COLE GUERRERO v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Cole Guerrero appeals from a judgment of conviction, entered pursuant to a guilty plea, of assault with the use of a deadly weapon constituting domestic violence. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.

Guerrero argues the district court erred by denying his presentence motion to withdraw guilty plea without first conducting an evidentiary hearing. A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and “a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just,” Stevenson v. State, 131 Nev. 598, 604, 354 P.3d 1277, 1281 (2015). “[T]he district court must consider the totality of the circumstances to determine whether permitting withdrawal of a guilty plea before sentencing would be fair and just.” Id. at 603, 354 P.3d at 1281. We review the district court's decision on a motion to withdraw a guilty plea for an abuse of discretion. Molina v. State, 120 Nev. 185, 191, 87 P.3d 533, 538 (2004).

Ineffective assistance of counsel can constitute a fair and just reason for withdrawing a guilty plea. See Sunseri v. State, 137 Nev. 562, 566, 495 P.3d 127, 132 (2021). In Sunseri, the supreme court adopted the Strickland ¹ standard for determining whether a defendant has demonstrated ineffective assistance of counsel regarding a presentence motion to withdraw a guilty plea. See id. A defendant must meet two criteria to establish ineffective assistance of counsel sufficient to invalidate a guilty plea: (1) “counsel's performance was deficient in that it fell below an objective standard of reasonableness”; and (2) “prejudice resulted in that, but for counsel's errors, there is a reasonable probability the defendant would not have pleaded guilty and would have insisted on going to trial.” Id. To warrant an evidentiary hearing, Guerrero had to raise claims supported by specific factual allegations that were not belied by the record and that, if true, would entitle him to relief. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

First, Guerrero argues the district court abused its discretion by denying his claim that counsel failed to conduct any meaningful investigation and failed to speak with him outside the courtroom. Below, Guerrero contended counsel failed to inquire about his rendition of facts and only spoke to him in the courtroom. Guerrero did not explain what his rendition of the facts were or allege what investigation counsel could have done had counsel heard Guerrero's rendition of facts. See Molina, 120 Nev. at 192, 87 P.3d at 538 (concluding a petitioner claiming counsel did not conduct an adequate investigation must specify what a more thorough investigation would have uncovered). Thus, Guerrero failed to allege specific facts indicating counsel's performance was deficient or resulting prejudice. Therefore, we conclude the district court did not abuse its discretion by denying this claim without first conducting an evidentiary hearing.

Second, Guerrero argues the district court abused its discretion by denying his claim that counsel failed to explain the rights he was waiving by pleading guilty. Guerrero fails to allege what rights he did not understand. Further, the guilty plea agreement outlined the rights he was waiving, and the district court canvassed Guerrero on those rights. By signing the plea agreement, Guerrero attested that he understood the guilty plea agreement. He also affirmed that he understood the rights he was waiving when asked by the district court. Therefore, the record explicitly demonstrates Guerrero was informed of the rights he waived, and Guerrero indicated on the record that he understood them. Thus, Guerrero failed to allege specific facts indicating counsel's performance was deficient or resulting prejudice. Cf. Rubio v. State, 124 Nev. 1032, 1038, 194 P.3d 1224, 1228 (2008) (“Further, a defendant may generally not repudiate her assertions, made in open court, that the plea is voluntary.”). Therefore, we conclude the district court did not abuse its discretion by denying this claim without first conducting an evidentiary hearing.

Third, Guerrero argues the district court abused its discretion by denying his claim that counsel failed to explain he would lose his right to bear arms by pleading guilty to a felony. At the change-of-plea hearing, Guerrero asked the district court about his second amendment rights. The district court stopped the hearing and had counsel and Guerrero discuss the issue. When the parties came back on the record, counsel stated, “I think he understands now.” The district court then asked Guerrero if he understood that, if he became a convicted felon, he no longer would be allowed to possess guns of any kind. Guerrero stated, “Yeah, and is that for the rest of my life?” The district court informed him that the prohibition would be for the rest of his life, and Guerrero indicated he understood. On appeal, Guerrero argues counsel did not explain the loss of his gun rights and told him to tell the district court, “yes sir” when asked questions.

We conclude Guerrero fails to demonstrate a reasonable probability he would not have pleaded guilty and would have insisted on going to trial had counsel explained his gun rights. The district court allowed counsel time during the plea colloquy to explain the gun rights issue, and Guerrero indicated he understood he was giving up his gun rights by pleading guilty. Further, Guerrero's claim that counsel told him to only say “yes sir” to questions from the judge is not supported by the record because Guerrero did not limit his answers to “yes sir” to the district court's questions but instead asked clarifying questions. Therefore, we conclude the district court did not abuse its discretion by denying this claim without first conducting an evidentiary hearing.

Fourth, Guerrero argues the district court abused its discretion by denying his claim that counsel failed to explain what being a lifelong felon would mean regarding future employment or his ability to rejoin the armed forces. Counsel is not deficient for failing to inform a defendant of the collateral consequences of his plea. See id. at 1040, 194 P.3d at 1230 (holding that counsel's failure to inform a defendant of the collateral consequences of his plea was not unreasonable and, “therefore, failed to meet the first prong of the Strickland test for ineffective assistance of counsel”). Guerrero fails to demonstrate that his ability to obtain employment or rejoin the armed forces had an immediate effect on the nature or length of his punishment; thus, he fails to show counsel had a duty to inform him of these collateral consequences. See Palmer v. State, 118 Nev. 823, 826, 59 P.3d 1192, 1194 (2002) (“Direct consequences have an automatic and immediate effect on the nature or length of a defendant's punishment; collateral consequences do not.”). Accordingly, Guerrero fails to allege specific facts not belied by the record that, if true, would entitle him to relief. Therefore, we conclude the district court did not abuse its discretion by denying this claim without first conducting an evidentiary hearing.

Fifth, Guerrero claims the district court should not have denied his claim that his plea should be withdrawn because he always maintained his innocence. Although a “credible claim of factual innocence” may constitute a fair and just reason to permit withdrawal of a guilty plea, see Mitchell v. State, 109 Nev. 137, 141, 848 P.2d 1060, 1062 (1993), a bare assertion of innocence is not, in and of itself, sufficient to establish a fair and just reason for withdrawing a guilty plea, see Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285, 1290 n.6 (Pa. 2015). Guerrero's claim of innocence is bare; thus, we conclude he failed to demonstrate a fair and just reason to withdraw his plea. Therefore, we conclude the district court did not abuse its discretion by denying this claim without first conducting an evidentiary hearing.

Having concluded Guerrero is not entitled to relief,  ² we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Strickland v. Washington, 466 U.S. 668 (1984).

2.   Guerrero argues the district court did not apply the correct standard when considering his presentence motion to withdraw his plea because the district court focused solely on the plea canvass rather than the totality of the circumstances. We conclude the district court cited to, and applied, the correct standard when orally denying the motion.