Vail (Thomas) v. State

• Court: Nevada Supreme Court
• Decided: May 18, 2015
• Docket: 66720
• Status: Unpublished

Opinion

guilty plea, a petitioner must demonstrate a reasonable probability that,

but for counsel's errors, petitioner would not 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).

Both components of the inquiry must be shown, Strickland, 466 U.S. at

697, and the petitioner must demonstrate the underlying facts by a

preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103

P.3d 25, 33 (2004). We give deference to the district court's factual

findings if supported by substantial 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).

First, appellant claimed that his trial counsel failed to submit

as evidence a consultant fee paid to the victim's boyfriend and the cost of

insurance, which he argued would have made a difference in the outcome

at the preliminary hearing. Appellant failed to demonstrate that his trial

counsel's performance was deficient or that he was prejudiced. There was

slight or marginal evidence presented at the preliminary hearing that a

crime was committed and that appellant committed the crime. See Sheriff

v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980). The evidence

appellant suggested should have been presented would not have had a

reasonable probability of altering the outcome of that proceeding.

Second, appellant claimed that his trial counsel failed to

challenge the restitution amount and never shared with appellant any

information about restitution as provided by the prosecutor. Appellant

SUPREME COURT OF NEVADA 2 (0) 1947A e failed to demonstrate that his trial counsel's performance was deficient or

that he was prejudiced. The restitution amounts were set forth in the

guilty plea agreement and discussed during the plea canvass. Appellant

affirmatively acknowledged the accuracy of the negotiations as set forth in

the plea canvass. Appellant failed to demonstrate that there was a

reasonable probability of a different outcome had his trial counsel

challenged the restitution amounts or communicated further with

appellant.

Third, appellant claimed that his trial counsel was ineffective

because he lacked training in the insurance industry. Appellant failed to

demonstrate that his trial counsel's performance was deficient or that he

was prejudiced. Appellant was charged with theft and uttering a forged

instrument. He failed to demonstrate that his counsel's training was

insufficient regarding these charges or how further training in the

insurance industry would have had a reasonable likelihood of altering the

outcome of the proceedings.

Next, appellant claimed that the prosecutor failed to document

and support the restitution figures, he was innocent of the crime of theft,

the prosecutor withheld evidence regarding the cost of the insurance and

the fact that the victim's claim had been twice turned down, the victim

withheld valuable information, the prosecutor failed to disclose favorable

evidence, the prosecutor presented false evidence, and his sentence was

based on a mistake of fact that worked to his extreme detriment. These

claims are outside the scope of claims permissible in a post-conviction

SUPREME COURT OF NEVADA 3 (0) 1947A 9009119 petition for a writ of habeas corpus challenging the validity of a judgment

of conviction based upon a no-contest plea. See NRS 34.810(1)(a). Therefore, we

ORDER the judgment of the district court AFFIRMED.

cc: Eighth Judicial District Court Dept. 20 Thomas Vail Attorney General/Carson City Attorney General/Las Vegas Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A