Villa (Theodore) v. State

• Court: Nevada Supreme Court
• Decided: October 16, 2014
• Docket: 65202
• Status: Unpublished

Opinion

First, Villa contends that the district court erred by denying

his claim that counsel was ineffective for failing to investigate before permitting him to plead guilty. Specifically, Villa contends that counsel

should have interviewed his children, who would have explained that the

victim, Villa's wife, exaggerated the extent of the incidents and suffered from bipolar disorder. The district court denied this claim as belied by the

record because evidence was presented that counsel interviewed Villa's eldest child and attempted to interview his younger children but was prevented from doing so by their mother. The district court also concluded

that Villa failed to demonstrate prejudice because he failed to establish

that, but for counsel's failure to interview the younger children, he would not have pleaded guilty and would have proceeded to trial. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We conclude that the

district court did not err by denying this claim.

Second, Villa contends that the district court erred by denying his claim that counsel was ineffective for failing to file "potentially meritorious pretrial motions." Specifically, Villa asserts that counsel

should have filed a motion requesting a psychological evaluation of the victim.' The district court concluded that filing the motion would have

'Villa also asserts that counsel should have filed motions "challenging the multiplicity of charges and/or the prosecutor's abuse of discretion during the charging decision." Villa fails to explain which charges were duplicitous or how the prosecutor abused her discretion, therefore, we decline to consider these contentions. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 7 (1987).

SUPREME COURT OF NEVADA 2 (0) 1947A me been futile as this court has never recognized the right of a defendant to

move for a psychological examination of a domestic violence victim, and

even assuming otherwise, the motion would not have been granted under

the circumstances. See Abbott v. State, 122 Nev. 715, 724, 138 P.3d 462,

468 (2006) (explaining the factors a court must consider in determining

whether a defendant has demonstrated a compelling need for a

psychological examination of a sex-offense victim); see also Donovan v.

State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (counsel is not ineffective

for declining to file futile motions). "Moreover, Villa failed to demonstrate

that a psychological examination would have revealed information which

would have caused him to reject the plea. See Molina, 120 Nev. at 192, 87

P.3d at 538. We conclude that the district court did not err by denying

this claim.

Third, Villa contends that the district court erred by denying

his claim that counsel and her supervisor were ineffective for "imply[ing]

to him that he would receive a lesser sentence than he actually received."

The district court denied this claim because it found Villa's testimony that

he was led to believe he would receive a more lenient sentence to be less

credible than counsels' testimony to the contrary. The district court also

concluded that this claim was contradicted by the guilty plea agreement

and canvass, wherein Villa affirmed that he had not been promised a

particular sentence and understood that sentencing was up to the court.

Finally, the district court concluded that Villa failed to demonstrate

prejudice because he had significantly reduced his exposure at sentencing

SUPREME COURT OF NEVADA 3 (0) 947A e by pleading guilty and failed to demonstrate he would have rather proceeded to trial. We conclude that the district court did not err by

denying this claim. Having considered Villa's contentions and concluded that they

lack merit, we ORDER the judgi lent of the district court AFFIRMED.

J. Pickering

—asi21 J. Parraguirre

J.

cc: Hon. Elizabeth Goff Gonzalez, District Judge Terrence M. Jackson Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A