Irive (Ricardo) v. State

• Court: Nevada Supreme Court
• Decided: July 21, 2015
• Docket: 65732
• Status: Unpublished

Opinion

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). Irive argues that trial counsel was ineffective for failing to

inquire about and communicate to him the expiration date of a plea offer,

which prevented him from accepting the offer before it was withdrawn. At

the evidentiary hearing, trial counsel testified that she informed Irive of

the plea offer but advised him to give her time to investigate whether the

plea offer would be beneficial before he considered accepting the offer.

Trial counsel further testified that the prosecutor never explicitly provided

an expiration date for the plea and that her conversations with the

prosecutor leftS her with the impression that the plea would be available

until trial. The district court found that trial counsel's advice to Irive,

decision to investigate, and mistaken belief as to when the plea offer

would expire were reasonable in light of counsel's ongoing negotiations

and communications with the prosecutor. We conclude that this finding

was not clearly erroneous and that substantial evidence supports the

district court's decision that trial counsel's performance was reasonable.'

'hive asserts that trial counsel failed to conduct the investigation and evaluate the plea offer in a timely manner. To the extent Irive attempts to argue this as a basis for ineffective assistance of counsel, we decline to consider this argument, as he failed to raise it in his post- conviction petition or supplement below. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means, 120 Nev. at 1012-13, 103 P.3d at 33.

SUPREME COURT OF NEVADA 2 (0) I947A def#1> Further, we conclude that substantial evidence supports the

district court's finding that Irive failed to present any evidence of a specific

offer by the State that he would have accepted and thus did not

demonstrate that he would have pleaded guilty but for the alleged errors

by trial counsel. At the evidentiary hearing, trial counsel and Irive offered

conflicting testimony about the specific terms of the plea offer and whether

Irive would have accepted the offer. Trial counsel testified that Irive

initially rejected the plea offer but then decided to accept it shortly before

trial, by which time the offer had already been withdrawn by the State.

She also stated that she was unsure whether the plea offer had always

been contingent on both Irive and his codefendant pleading guilty in two

separate cases, but that it was definitely contingent "right before trial . .

and that's why we went to trial." Although Irive testified that he would

have accepted the offer but for counsel's advice to wait until she

investigated it, Irive's testimony indicated that he was unaware of the

terms of the plea offer and had never expressly conveyed an interest to

counsel in either accepting or rejecting the plea offer. 2 In light of this

conflicting evidence, hive fails to demonstrate a reasonable probability

2 Irivenow concedes that he was aware of the terms of the plea offer prior to trial and that his testimony to the contrary was due to a faulty memory. By making this assertion on appeal, Irive abandons his allegations in his post-conviction petition that trial counsel failed to convey the plea offer to him until after it expired and, alternatively, that trial counsel failed to convey any specific details about the plea offer before it expired.

SUPREME COURT OF NEVADA 3 (0) 1947A e that, but for counsel's alleged deficient performance, he would have

accepted the plea offer before the State withdrew it. See Lafler v. Cooper,

566 U.S. , 132 S. Ct. 1376, 1385 (2012). Accordingly, we conclude

that the district court did not err in denying this claim.

Next, Irive contends that the district court erred in denying

his claim that appellate counsel was ineffective for failing to provide a

sufficient record on appeal. 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 a reasonable

probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923

P.2d 1102, 1114 (1996).

Irive argues that appellate counsel's failure to provide this

court with an audio-visual recording of the sentencing hearing precluded

this court from considering on direct appeal whether the trial court erred

in imposing a harsher sentence based on Irive's failure to take

responsibility for his actions and his exercise of his constitutional right to

trial. Irive fails to demonstrate a reasonable probability that, had

appellate counsel provided this recording on direct appeal, his sentence

would have been vacated. The audio-visual recording was played at the

evidentiary hearing, and the record indicates that the trial court may have

stated, "he didn't," after trial counsel argued that Irive had taken

responsibility for his actions. At no point did the trial court state that it

based its sentence on Irive's failure to take responsibility or his decision to

SUPREME COURT OF NEVADA 4 (0). 1947A 4e0. go to trial and testify in his own defense; rather, the trial court stated that

it was imposing a harsher sentence because of Irive's criminal conduct and

history. See Brake v. State, 113 Nev. 579, 584-85, 939 P.2d 1029, 1033

(1997). Therefore, we conclude that the district court did not err in

denying this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED. 3

J. Saitta

Gibbons

J.

cc: Hon. Elissa F. Cadish, District Judge Law Office of Kristina Wildeveld Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

3 Irive has submitted a pro se supplemental brief and a pro se motion for leave to file the supplemental brief. Because Irive is represented by counsel in this appeal, we decline to permit him to file pro se documents. See NRAP 46(b). Accordingly, the clerk of this court shall return, unfiled, the pro se motion and supplemental brief received on March 3, 2015.

SUPREME COURT OF NEVADA 5 (0) I947A