                appellant, the district court again denied appellant's claim. This appeal
                followed.
                            Appellant argues that the district court erred in denying his
                claim that counsel was ineffective in advising him to reject an early plea
                offer. To prove ineffective assistance of 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
                there is a reasonable probability that, but for counsel's errors, the outcome
                of the proceedings would have been different. Strickland v. Washington,
                466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
                P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of
                the inquiry 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). We
                give deference to the district court's factual findings if supported by
                substantial evidence and not clearly erroneous but 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 counsel was ineffective for advising him
                to reject the earlier plea offer where counsel explained that it was not a
                good deal since appellant was eligible for probation. We conclude that the
                district court erred in finding that appellant failed to demonstrate that
                counsel's performance was deficient. Appellant demonstrated the
                underlying facts by a preponderance of the evidence.
                            Appellant demonstrated that the State initially offered a more
                favorable plea deal, which expired at the preliminary hearing. Appellant
                testified in accordance with his pleadings that the State's earlier plea offer

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                was for appellant to plead guilty to the burglary count in exchange for the
                State dismissing the possession-of-burglary-tools count and stipulating to
                a sentence of 5 to 12.5 years (consistent with an adjudication as a "small"
                habitual criminal pursuant to NRS 207.010(1)(a)). Counsel did not
                specifically recall the offer but testified that that would have been a
                standard offer under appellant's circumstances and that such an offer was
                usually withdrawn once a case was taken to a preliminary hearing. The
                State has not disputed this either below or on appeal.
                            Appellant also demonstrated that counsel suggested he reject
                the offer. Appellant testified in accordance with his pleadings that counsel
                said it was a "lousy" deal and that he should reject it because burglary was
                a probationable offense. Counsel could not specifically recall the
                conversations around the offer, but his testimony at the hearing leant
                support to appellant's claim. Counsel testified that he would not, at such
                an early stage in the proceedings, have talked with appellant about
                pleading "straight up" to the burglary, which the initial plea offer would
                have required. Counsel also testified that he would have discussed
                probation with appellant no matter the likelihood of it. Counsel's
                statements on the record at a January 26, 2010, pre-plea hearing also
                supported appellant's claim. There, he told the district court that he had
                hoped to negotiate the case to a reduced offense and only later learned
                that appellant could not get probation. Appellant thus demonstrated by a
                preponderance of the evidence that counsel advised him to reject the
                initial plea offer because the burglary offense was probationable. 1


                      'The State concedes on appeal that counsel could have been
                ineffective if he knew of appellant's prior burglary convictions but still told
                appellant that his burglary charge was probationable. The State then
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                                 Counsel's advice, based on his belief of appellant's
                  probationability, was objectively unreasonable. Based on the crimes
                  charged, appellant was not eligible for probation. Appellant was charged
                  with one count of burglary and one count of possession of burglary tools.
                  Because appellant had prior convictions for burglary, he was not eligible
                  for probation on the burglary count. See NRS 205.060(2) ("A person who is
                  convicted of burglary and who has previously been convicted of
                  burglary. . . must not be released on probation."); NRS 176A.100(1)(a)
                  (prohibiting the district court from granting probation where it has been
                  expressly forbidden). 2



                  ...continued
                  argues that the district court found appellant's allegation that counsel
                  would do so to be "incredible." This was not the district court's finding.
                  Rather, the district court found it "incredible" that counsel would have
                  promised appellant that he was going to get probation. We note that the
                  record before this court demonstrates that appellant claimed only that
                  counsel promised to seek probation.

                        The State points to language in appellant's motion to withdraw his
                  guilty plea, filed six months after the instant petition, as support for its
                  argument that counsel did not advise appellant to reject the plea. That
                  language is unavailing because it was specific to the guilty plea that
                  appellant did enter and was irrelevant to the one that he rejected, which is
                  what is at issue in the instant appeal

                        2 The district court concluded that counsel was not deficient because
                  the burglary was a probationable offense since the State had not pleaded
                  the charge as a second-offense burglary and the sentencing court had not
                  adjudicated it as such. The district court was in error. An information
                  must contain only "a plain, concise and definite written statement of the
                  essential facts constituting the offense charged." NRS 173.075(1). The
                  fact or number of prior burglary convictions is not an element of the
                  offense. See NRS 205.060(1); cf. NRS 484C.400(1)(c) (providing that an
                  element of a felony charge of driving under the influence is two prior
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                                To the extent that the district court determined that counsel
                 was not deficient because he reasonably hoped to get the State to agree to
                 a probationable offense, the finding was not supported by the record. By
                 the time of the evidentiary hearing, counsel could recall very little of the
                 early negotiations and none of the details. However, statements he made
                 less than two months after the preliminary hearing indicate that counsel
                 had hoped for a plea offer to a reduced offense but that it was
                 unreasonable. At that January 26, 2010, hearing, counsel admitted that
                 he "hadn't noticed early on" that appellant had prior burglary convictions,
                 that he missed that the State had never offered any plea except to
                 habitual criminal treatment, and that "the DA was never going to agree to
                 reduce( ] it below a burglary." He also stated that this case had always
                 been prosecuted by the prosecution's repeat-offenders unit, and he
                 testified at the evidentiary hearing that that unit "would never agree to
                 probation. They never do." Accordingly, based on what counsel knew or
                 should have known at the time, he was objectively unreasonable in
                 advising appellant to reject the earlier plea offer in the hopes that counsel
                 could negotiate a plea offer for a probationable offense.
                                The district court's oral statements and written order indicate
                 that its conclusion that appellant failed to demonstrate prejudice was
                 based solely upon its erroneous conclusion that appellant failed to
                 demonstrate deficiency. Further, there is conflicting evidence in the

                 ...continued
                 offenses within seven years). Accordingly, the lack of a specific reference
                 to prior convictions in the pleadings was irrelevant to whether appellant
                 was eligible for probation. In this, the district court was correct in its
                 October 9, 2012, order, in which it found that "[appellant's] offense was
                 non-probational."

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                  record as to whether appellant would have accepted the earlier plea offer
                  but for counsel's deficient performance. 3 In light of the foregoing, we
                  remand this case to the district court to make applicable findings of fact
                  and to determine whether appellant demonstrated prejudice. Specifically,
                  the district court shall determine whether appellant demonstrated "a
                  reasonable probability [he] would have accepted the earlier plea offer had
                  [he] been afforded effective assistance of counsel ] . . . the plea would have
                  been entered without the prosecution canceling it or the trial court
                  refusing to accept it," and "the end result of the criminal process would
                  have been more favorable by reason of a plea to a lesser charge or a
                  sentence of less prison time." Missouri v. Frye, 566 U.S. , 132 S.
                  Ct. 1399, 1409 (2012).
                                Appellant also argues that he did not enter his guilty plea
                  knowingly or voluntarily. The law of the case is that appellant's guilty
                  plea was valid and that the totality of the circumstances indicated that he
                  understood the consequences of his plea.      Williams v. State, Docket No.
                  61739 (Order Affirming in Part, Reversing in Part and Remanding, May
                  13, 2013). "The doctrine of the law of the case cannot be avoided by a more
                  detailed and precisely focused argument subsequently made after
                  reflection upon the previous proceedings." Hall v. State, 91 Nev. 314, 316,
                  535 P.2d 797, 799 (1975).


                        3 Forexample, appellant's statements from a pre-guilty-plea hearing
                  suggested that he did not plead guilty because he felt that burglary should
                  only be a category C felony and not a category B felony as charged by the
                  State and required by statute. See NRS 205.060(b). However, at his
                  evidentiary hearing, appellant steadfastly asserted that he would have
                  accepted the earlier plea offer had he but known that probation was not an
                  option.

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                                 Finally, appellant argues that the district court impermissibly
                interfered with plea negotiations in violation of Cripps v. State, 122 Nev.
                764, 137 P.3d 1187 (2006). As this claim was not raised below, we need
                not consider it on appeal in the first instance.       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). Appellant's claim
                that the district court erred in denying his oral request to supplement his
                petition is of no avail as the statute authorizing the appointment of
                counsel does not require a motion on the part of counsel nor permission by
                the district court to file a supplemental petition within 30 days of
                appointment of counsel. NRS 34.750(3). Appellant did not allege, nor
                does the record demonstrate, that he attempted to file a supplemental
                petition.
                                 For the foregoing reasons, we
                                 ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order. 4




                                             Hardesty


                    D3476t
                    a
                Douglas
                         1                          J.




                        4 This
                           order constitutes our final disposition of this appeal. Any
                subsequent appeal shall be docketed as a new matter.

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                cc: Hon. Douglas W. Herndon, District Judge
                     Nguyen & Lay
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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