Garcha v. State

499 P.3d 1207 (Table)

Kevinjit Singh GARCHA, Appellant,

v.The STATE of Nevada, Respondent.

No. 81956

Supreme Court of Nevada.

FILED DECEMBER 17, 2021

Karla K. Butko

Richard A. Molezzo

Attorney General/Carson City

Washoe County District Attorney

ORDER OF AFFIRMANCE

Garcha was convicted pursuant to a guilty plea. In his petition for postconviction habeas relief, Garcha first alleged that counsel provided ineffective assistance during and in preparation for the sentencing hearing, among other claims. The district court concluded that the petition was barred under NRS 34.810(1)(a) because Garcha pleaded guilty and the petition was "not based upon an allegation that the plea was involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel." In rejecting Garcha's petition, the district court did not have the benefit of this court's recent decision in Gonzales v. State , 137 Nev., Adv. Op. 40, 492 P.3d 556, 562 (2021). In Gonzales , we clarified that a petitioner who pleaded guilty may allege that he or she received ineffective assistance of counsel at sentencing because that claim could not have been raised before entering the plea and barring such a claim would "violate the spirit of our habeas statute and the public policy of this state." Id. at 562. Accordingly, the district court erred in concluding that NRS 34.810(1)(a) barred Garcha's claim of ineffective assistance at sentencing.

Nevertheless, this claim is moot. Garcha's sentence has expired. A petitioner who was in custody when the petition was filed may challenge a judgment of conviction notwithstanding release from custody where the conviction has collateral consequences. Martinez-Hernandez v. State , 132 Nev. 623, 627, 380 P.3d 861, 864 (2016). Where a claim relates to a sentence, the appropriate relief generally would be a new sentencing hearing. See Gonzales , 137 Nev., Adv. Op. 40, 492 P.3d at 564. Where that sentence has expired, any sentencing-related claims are moot. Martinez-Hernandez , 132 Nev. at 627 n.1, 380 P.3d at 864 n.1. Accordingly, Garcha's ineffectiveness claims relating to counsel's performance regarding sentencing, as stated in ground one, are moot. The district court therefore reached the correct outcome in denying this claim. See Wyatt v. State , 86 Nev. 294, 298, 468 P.2d 338, 340 (1970) ("If a judgment or order of a trial court reaches the right result, although it is based on an incorrect ground, the judgment or order will be affirmed on appeal.").

Garcha next argues that counsel did not adequately investigate witnesses who would testify about Garcha's and the victim's degrees of intoxication at the time of the incident. He argues that further investigation would have shown that Garcha was more intoxicated, and the victim less, than the State represented. To prove ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must demonstrate that his counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that he 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). The record shows that counsel investigated an intoxication defense, which was discussed in a pretrial motion to dismiss that addressed Garcha's and the victim's degrees of intoxication. Garcha has not shown how additional evidence that he had been drinking would have led him to insist on proceeding to trial, see Molina v. State , 120 Nev. 185, 192, 87 P.3d 533, 538 (2004), particularly as voluntary intoxication is not a defense to sexual assault, see NRS 193.220 (providing that a jury may consider voluntary intoxication only for specific intent crimes); Henry v. United States , 432 F.2d 114, 119 (9th Cir. 1970) (examining NRS 193.220 and concluding that voluntary intoxication is not a defense to sexual assault and that the district court did not err in rejecting instruction that the jury could take intoxication into account in finding mens rea), modified on other grounds by Henry v. United States , 434 F.2d 1283, 1284 (9th Cir. 1971). The district court therefore did not err in denying this claim without an evidentiary hearing. See Nika v. State , 124 Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008) (providing that a petitioner is entitled to an evidentiary hearing when the claims asserted are supported by "specific factual allegations that are not belied or repelled by the record and that, if true, would entitle [the petitioner] to relief.").

Garcha next argues that the factual basis for his guilty plea was not stated on the record during his plea canvass. Garcha's claim that counsel should have challenged the guilty plea as not supported by a statement of its factual basis is belied by the record, as the State recited the elements and facts that it was prepared to prove and Garcha assented that he understood. See Tiger v. State , 98 Nev. 555, 558, 654 P.2d 1031, 1033 (1982) (providing that the district court must determine that there is a factual basis for the plea pursuant to North Carolina v. Alford , 400 U.S. 25 (1970), and that the defendant understands the elements of the charged offense).¹ The district court therefore did not err in denying this claim without an evidentiary hearing.

Garcha next argues that counsel should not have recommended the plea agreement because it allowed the State to argue for incarceration and probation simultaneously. The plea agreement provides that the State agreed not to oppose probation, should Garcha qualify. Garcha has not...