidence and that the district court erred by denying
appellant's appeal-deprivation claim. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court to provide appellant the remedy
set forth in NRAP 4(c). 1
Pickering
J.
Parra
J.
Saitta
'Appellant also challenges the district court's denial of his
presentence motion to withdraw his guilty plea. Because this claim is
appropriate for direct appeal from the judgment of conviction, we decline
to consider it. See NRS 177.045; Hargrove v. State, 100 Nev. 498, 502 n.3,
686 P.2d 222, 225 n.3 (1984).
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cc: Hon. Valerie Adair, District Judge
The Kice Law Group, LLC
Attorney GeneraVCarson City
Clark County District Attorney
Eighth District Court Clerk
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