Grondin v. State

• Citation: 97 Nev. 454,634 P.2d 456
• Decision Date: 16 October 1981
• Docket Number: No. 12463,12463
• Parties: Barry Edward GRONDIN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 456

634 P.2d 456

97 Nev. 454

Barry Edward GRONDIN, Appellant, v. The STATE of Nevada, Respondent.

No. 12463.

Supreme Court of Nevada.

Oct. 16, 1981.

Norman Y. Herring, State Public Defender, Michael K. Powell, Sp. Deputy Public Defender, Carson City, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., N. Tufteland, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant, Barry Edward Grondin, was convicted by a jury of second degree murder on November 26, 1976. The judgment of conviction was affirmed by this court on January 9, 1978. Grondin v. State, 94 Nev. 5, 573 P.2d 205 (1978).

Appellant filed a petition for post-conviction relief in district court on June 15, 1978, requesting to proceed in forma pauperis and to have counsel appointed in his behalf. The petition, which alleged that appellant received ineffective assistance of counsel at trial, was denied and this appeal followed.

Appellant cites three grounds which he contends justify reversal: (1) the attorney representing him at the post-conviction stage of the proceedings denied him the Sixth Amendment right to effective assistance of counsel; ¹ (2) the trial court erred by failing to conduct an evidentiary hearing on the merits of his petition for post-conviction relief in which he raised constitutional issues of law and fact; and (3) the attorney representing him at trial also failed to provide him with effective assistance of counsel in violation of the Sixth Amendment.

The case law is well-settled as to the minimum standard that is expected of lawyers in representing criminal defendants. In the recent case of Lenz v. State, 97 Nev. 65, 624 P.2d 15 (1981), this court restated that rule:

Effective counsel does not mean errorless counsel, but rather counsel whose assistance is within the range of competence demanded of attorneys in criminal cases. Jackson v. Warden, 91 Nev. 430, 432, 537 P.2d 473 (1975). Nevada law presumes that counsel fully discharge their duties, and that presumption can only be overcome by strong and convincing proof to the contrary. Warden v Lischko, 90 Nev. 221, 223, 523 P.2d 6 (1974). The standard by which a claim of counsel ineffectiveness is to be tested is whether the performance of counsel was of such low caliber as to reduce the trial to a sham, a farce or a pretense. Id. 97 Nev. at 66, 624 P.2d at 16.

Upon examining the record on appeal, we conclude that counsel for appellant at the post-conviction proceedings failed to provide the required caliber of representation. The memorandum of points and authorities which he filed in the district court violated the prohibition set forth in Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), that counsel must avoid briefing against his client's position. The record also clearly indicates that the argument of appellant's attorney at the post-conviction proceeding on November 15, 1978, that the petition was frivolous, was instrumental in causing the district court to deny the petition. Moreover, counsel failed to protect the rights of appellant by neglecting to request that an evidentiary hearing be conducted on the merits of the petition, when it was apparent that at least one constitutional issue was posed.

Appellant asserts that the district court should have accorded him a hearing on the merits of his petition for post-conviction relief because he raised constitutional questions of law and fact. Appellant's claim that the performance of his trial attorney denied him of his Sixth Amendment right to effective representation is, under the circumstances of this case, a question of fact. We...