                      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                      which prevented him from accepting the offer before it was withdrawn.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 post-
                      conviction 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.



SUPREME COURT
        OF
     NEVADA
                                                            2
(0) I947A    def#1>
                                 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. 2 In light of this

                 conflicting evidence, hive fails to demonstrate a reasonable probability


                       2 Irivenow 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.



SUPREME COURT
        OF
     NEVADA
                                                        3
(0) 1947A    e
                     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

SUPREME COURT
         OF
      NEVADA
                                                            4
(0). 1947A    4e0.
                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



                                                                                      J.
                                                     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




                      3 Irive
                            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.



SUPREME COURT
        OF
     NEVADA
                                                       5
(0) I947A
