would have said or what actions counsel could have taken which would 

have changed the sentence imposed. See Strickland v. Washington, 466 

U.S. 668, 687-88 (1984) (a petitioner must demonstrate that counsel's 

performance fell below an objective standard of reasonableness, and a 

reasonable probability that, but for counsel's errors, the outcome of the 

proceedings would have been different); Warden v. Lyons, 100 Nev. 430, 

432-33, 683 P.2d 504, 505 (1984). We conclude that the district court did 

not err by denying this claim and by doing so without conducting an 

evidentiary hearing. See Rubio v. State, 124 Nev. 1032, 1046, 194 P.3d 

1224, 1233-34 (2008) ("[W]hen the defendant's claims are belied by the 

record or not supported by specific facts, which, if true, would entitle him 

to relief, the district court may reject a claim without conducting an 

evidentiary hearing."). 

Second, Uribe contends that the district court erred by 

denying his claim that appellate counsel was ineffective for failing to 

argue that the sentencing court abused its discretion by neglecting to 

consider the factors enumerated in NRS 193.165(1)(a)-(e) and explain its 

reasons for imposing sentence. We decline to consider these assertions 

because they were not raised below. See Davis v. State, 107 Nev. 600, 606, 

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

120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004). Moreover, as explained 

above, the sentencing court specifically noted that it had considered the 

factors enumerated in NRS 193.165(1)(a)-(e) and explained its reasons for 

imposing sentence and therefore this claim would have been unsuccessful 

on appeal. See Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14 

(1996) (holding that to prove ineffective assistance of appellate counsel, a 

petitioner must demonstrate that counsel's performance fell below an 

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objective standard of reasonableness and that the omitted issue would 

have had a reasonable probability of success on appeal). 

Third, Uribe contends that the district court erred by denying 

his claim that his guilty plea was not knowingly and voluntarily entered 

due to the ineffective assistance of counsel. Below, Uribe contended that 

counsel failed to explain to him the legal effect of self-defense and that the 

State bore the burden of proof at trial. The district court found that 

counsel was not deficient and denied this claim because Uribe admitted at 

the evidentiary hearing that counsel discussed self-defense and the burden 

of proof with him. Uribe failed to demonstrate that his plea was not 

knowingly and voluntarily entered because the record indicates that he 

understood the nature of the charges and the consequences of pleading 

guilty. We conclude that the district court did not err by denying this 

claim. See Rubio, 124 Nev. at 1038, 194 P.3d at 1228. 

Fourth, Uribe contends that the district court erred by 

denying his claim that his guilty plea was not knowingly and voluntarily 

entered because he was incompetent at the time he pleaded guilty. 

However, Uribe argued below that counsel was ineffective for failing to 

determine whether he was competent. Because the assertion on appeal is 

not the same as that raised below, we decline to consider it. See Ford v. 

Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995) (an appellant "cannot 

change [his] theory underlying an assignment of error on appeal"). 

Fifth, Uribe contends that the sentencing court abused its 

discretion by (1) considering suspect evidence, (2) failing to consider 

mitigating evidence, and (3) imposing a sentence "in excess of that needed 

for society's interests." The district court denied this claim on the grounds 

that it should have been raised on direct appeal. See Franklin v. State, 

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J. 

Hardesty 

Douglas 

110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) (claims that are appropriate 

for a direct appeal must be pursed on direct appeal or will be considered 

waived, including "a challenge to the sentence imposed on constitutional 

or other grounds"). We conclude that the district court did not err by 

denying this claim. See also NRS 34.810(1)(a) (limiting scope of claims 

that may be raised where conviction was upon a guilty plea). 

We conclude that no relief is warranted, and we 

ORDER the judgment of the district court AFFIRMED. 

cc: Hon. Patrick Flanagan, District Judge 

Karla K. Butko 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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