Miller (Johnny) v. State

• Court: Nevada Supreme Court
• Decided: July 22, 2013
• Docket: 61782
• Status: Unpublished

Opinion

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). We review a district court's determination of whether a plea was knowing and voluntary for an abuse of discretion, Rubio v. State, 124 Nev. 1032, 1039, 194 P.3d 1224, 1229 (2008), and review claims of ineffective assistance of counsel de novo, giving deference to a district court's factual findings, Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). The district court conducted a limited evidentiary hearing on these claims and found credible counsel's testimony that she explained the guilty plea agreement to Miller, including what it meant to have the enhancement for the assistance of a child run consecutively to the grand larceny count.' The written guilty plea agreement stated that the enhancement would run consecutively and Miller acknowledged at the plea canvass that he read and signed the guilty plea agreement, reviewed the agreement with counsel, and understood his rights and responsibilities under the agreement. The record thus supports the district court's conclusions that counsel was not ineffective and that the totality of the circumstances indicated that the plea was knowing and voluntary. We conclude that the district court did not err or abuse its discretion. Miller also contends that the district court erred by denying his claim that counsel was ineffective for failing to speak with witnesses who would have stated that Miller entered the store to purchase a product

'The Hon. J. Charles Thompson, Senior Judge, conducted the evidentiary hearing and pronounced oral decision denying Miller's petition.

SUPREME COURT OF NEVADA 2 (0) 1947A and did purchase a product once in the store. The district court denied this claim because Miller failed to demonstrate a reasonable probability that had counsel spoken to the witnesses he would have insisted on going to trial rather than pleading guilty. We conclude that the district court did not err by denying this claim and by doing so without conducting an evidentiary hearing regarding it. See Kirksey, 112 Nev. at 988, 923 P.2d at 1107; Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Having considered Miller's contentions and concluded that they lack merit, we ORDER the judgment of the district court AFFIRMED.

J. Hardesty

Parraguirre

(---)

Cherry

cc: Hon. J. Charles Thompson, Senior Judge Hon. Kathleen E. Delaney, District Judge Benjamin C. Durham Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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