Jimenez (Francisco) v. State

• Court: Nevada Supreme Court
• Decided: October 16, 2014
• Docket: 65097
• Status: Unpublished

Opinion

clearly erroneous but 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).

The record reveals that Jimenez and several coconspirators

entered two convenience stores brandishing firearms, forced the customers

into the back, ordered them to lie down, and restrained them using "zip-

ties." The group robbed the stores and shot at an employee as they fled.

Based upon these acts, Jimenez was charged with one count of conspiracy

to commit robbery, two counts of burglary while in possession of a firearm,

three counts of robbery with the use of a deadly weapon, one count of first-

degree kidnapping, eleven counts of first-degree kidnapping with the use

of a deadly weapon, and one count of attempted murder with the use of a

deadly weapon. In exchange for the State's agreement to dismiss a

majority of the counts and deadly weapon enhancements, Jimenez agreed

to plead guilty to one count of conspiracy to commit robbery, two counts of

robbery with the use of a deadly weapon, two counts of first-degree

kidnapping, and one count of attempted murder. The parties stipulated

that only two of the counts would run consecutively; moreover, Jimenez

retained the right to argue for an eight-year minimum term and the State

retained the right to argue for a twenty-five-year maximum term.

The district court conducted an evidentiary hearing, wherein

Jimenez testified that counsel discussed the case with him and informed

him of possible defenses to the kidnapping charges, but advised him to SUPREME COURT OF NEVADA 2 (0) 1947A .(Jatr plead guilty to reduce his exposure at sentencing. After considering the

record and the testimony presented at the evidentiary hearing, the district

court concluded that counsel was not ineffective. We agree. Jimenez fails

to demonstrate that there were insufficient facts to support the

kidnapping charges, and even assuming otherwise, he fails to demonstrate

that it was unreasonable •for counsel to advise him to plead guilty

pursuant to the agreement rather than proceed to trial against the

original charges. See Hill, 474 U.S. at 58-59. We conclude that the

district court did not err by denying this claim.

Second, Jimenez contends that counsel was ineffective for

failing to determine whether any witnesses were available to testify

against him, which rendered his plea invalid. The district court denied

Jimenez's ineffective-assistance claim on the ground that Jimenez failed to

specify what information an investigation would have revealed, see Molina

v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004); Jimenez also failed to

demonstrate prejudice because testimony was presented at the evidentiary

hearing that there was surveillance footage of the incidents and Jimenez

confessed. In addition, whether the witnesses were available to testify has

no bearing on the validity of the plea. See Rubio v. State, 124 Nev. 1032,

1038, 194 P.3d 1224, 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

SUPREME COURT OF NEVADA 3 (0) 1947A 4213o. quotation marks and emphasis omitted)). We conclude that the district

court did not err by denying these claims.

Having considered Jimenez's contentions and concluded that

they lack merit, we

ORDER the judgment of the district court AFFIRMED.'

Pickering

J. J. Parraguirr e Saitta

cc: Hon. Douglas Smith, District Judge Mueller Hinds & Associates Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

'A footnote in Jimenez's fast track statement contains text which is not the same size and font as the body of the brief. See NRAP 3C(h)(1) (requiring fast track filings to comply with the formatting requirements of NRAP 32(a)(4)-(6)); NRAP 32(a)(5). We caution counsel that future failure to comply with the Nevada Rules of Appellate Procedure may result in the imposition of sanctions. See NRAP 3C(n).

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