Carmona v. State, s. 56463

• Docket Nº: 56464.
• Citation: 373 P.3d 901
• Case Date: January 13, 2011
• Court: Supreme Court of Nevada

373 P.3d 901 (Table)

Jonathan Joshua CARMONA, Appellant
v.
The STATE of Nevada, Respondent.

Jonathan Joshua Carmona, Appellant
v.
The State of Nevada, Respondent.

Nos. 56463
56464.

Supreme Court of Nevada.

Jan. 13, 2011.

Jonathan Joshua Carmona

Attorney General/Carson City

ORDER OF AFFIRMANCE

Docket No. 56463 is a proper person appeal from an order of the district court denying appellant's February 4, 2010, post-conviction petition for a writ of habeas corpus. Docket No. 56464 is a proper person appeal from an order of the district court denying appellant's June 30, 2010, motion for withdrawal of plea.¹ Second Judicial District Court, Washoe County; Robert H. Perry, Judge. We elect to consolidate these appeals for disposition. See NRAP 3(b).

Appellant's petition and motion each raised several claims of ineffective assistance of trial counsel as grounds to invalidate his guilty plea. To prove ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must demonstrate (a) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness and (b) resulting prejudice such that there is 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 v. Washington, 466 U.S. 668, 697 (1984).

Docket No. 56463

First, appellant claimed that counsel was ineffective for not advising him that he could be sentenced to more than the State's recommended minimum sentence for each count and for promising him that sentences for some counts would be run concurrent. Appellant failed to demonstrate prejudice. Appellant's claim is in part belied by the record as the State did not agree to a recommended minimum sentence but rather to a recommended maximum sentence for each count. See Hargrove v. State, 100 Nev. 498, 502–03, 686 P.2d 222, 225 (1984). Further, the State fulfilled its agreement and appellant was not sentenced to more than the State's recommended maximum sentence for each count. Moreover, appellant acknowledged in his guilty plea memorandum and during his plea canvass that he understood the potential sentences he could receive, that they could run concurrent or consecutive, that the sentence was up to the discretion of the district court, and that no one had made him any other promises in exchange for his plea. As the totality of the circumstances demonstrates that appellant's plea was entered into knowingly, voluntarily and intelligently, appellant failed to demonstrate a reasonable probability that, but for any promises counsel may have made, he would not have pleaded guilty but would have insisted on going to trial. See generally State v. Langarica, 107 Nev. 932, 822 P.2d 1110 (1991). We therefore conclude that the district court did not err in denying this claim.

Second, appellant claimed that counsel was ineffective for failing to provide him with his confession or communicate with him outside the courtroom setting. Appellant failed to demonstrate deficiency or prejudice. Appellant failed to specify what he was unable to communicate with counsel or why he needed a copy of his confession. Further, he failed to demonstrate that, had he had a copy of his confession or spoken with counsel in another setting, there was a reasonable probability that he would not have pleaded guilty but would have insisted on going to trial. We therefore...