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). 

Irive argues that trial counsel was ineffective for failing to 

inquire about and communicate to him the expiration date of a plea offer, 

which prevented him from accepting the offer before it was withdrawn. At 

the evidentiary hearing, trial counsel testified that she informed Irive of 

the plea offer but advised him to give her time to investigate whether the 

plea offer would be beneficial before he considered accepting the offer. 

Trial counsel further testified that the prosecutor never explicitly provided 

an expiration date for the plea and that her conversations with the 

prosecutor leftS her with the impression that the plea would be available 

until trial. The district court found that trial counsel's advice to Irive, 

decision to investigate, and mistaken belief as to when the plea offer 

would expire were reasonable in light of counsel's ongoing negotiations 

and communications with the prosecutor. We conclude that this finding 

was not clearly erroneous and that substantial evidence supports the 

district court's decision that trial counsel's performance was reasonable.' 

'hive asserts that trial counsel failed to conduct the investigation 

and evaluate the plea offer in a timely manner. To the extent Irive 

attempts to argue this as a basis for ineffective assistance of counsel, we 

decline to consider this argument, as he failed to raise it in his postconviction petition or supplement below. See Davis v. State, 107 Nev. 600, 

606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means, 120 

Nev. at 1012-13, 103 P.3d at 33. 

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Further, we conclude that substantial evidence supports the 

district court's finding that Irive failed to present any evidence of a specific 

offer by the State that he would have accepted and thus did not 

demonstrate that he would have pleaded guilty but for the alleged errors 

by trial counsel. At the evidentiary hearing, trial counsel and Irive offered 

conflicting testimony about the specific terms of the plea offer and whether 

Irive would have accepted the offer. Trial counsel testified that Irive 

initially rejected the plea offer but then decided to accept it shortly before 

trial, by which time the offer had already been withdrawn by the State. 

She also stated that she was unsure whether the plea offer had always 

been contingent on both Irive and his codefendant pleading guilty in two 

separate cases, but that it was definitely contingent "right before trial . . 

and that's why we went to trial." Although Irive testified that he would 

have accepted the offer but for counsel's advice to wait until she 

investigated it, Irive's testimony indicated that he was unaware of the 

terms of the plea offer and had never expressly conveyed an interest to 

counsel in either accepting or rejecting the plea offer. 2In light of this 

conflicting evidence, hive fails to demonstrate a reasonable probability 

2Irive now concedes that he was aware of the terms of the plea offer 

prior to trial and that his testimony to the contrary was due to a faulty 

memory. By making this assertion on appeal, Irive abandons his 

allegations in his post-conviction petition that trial counsel failed to 

convey the plea offer to him until after it expired and, alternatively, that 

trial counsel failed to convey any specific details about the plea offer before 

it expired. 

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that, but for counsel's alleged deficient performance, he would have 

accepted the plea offer before the State withdrew it. See Lafler v. Cooper, 

566 U.S. , 132 S. Ct. 1376, 1385 (2012). Accordingly, we conclude 

that the district court did not err in denying this claim. 

Next, Irive contends that the district court erred in denying 

his claim that appellate counsel was ineffective for failing to provide a 

sufficient record on appeal. 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). 

Irive argues that appellate counsel's failure to provide this 

court with an audio-visual recording of the sentencing hearing precluded 

this court from considering on direct appeal whether the trial court erred 

in imposing a harsher sentence based on Irive's failure to take 

responsibility for his actions and his exercise of his constitutional right to 

trial. Irive fails to demonstrate a reasonable probability that, had 

appellate counsel provided this recording on direct appeal, his sentence 

would have been vacated. The audio-visual recording was played at the 

evidentiary hearing, and the record indicates that the trial court may have 

stated, "he didn't," after trial counsel argued that Irive had taken 

responsibility for his actions. At no point did the trial court state that it 

based its sentence on Irive's failure to take responsibility or his decision to 

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go to trial and testify in his own defense; rather, the trial court stated that 

it was imposing a harsher sentence because of Irive's criminal conduct and 

history. See Brake v. State, 113 Nev. 579, 584-85, 939 P.2d 1029, 1033 

(1997). Therefore, we conclude that the district court did not err in 

denying this claim. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 3 

Saitta 

Gibbons 

J. 

cc: Hon. Elissa F. Cadish, District Judge 

Law Office of Kristina Wildeveld 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

3Irive has submitted a pro se supplemental brief and a pro se motion 

for leave to file the supplemental brief. Because Irive is represented by 

counsel in this appeal, we decline to permit him to file pro se documents. 

See NRAP 46(b). Accordingly, the clerk of this court shall return, unfiled, 

the pro se motion and supplemental brief received on March 3, 2015. 

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