Toribio-Ruiz (Heriberto) v. Warden

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).

Appellant argues that his trial counsel was ineffective for failing to present sufficient arguments and mitigating evidence at sentencing. Appellant fails to demonstrate his trial counsel's performance was deficient or that he was prejudiced. Trial counsel testified at the evidentiary hearing that she did speak with appellant after the jury verdict and had discussed sentencing and character evidence as part of her trial preparation. Trial counsel presented six letters in mitigation for consideration at the sentencing hearing. Trial counsel explained at the evidentiary hearing that she did not present witnesses at the sentencing hearing because she had previously presented evidence of appellant's good character at trial and that sentencing was before the same judge that had presided over the trial. Trial counsel further testified that she was aware of the change in possible sentences regarding the lewdness count but that her strategy was to argue for concurrent sentences and emphasize appellant's lack of significant criminal history and to present his character through the letters and prior testimony at trial. Appellant fails to demonstrate that there was a reasonable probability of a different outcome had trial counsel presented further argument and mitigating evidence at sentencing. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

' J.

Pickering

J. J. Parrag-uirre

SUPREME COURT

OF

NEVADA (0) 1947A 0 cc: Hon. Connie J. Steinheirner, District Judge Edward T. Reed

Attorney General/Carson City

Washoe County District Attorney

Washoe District Court Clerk

SUPREME COURT

OF

NEVADA (0) 1947A 44e40