MARTIN v. GARRETT (2026)

ORDER OF AFFIRMANCE

Martin contends the district court erred by denying his claims of ineffective assistance of trial counsel. To demonstrate ineffective assistance of trial counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that there was a reasonable probability of a different outcome absent counsel's errors. Strickland u. 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 sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must show a reasonable probability that, but for counsel's errors, the 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—deficiency and prejudice—must be shown, Strickland, 466 U.S. at 687, 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. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).

First, Martin asserted trial counsel was ineffective for failing to challenge the district court's denial of a pretrial motion to suppress a recorded phone call of him confessing to sexually abusing the victim when she was a child. Martin argued trial counsel did not pursue or discuss pursuing an extraordinary petition for writ relief to challenge the district court's ruling on the motion and failed to discuss the potential merits of a direct appeal raising this issue if he were convicted at trial. In his petition, Martin claimed that, had he received this advice from trial counsel, he would not have pleaded guilty and instead would have proceeded to trial.

The supreme court has consistently held that the right to a direct appeal will generally preclude extraordinary writ relief. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 224, 88 P.3d 840, 841 (2004) (“[T]he right to appeal is generally considered an adequate legal remedy that precludes writ relief.”) And Martin had the right to appeal from a final judgment or verdict. See NRS 177.015(3). Furthermore, the district court found that trial counsel's decision to not seek review of the denial of the suppression motion was a “reasonable tactical strategy.” This finding is supported by the record. Trial counsel's former law partner and co-counsel in this matter ¹ testified at the evidentiary hearing held on Martin's petition that trial counsel's strategy was to focus on trial preparation, plea negotiations, and developing mitigation evidence to present Martin as a low risk for reoffending. Thus, Martin failed to demonstrate trial counsel's performance was deficient. See Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (“[C]ounsel's strategic or tactical decisions will be virtually unchallengeable absent extraordinary circumstances” (internal quotation marks omitted)).

The district court further found Martin failed to demonstrate he was prejudiced by trial counsel's decision to not seek review of the district court's denial of the suppression motion. This finding is also supported by the record. Martin did not present any evidence at the evidentiary hearing to support his allegation that he would have insisted on going to trial if he had been informed that doing so would have preserved his right to appeal this issue. We therefore conclude the district court did not err by denying this claim.

Second, Martin claimed trial counsel was ineffective for failing to investigate his self-diagnosed Avoidant Personality Disorder (AVPD) and to offer it either as an explanation for his behavior on the recorded call or as mitigation information at sentencing. The district court found that Martin did not demonstrate he had been or could have been diagnosed with AVPD and that the record contradicted his claim. The record supports the findings of the district court. There is no indication in the record Martin was ever diagnosed with AVPD, and the psychosexual report trial counsel presented as mitigating evidence specifically concluded Martin “does not have a personality disorder.” We therefore conclude Martin failed to demonstrate counsel's performance was deficient in this regard or any resulting prejudice. Accordingly, we conclude the district court did not err in denying this claim.

Third, Martin asserted trial counsel was ineffective for failing to argue that NRS 176.139 and NRS 176A.110, the statutes requiring psychosexual evaluations for offenders convicted of certain sexual offenses in order to be eligible for probation, are unconstitutional insofar as they violate the separation of powers doctrine and Martin's rights to remain silent and have counsel present at the evaluations. The district court found that Martin had not offered any legal authority to support his claim that the statutes are unconstitutional. Further, the district court found that “it was clearly part of the defense strategy ․ for [Martin] to participate in a psychosexual evaluation” to better position him for plea negotiations and to further the goal of getting probation and that Martin had failed to establish he was prejudiced.

The record supports the district court's findings. With respect to Martin's separation of powers argument, NRS 176.139 and NRS 176A.110 merely establish the probation eligibility of defendants convicted of certain sex offenses and do not encroach on the courts’ sentencing discretion. As to Martin's claim that the statutes violate the right to remain silent and the right to the presence of counsel, the supreme court held in Dzul v. State that (1) a defendant is not entitled to Miranda warnings prior to a psychosexual evaluation, and (2) the “adverse consequence that may follow from a sex offender's denial of responsibility for his crime of conviction, namely, a greater risk of receiving an unfavorable psychosexual evaluation and being denied probation, does not amount to unconstitutional compulsion.” 118 Nev. 681, 687, 696, 56 P.3d 875, 879, 885 (2002). Further, as to the finding that trial counsel made a strategic decision to have Martin evaluated, trial co-counsel testified that the defense strategy was to position Martin for probation. Therefore, Martin failed to demonstrate trial counsel's performance was deficient. See Lara, 120 Nev. at 180, 87 P.3d at 530; Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that counsel is not deficient for failing to make futile motions). Finally, we conclude Martin did not demonstrate he was prejudiced by trial counsel's failure to challenge the statutes’ constitutionality because he failed to demonstrate that, but for counsel's alleged deficient performance, he would have insisted on going to trial. We therefore conclude the district court did not err in denying this claim.

Fourth, Martin asserted trial counsel was ineffective for failing to negotiate a no contest or Alford ² plea. Martin contended that, had he entered an Alford plea, “he would not have needed to explain his decision to plea[d] [guilty] at sentencing.” Martin argued that entering a guilty plea rather than an Alford plea was prejudicial because the district court focused on his equivocal statements about his criminal responsibility in imposing sentence and “perceived [him] as a liar.” The district court found Martin failed to demonstrate the State would have agreed to his entering an Alford plea and also failed to demonstrate that the sentencing outcome would have been different had Martin entered an Alford plea.

The record supports the district court's findings. Trial co-counsel testified that, based on his review of trial counsel's email communications with the State, the prosecutor rejected trial counsel's suggestion of a no-contest plea. Further, the prosecutor testified at the evidentiary hearing that the State would not have agreed to an Alford plea because it was important to the victim that Martin accept responsibility for his criminal conduct. Thus, we conclude Martin failed to demonstrate counsel's performance was deficient. And given that an Alford plea is considered equivalent to a guilty plea insofar as how the court treats a defendant ³ , we conclude Martin failed to establish a reasonable probability that the outcome of the sentencing hearing would have been different but for counsel's alleged error and thus failed to demonstrate prejudice. Gonzales v. State, 137 Nev. 398, 404, 492 P.3d 556, 562 (2021) (applying the Strickland test to claims alleging ineffective assistance of counsel at sentencing following a guilty plea). We therefore conclude the district court did not err in denying this claim.

Fifth, Martin claimed trial counsel was ineffective for leaving him vulnerable to “sentencing by ambush.” In essence, Martin argued that counsel was ineffective for advising him to accept a plea deal because any lengthy term of imprisonment was effectively a life sentence given his advanced age. The district court rejected this claim because Martin cited no authority to support his contention and because Martin “accurately expressed his understanding of the potential sentence he faced” at the change of plea hearing. The record supports the district court's findings. Moreover, as trial co-counsel testified at the evidentiary hearing, trial counsel's goal was to achieve probation eligibility, and he therefore advised Martin to plead guilty to a probation-eligible offense. We conclude Martin failed to establish either deficient performance by trial counsel or a reasonable probability that the outcome of the sentencing hearing would have been different but for counsel's allegedly deficient advice and thus failed to demonstrate prejudice. Gonzales, 137 Nev. at 404, 492 P.3d at 562. We therefore conclude the district court did not err in denying this claim.

Sixth, Martin claimed trial counsel was ineffective for failing to object to the district court's order that Martin appear at the Washoe County Sheriff's Office jail to participate in the sentencing hearing. The district court first found such an objection would have been futile given that the courthouse was closed for public appearances due to the COVID-19 pandemic at the time of Martin's sentencing. As for Martin's claim that he was prejudiced by remotely appearing as he could not communicate with trial counsel, the district court found Martin had failed to demonstrate prejudice because there was evidence he had the ability to contact counsel but no evidence that he wanted to or attempted to speak with counsel during the hearing.

The record supports the district court's findings. The sentencing hearing was conducted on January 19, 2021. The record indicates that in January 2021, the Second Judicial District Court was requiring all district court hearings to be conducted by audiovisual means. Any objection to the district court's order that Martin appear remotely would therefore have been futile. See Chaparro v. State, 137 Nev. 665, 497 P.3d 1187 (2021) (concluding a defendant's right to be present was not violated when his sentencing was conducted remotely due to the district court's administrative orders forbidding in-person hearings because of the COVID-19 pandemic). Thus, trial counsel's performance was not deficient. See Donovan, 94 Nev. at 675, 584 P.2d at 711. As to whether Martin was prejudiced by his counsel appearing remotely from a separate location, a sheriff's deputy who was present at the jail for Martin's sentencing hearing testified at the evidentiary hearing that Martin had access to his cell phone during the sentencing hearing and did not make any statements indicating he wanted or needed to confer with counsel. And there is no evidence in the record indicating Martin needed to confer or was prohibited from conferring with trial counsel during the sentencing hearing. Thus, we conclude that Martin failed to demonstrate a reasonable probability of a different result at sentencing had counsel not appeared remotely in a separate location and that the district court did not err in denying this claim.

Seventh, Martin asserted trial counsel was ineffective for failing to object to the prosecutor's sentencing arguments, alleging that the prosecutor effectively testified as an expert witness regarding child victims of sexual abuse and psychosexual evaluations. The district court found that the prosecutor's arguments ‘‘did not cross the threshold into witness testimony” and that the sentence the court imposed was “the result of this Court's independent assessment of the record and evidence presented.” The district court further found Martin had not demonstrated he was prejudiced by trial counsel's failure to object to the prosecutor's sentencing argument because Martin had not presented any evidence that a different outcome would have ensued had trial counsel objected.

The record supports the findings of the district court. The prosecutor's sentencing arguments did not exceed the scope of permissible argument, and there is no indication in the record the prosecutor couched her arguments as expert testimony. As to prejudice, Martin failed to demonstrate he would have achieved a more favorable outcome if trial counsel had objected to the prosecutor's arguments. Gonzales, 137 Nev. at 404, 492 P.3d at 562. We therefore conclude the district court did not err by denying this claim.

Martin also asserted appellate counsel provided ineffective assistance. To demonstrate ineffective assistance of appellate counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that the omitted issue would have a reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923 P.2d at 1114. 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).

First, Martin claimed appellate counsel was ineffective for failing to challenge the denial of the suppression motion on direct appeal. The district court found that Martin failed to demonstrate appellate counsel was ineffective because appellate counsel was precluded from asserting such a claim. The record supports this finding. As part of his plea agreement, Martin expressly waived his right to appeal from any adverse rulings on pretrial motions unless “the State and the Court consent to [his] right to appeal in a separate written agreement.” There is no evidence in the record that Martin obtained consent to appeal the denial of the suppression motion. Thus, we conclude that Martin failed to demonstrate appellate counsel's performance was deficient or resulting prejudice and that the district court did not err in denying this claim.

Second, Martin asserted appellate counsel was ineffective for failing to challenge the constitutionality of NRS 176.139 and NRS 176A.110 on appeal. The district court found that, given the defense strategy, it “would not have been tactically sound” to challenge the statutes on appeal and that Martin had failed to demonstrate the possibility of a different outcome on appeal had appellate counsel pursued this claim. The record supports the district court's findings. As discussed above, trial counsel's defense strategy was to position Martin favorably for probation. Appellate counsel testified he did not consider challenging the statutes’ constitutionality because such a challenge would have conflicted with the defense strategy of obtaining a sentence of probation. Further, given that Dzul appears to foreclose Martin's claim, Martin failed to demonstrate that this issue would have a reasonable probability of success on appeal. We therefore conclude the district court did not err in denying this claim.

Next, Martin challenged the validity of his guilty plea. A guilty plea is presumptively valid, and a petitioner carries the burden of establishing that the plea was not entered knowingly and intelligently. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986), superseded by statute on, other grounds as stated in Hart v. State, 116 Nev. 558, 562 n.3, 1 P.3d 969, 971 n.3 (2000). “A guilty plea entered on advice of counsel may be rendered invalid by showing a manifest injustice through ineffective assistance of counsel.” Rubio v. State, 124 Nev. 1032, 1039, 194 P.3d 1224, 1228 (2008). This court will not overturn a district court's determination on manifest injustice absent a clear showing of an abuse of discretion. Id. at 1039, 194 P.3d at 1229.

Martin claimed his plea was not knowing or voluntary because, at the time he reviewed the plea agreement, trial counsel knew he was taking hydrocodone and gabapentin to treat the symptoms of a back injury, and therefore knew Martin was incapable of knowingly consenting to the terms of the plea agreement. The district court found that there was no evidence other than Martin's assertions in the petition that he was under the influence of medications that would render his plea invalid. Given that the record contains no evidence supporting Martin's contention, we conclude the district court did not err in denying this claim.

Martin also claimed his plea was not knowing or voluntary because counsel did not ensure the written plea agreement complied with the requirements of NRS 174.063, which outlines the required form for plea agreements. Specifically, Martin argued that the plea agreement did not indicate all the rights he was waiving and that he therefore did not knowingly and voluntarily plead guilty. The district court found that, pursuant to Sparks v. State, NRS 174.063 only requires substantial compliance with the statutory form and that, even if a plea agreement does not substantially comply with the statute, the agreement is still enforceable if the totality of the circumstances demonstrates the plea was knowing, voluntary, and intelligent. 121 Nev. 10 7, 110, 112, 110 P.3d 486, 488, 489 (2005).

Even assuming the plea agreement did not substantially comply with the statutory form, the totality of the circumstances indicates Martin knowingly and voluntarily pleaded guilty. At the change of plea, the district court canvassed Martin on his understanding that he was waiving his right to trial, his right to confront witnesses and gather and examine evidence, his right to remain silent, and his right to testify on his own behalf. The district court confirmed Martin's understanding that he was pleading guilty to the offense conduct in the amended information, and Martin correctly answered the district court's questions regarding the penalties it could impose. Accordingly, we conclude the district court did not err in denying this claim.

Finally, Martin asserted the cumulative effect of trial counsel's and appellate counsel's errors warrants relief. Even if multiple instances of deficient performance could be cumulated for purposes of demonstrating prejudice, see McConnell v. State, 125 Nev. 243, 259 & n.17, 212 P.3d 307, 318 & n. 17 (2009), Martin failed to demonstrate any errors by trial or appellate counsel. Thus, the district court did not err in denying this claim.⁴

Having considered Martin's contentions and concluded they lack merit, we

ORDER the judgment of the district court AFFIRMED.

FOOTNOTES

1.   Martin's trial counsel passed away in December 2021. The record reflects that, in addition to being co-counsel in Martin's criminal case, trial counsel's former law partner was the trustee of trial counsel's estate and responsible for winding down trial counsel's criminal matters and therefore had access to email communications and other records relevant to Martin's case.

2.   North Carolina v. Alford, 400 U.S. 25 (1970).

3.   See State v. Lewis, 124 Nev. 132, 133 n.1, 178 P.3d 146, 147 n.1 (2008), overruled on other grounds by State v. Harris, 131 Nev. 551, 556, 355 P.3d 791, 793-94 (2015).

4.   On appeal, Martin argues this court should remand the matter to the district court for a new evidentiary hearing “[a]s a matter of equity,” based on previous postconviction counsel's performance. Given that there is no constitutional or statutory right to postconviction counsel in a noncapital case such as Martin's, we decline to grant the relief requested. See McKague v. Warden, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996) (“Where there is no right to counsel there can be no deprivation of effective assistance of counsel.’’).