Mullner v. State

• Decision Date: 14 January 2020
• Docket Number: No. 77811-COA,77811-COA
• Citation: Mullner v. State, No. 77811-COA (Nev. App. Jan 14, 2020)
• Parties: TROY LEE MULLNER, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Court of Appeals

TROY LEE MULLNER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 77811-COA

COURT OF APPEALS OF THE STATE OF NEVADA

January 14, 2020

ORDER OF AFFIRMANCE

Troy Lee Mullner appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus.Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

First, Mullner argues the district court erred by denying the claims of ineffective assistance of counselhe raised in his July 24, 2018, petition.To prove ineffective assistance of counsel, a petitioner must demonstrate counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability, but for counsel's errors, the outcome of the proceedings would have been different.Strickland v. Washington, 466 U.S. 668, 687-88(1984);Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505(1984)(adopting the test in Strickland).To demonstrate prejudice regarding the decision to enter a guilty plea, a petitioner must demonstrate a reasonable probability, 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.To warrant an evidentiary hearing, petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle him to relief.Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225(1984).

Mullner claimed his counsel was ineffective for failing to investigate Mullner's drug use and mental health history.Mullner appeared to assert he was unable to enter a knowing and intelligent guilty plea due to these deficiencies.Mullner also appeared to assert counsel should have investigated whether these issues caused him to be impaired when he committed the crimes, and therefore he was not criminally responsible.

Mullner did not specify what a more thorough investigation concerning his drug use and mental health history would have uncovered or how it would have altered the outcome.SeeMolina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538(2004).Because Mullner did not specify what information his counsel could have reasonably uncovered concerning these issues, he failed to demonstrate his counsel acted in an objectively unreasonable manner, or a reasonable probability of a different outcome had counsel investigated his drug use or mental health issues.Therefore, we conclude the district court did not err in denying this claim without conducting an evidentiary hearing.¹

Mullner also claimed his counsel was ineffective for failing to file a motion to suppress his confession.Mullner contended he did not remember receiving the Miranda² warning and waiving his rights because he had used drugs and alcohol shortly before talking with the detective."[I]ntoxication is not, by itself, sufficient to render a confession involuntary when the totality of the circumstances otherwise indicate that the statements were voluntary."Gonzales v. State, 131 Nev. 481, 488 n.2, 354 P.3d 654, 659 n.2(Ct. App.2015).

Before the grand jury, a detective testified he informed Mullner of his Miranda rights, Mullner stated he understood those rights, and Mullner agreed to speak with him about the crimes.The detective testified Mullner provided detailed information concerning his commission of the crimes.The detective further testified Mullner informed him that he abused alcohol and methamphetamine, but the detective explained that Mullner had no trouble during their discussion explaining the commission of the crimes.

Based upon the record, the totality of the circumstances indicate Mullner voluntarily waived his Miranda rights and voluntarily confessed to committing the crimes.Therefore, Mullner did not demonstrate his counsel's failure to move to suppress his confession amounted to the actions of objectively unreasonable counsel or a reasonable probability of a different outcome had counsel filed a motion to suppress hisconfession.Accordingly, the district court did not err by denying this claim without conducting an evidentiary hearing.

Mullner further claimed his counsel was ineffective for failing to advise him of favorable plea offers made by the State.Mullner contended there was a plea offer that would have resulted in a more lenient prison sentence than what he ultimately received, but counsel did not inform him of that offer prior to its expiration.Mullner did not identify the source for his allegation or provide additional information concerning the alleged plea offer, particularly regarding the charges that would have been included and the structure of the sentence that would have been recommended to the sentencing court.In addition, Mullner did not address whether he would have accepted the plea offer absent ineffective assistance of counsel, whether the State would have withdrawn the plea offer in light of intervening circumstances, or whether the district court would have accepted such an offer.

As Mullner failed to provide information concerning the plea offer and the parties' actions concerning that offer, he failed to meet his burden to demonstrate he was entitled to relief.SeeMissouri v. Frye, 566 U.S. 134, 147(2012);see alsoHargrove, 100 Nev. at 502-03, 686 P.2d at 225(explaining that a bare, unsupported claim is insufficient to demonstrate a petitioner is entitled to relief).Accordingly, Mullner failed to demonstrate his counsel's actions regarding the communication of plea offers fell below an objectively reasonable standard.Moreover, Mullner did not demonstrate "a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time,"Frye, 566 U.S. at 147, and therefore failed to meet his burden to demonstrate he was prejudiced by counsel's actions regarding theplea negotiations.Accordingly, the district court did not err by denying this claim without conducting an evidentiary hearing.

Mullner finally claimed his counsel was ineffective for failing to secure a more favorable plea agreement.Mullner contended counsel should have utilized information concerning Mullner's substance abuse and mental health history or a motion to suppress his statement to the detective in order to receive a more lenient plea offer.Mullner did not demonstrate counsel could have reasonably obtained concessions during plea negotiations based upon these issues.Mullner also failed to demonstrate a reasonable probability he would have received a more lenient plea bargain had counsel made further attempts at negotiation utilizing this information.Therefore, the district court did not err by denying this claim without conducting an evidentiary hearing.

Second, Mullner claims his appellate counsel was ineffective.To prove ineffective assistance of appellate counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that the omitted issue would have a reasonable probability of success on appeal.Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114(1996).Both components of the inquiry must be shown.Strickland, 466 U.S. at 697.Appellate counsel is not required to raise every non-frivolous issue on appeal.Jones v. Barnes, 463 U.S. 745, 751(1983).Rather, appellate counsel will be most effective when every conceivable issue is not raised on appeal.Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953(1989).

Mullner claimed his appellate counsel acted under a conflict of interest because she advised him to drop his postconviction motion to withdraw guilty plea.Mullner contended he raised issues regarding herineffectiveness in that motion and the advice she offered concerning the motion amounted to a conflict of interest.

The record reveals that Mullner's postconviction motion to withdraw guilty plea did not raise issues concerning the actions of his appellate counsel but rather raised issues concerning a different attorney that represented him during the guilty-plea-and-sentencing proceedings.At a hearing after he filed the motion, Mullner's appellate counsel informed the trial-level court that Mullner was withdrawing the motion based upon her advice.Mullner then personally informed the district court that he no longer wished to pursue the motion, he did not want to withdraw his guilty plea, and he wished to focus on a different issue.The issues discussed at that hearing did not concern any claims of ineffective assistance of Mullner's appellate counsel.

In the context of an ineffective-assistance-of-counsel claim based on an alleged conflict of interest, "[p]rejudice is presumed only if the defendant demonstrates that counsel'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'"Strickland, 466 U.S. at 692(quotingCuyler v. Sullivan, 446 U.S. 335, 350, 348(1980)).Given the issues raised in Mullner's motion and his statement demonstrating his desire to withdraw the motion from consideration, Mullner did not demonstrate his appellate counsel actively represented conflicting interests.Accordingly, Mullner failed to demonstrate his appellate counsel acted under a conflict of interest.Therefore, the district court did not err by denying this claim without conducting an evidentiary hearing.

Mullner also claimed his appellate counsel was ineffective for raising three non-meritorious issues and declining to raise a claimregarding the validity of his guilty plea.Mullner did not identify any meritorious issues that appellate counsel should have raised.In addition, challenges to the validity of a guilty...