Penny (Wil) v. State

 the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
Appellant first argues that the district court erred by
dismissing his claim that counsel was ineffective for not objecting to the
admission of a victim impact letter, which referenced charges that had
been dismissed pursuant to the plea negotiations, and the prosecutor's
argument concerning that evidence. Counsel testified at the evidentiary
hearing that she did not object to the victim impact evidence because she
believed the letter was admissible under the plea agreement, as the
prosecution was allowed to argue about the dismissed charges. While we
cautioned the State against the use of that evidence on direct appeal, we
cannot say that appellant suffered prejudice even assuming counsel
should have objected to the evidence. The record shows that the
sentencing court focused on the nature of the offense—robbery with the
use of a firearm—appellant's alcohol and drug problem, and his criminal
history, which included at least two felony convictions and absconding
from parole. The district court's factual findings are supported by
substantial evidence, and we conclude that appellant failed to
demonstrate that the district court erred by dismissing this claim.
Appellant next argues that the district court erred by
dismissing his claim that counsel was ineffective for not presenting
mitigation evidence including his military records showing that he was
seriously wounded, resulting in post-traumatic stress disorder (PTSD), a
letter from his mother, evidence showing that he had been continuously
employed, and a psychological evaluation. Counsel advised the sentencing
court that appellant served two tours in the military and he suffered
injuries from an explosion during the Gulf War; he became• addicted to
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alcohol; his father's death significantly affected him; and that he is in
counseling. Also, the sentencing court was aware of the presentence
investigation report (PSI), which noted appellant's PTSD and bipolar
diagnoses. Further, counsel testified that appellant insisted on proceeding
to sentencing despite not having received his military records.
Additionally, counsel testified that, with appellant's consent, she did not
present appellant's mother's letter because it was "rambling" and the PSI
explained his childhood. Counsel also explained that appellant did not
inform her that he was continuously employed and that in fact he had
"quite a few periods of unemployment." Finally, counsel testified that she
did not present the psychological evaluation because of the many
discrepancies between what appellant told the mental health provider,
what appellant had told her, and what she later learned from appellant's
military records. Although appellant disputed aspects of counsel's
testimony at the evidentiary hearing, matters of credibility are left to the
district court. The district court's factual findings are supported by
substantial evidence, and we conclude that appellant failed to
demonstrate that the district court erred by dismissing this claim. 1
'Appellant argues that the district court erred by dismissing his
claim that appellate counsel was ineffective for not challenging his
sentence as excessive under the Eighth Amendment. However, he did not
raise this claim in his post-conviction petition below and therefore we will
not consider it. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173
(1991) (observing that this court need not consider arguments raised on
appeal that were not presented to the district court in the first instance),
overruled on other grounds by Means v. State, 120 Nev. 1001, 103 P.3d 25(2004).
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Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of the district court AFFIRMED. 2
Pickering
ek.x.1 J.
Parraguriirre
J.
cc: Hon. Scott N. Freeman, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 Despite counsel's verification that the fast track statement complies
with applicable formatting requirements, the fast track statement does
not comply with NRAP 32(a)(4) because it does not have 1-inch margins on
all four sides. See NRAP 3C(h)(1). We caution counsel that future failure
to comply with Nevada Rules of Appellate Procedure when filing briefs
with this court may result in the imposition of sanctions. See NRAP
3C(n); NRAP 28.2(b).
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