                must be shown, Strickland, 466 U.S. at 697, and the petitioner must
                demonstrate the underlying facts by a preponderance of the evidence,
                Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
                            First, appellant claimed that his counsel failed to investigate
                and adequately prepare for trial in regard to the testimony of Officer
                Pollock. In particular, appellant claimed his counsel should have
                challenged the officer's testimony about: (1) the beer cans observed in the
                bed of the truck because the cans were not collected as evidence or
                included in the report; (2) the soiled clothing because the detention center
                indicated that their records do not indicate appellant's clothing was soiled;
                (3) the mention of a partner because the officer does not have a partner;
                (4) observing the truck running because appellant was allegedly out of gas;
                and (5) the smell of alcohol because appellant's BAC test came back
                negative for alcohol. Appellant also claimed that Officer Pollock lied about
                his observations of appellant's person and behavior. Appellant failed to
                demonstrate that his trial counsel's performance was deficient or that he
                was prejudiced. Trial counsel questioned Officer Pollock about his
                observations of appellant's appearance and behavior. Appellant provided
                no proof supporting his assertions that the officer testified falsely.
                Appellant failed to demonstrate that further investigation and
                presentation of evidence in any of the areas described above would have
                had a reasonable probability of altering the outcome at trial. Therefore,
                we conclude that the district court did not err in denying this claim.
                            Second, appellant claimed that his counsel failed to hire an
                expert to re-test the blood to assess the accuracy of the hydrocodone levels
                and an expert to testify about whether his levels would have made him
                impaired given the fact that he had taken hydrocodone for five years and

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                                                                                                I   I
had built up a tolerance to its effects. Appellant further claimed that
counsel should have presented testimony from his treating physician
about his drug usage and appellant's medical records. Appellant failed to
demonstrate that he was prejudiced given the officer's observations about
appellant's behavior and his failure and/or inability to complete the field
sobriety tests. Therefore, we conclude that the district court did not err in
denying this claim.
            Third, appellant claimed that his counsel failed to cross-
examine the State's forensic scientist about whether the hydrocodone
levels would have resulted in appellant's impairment. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. The forensic scientist testified that appellant's levels were
within the high therapeutic range and described the concept of drug
tolerance in general terms. Given the officer's testimony about his
observations about appellant's appearance and behavior, appellant failed
to demonstrate that further testimony regarding these points would have
had a reasonable probability of altering the outcome at trial. Therefore,
we conclude that the district court did not err in denying this claim.
            Fourth, appellant claimed that trial counsel was unprepared
for trial and originally erroneously advised him the charges could be
dismissed because the blood draw was not timely performed. Appellant
failed to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. Appellant failed to demonstrate that his counsel
was unprepared for trial due to the alleged mistake about the timing of
the blood draw. Appellant failed to demonstrate that further investigation
and preparation would have had a reasonable probability of altering the




                                      3
                outcome at trial. Therefore, we conclude that the district court did not err
                in denying this claim.
                            Next, appellant claimed that he received ineffective assistance
                of appellate counsel. 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). Both components of the inquiry must be shown. Strickland,
                466 U.S. at 697. Appellate counsel is not required to raise every non-
                frivolous issue on appeal.    Jones v. Barnes, 463 U.S. 745, 751 (1983).
                Rather, appellate counsel will be most effective when every conceivable
                issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d
                951, 953 (1989).
                            First, appellant claimed that appellate counsel failed to argue
                that the police officer gave improper expert testimony regarding the
                effects of hydrocodone. Appellant failed to demonstrate that his counsel's
                performance was deficient or that this issue had a reasonable probability
                of success on appeal because the testimony was rationally based on the
                perception of the witness and helpful to a clear understanding of the
                testimony of the witness or the determination of a fact in issue.   See NRS
                50.265; Collins v. State, 113 Nev. 1177, 1184, 946 P.2d 1055, 1060 (1997).
                            Second, appellant claimed that appellate counsel failed to
                argue that there was insufficient evidence. Appellant failed to
                demonstrate that his counsel's performance was deficient or that this
                issue had a reasonable probability of success on appeal. The record
                indicates there was sufficient evidence to establish guilt beyond a

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                reasonable doubt as determined by a rational trier of fact.     See Origel-
                Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson
                v. Virginia, 443 U.S. 307, 319 (1979). The jury could reasonably infer from
                the evidence presented that appellant was under the influence of a
                controlled substance to a degree which rendered him incapable of safely
                operating or being in actual physical control of a vehicle and that he was
                driving or in actual physical control of a vehicle on premises open to the
                public. See 2003 Nev. Stat., ch. 421, § 6, at 2559-60) (former MRS 484.379)
                (re-codified in NRS 484C.110(2)). Officer Pollock, responding to a call
                regarding an accident in a store parking lot, observed appellant behind the
                wheel of a car, with the engine running and the key in the ignition. The
                officer described appellant as being unable to comprehend the officer's
                requests for his paperwork and unable to stand on his own. Appellant's
                speech was slurred and his gait was unsteady. Appellant was observed
                with bloodshot, watery and droopy eyes, and appellant failed the
                horizontal nystagmus test. Additionally, the officer observed that
                appellant's clothes were soiled. The forensic scientist testing the blood
                drawn indicated that appellant had 140 nanograms per milliliter of
                hydrocodone. Therefore, we conclude that the district court did not err in
                denying this claim.
                            Third, appellant claimed that his appellate counsel failed to
                properly challenge the statute for vagueness because the officer testified
                falsely and the statute does not proscribe the levels prohibited. Appellant
                failed to demonstrate that his counsel's performance was deficient or that
                he was prejudiced. Appellant failed to demonstrate the officer testified
                falsely or that further vagueness arguments would have had a reasonable



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                       probability of altering the outcome on appeal. Therefore, we conclude that
                       the district court did not err in denying this claim.
                                   Fourth, appellant claimed that his appellate counsel failed to
                       challenge the enhancement of his sentence. Appellant claimed that the
                       Utah conviction would not have been a felony in Nevada because under
                       the Utah law the third drunk-driving offense in ten years is a felony
                       whereas the period of time is seven years in Nevada. Appellant failed to
                       demonstrate that his counsel's performance was deficient or that he was
                       prejudiced. Former NRS 484.3792(2) provided that a person with a felony
                       driving-under-the-influence conviction who violated former NRS 484.379
                       was guilty of a Category B felony and was to be punished by a minimum
                       term of not less than 2 years and not more than 15 years. 2007 Nev. Stat.,
                       ch. 486, § 25, at 2796 (re-codified in NRS 484C.410(1)). A person
                       previously convicted of a violation of a law of any other jurisdiction that
                       prohibits the same or similar conduct as set out in former NRS
                       484.3792(2)(a) may also receive the enhanced sentence. 2007 Nev. Stat.,
                       ch. 486, § 25, at 2796 (re-codified in NRS 484C.410(1)(d)). This court has
                       held that "same conduct" need not be identical and "refers to the conduct
                       of driving under the influence whether or not the particulars are
                       identical." Jones v. State, 105 Nev. 124, 126-27, 771 P.2d 154, 155 (1989).
                       The 2007 Utah conviction involved a felony conviction for driving under
                       the influence—the "same" proscribed conduct. Therefore, we conclude that
                       the district court did not err in denying this claim.
                                   Next, appellant claimed that cumulative error by counsel
                       warranted relief. Appellant failed to demonstrate that any errors, singly
                       or combined, would have had a reasonable probability of altering the
                       outcome at trial.

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                              Finally, we note that the judgment of conviction contains a
                  clerical error. Specifically, the judgment of conviction provides a sentence
                  of 30 to 84 months for count 1 and dismisses count 2, when the record
                  reveals that appellant was convicted and sentenced for violating count 2 of
                  the information. As charged in the information, count 1 referred to a
                  felony driving-under-the-influence offense based upon appellant having
                  committed his third driving-under-the-influence offense within 7 years of
                  the principal offense, which was punishable under former NRS
                  484.3792(1)(c) with a sentence of not less than 1 year nor more than 6
                  years. 2007 Nev. Stat., ch. 486, § 25, at 2796. The alternative count,
                  count 2, referred to a felony offense based upon appellant having a prior
                  felony driving-under-the-influence conviction, which was punishable
                  under former NRS 484.3792(2) with a minimum term of not less than 2
                  years and a maximum term not more than 15 years.           Id. Although the
                  jury was instructed about only one count, a generic felony driving under
                  the influence count (labeled as count 1), the district court at sentencing
                  indicated that it was sentencing appellant as having a prior felony
                  conviction—count 2 of the information. The judgment of conviction,
                  however, mistakenly dismissed count 2 and imposed a sentence for count
                  1. Because it is clear from the record on appeal that the district court
                  intended appellant be punished under count 2 and because the sentence
                  imposed exceeded that authorized by former NRS 484.3792(1)(c) for count
                  1,2 we remand this matter to the district court to correct the clerical error



                        2A sentence of 30 to 84 months was authorized by former NRS
                  484.3792(2) for count 2. There is no indication in the record on appeal
                  that the district court had changed its mind from its comments at
                  sentencing that appellant was being punished as having a prior felony
                                                                   continued on next page...
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in the judgment of conviction to reflect that appellant was convicted of
count 2 and that count 1 was dismissed. Accordingly, we
            ORDER the judgment of the district court AFFIRMED and
REMAND for correction of the judgment of conviction as directed above. 3




                                     (itAA. ge,d-)r..1             J.
                                   Hardesty




                                                                   J.



cc: Hon. Douglas W. Herndon, District Judge
     Jay H. Cole
     Attorney General/Carson City
     Clark County District Attorney
     Eighth District Court Clerk




...continued
conviction. It appears that the clerical mistake arose from the fact that
the jury was presented with only one count to consider, the choice between
counts being a sentencing issue in this case.

       3 We have considered all proper person documents filed or received in
this matter. New facts and arguments presented to this court in the first
instance were not considered. We conclude that appellant is only entitled
to the relief described herein.



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