State v. Barber ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/02/2018 08:38 AM CDT
- 339 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339State of Nebraska, appellee, v.
R aySean D. Barber, appellant.
___ N.W.2d ___
Filed September 25, 2018. No. A-17-610.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent from the lower court’s decision.
2. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law.
3. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews the fac-
tual findings of the lower court for clear error.
5. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
6. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
7. Final Orders: Appeal and Error. The three types of final orders which
may be reviewed on appeal under the provisions of Neb. Rev. Stat.
§ 25-1902 (Reissue 2016) are (1) an order which affects a substantial
right in an action and which in effect determines the action and prevents
a judgment, (2) an order affecting a substantial right made during a spe-
cial proceeding, and (3) an order affecting a substantial right made on
summary application in an action after a judgment is rendered.
8. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were or could have
- 340 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339been litigated on direct appeal, no matter how those issues may be
phrased or rephrased.
9. Postconviction: Pleas: Waiver. Normally, a voluntary guilty plea
waives all defenses to a criminal charge.
10. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction
proceeding brought by a defendant because of a guilty plea or a plea of
no contest, a court will consider an allegation that the plea was the result
of ineffective assistance of counsel.
11. Right to Counsel: Plea Bargains. The plea-bargaining process presents
a critical stage of a criminal prosecution to which the right to coun-
sel applies.
12. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defendant.
13. ____: ____. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area.
14. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In
determining whether trial counsel’s performance was deficient, there is
a strong presumption that counsel acted reasonably.
15. Effectiveness of Counsel: Proof. To show prejudice, the defendant
must demonstrate reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
16. Postconviction: Effectiveness of Counsel: Proof. The defendant has
the burden in postconviction proceedings of demonstrating ineffective-
ness of counsel, and the record must affirmatively support that claim.
17. Postconviction: Constitutional Law: Proof. A court must grant an
evidentiary hearing to resolve the claims in a postconviction motion
when the motion contains factual allegations which, if proved, consti-
tute an infringement of the defendant’s rights under the Nebraska or
federal Constitution.
18. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
19. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
20. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
- 341 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339Appeal from the District Court for Douglas County:
J Russell Derr, Judge. Affirmed.
A. Michael Bianchi for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and Welch, Judges.
Pirtle, Judge.
I. INTRODUCTION
This is a postconviction appeal following a plea-based con-
viction for motor vehicle homicide. RaySean D. Barber was
sentenced to 20 to 20 years’ imprisonment, and his conviction
and sentence were summarily affirmed on direct appeal.
A hearing was held because a mistake appeared in the bill of
exceptions. On December 2, 2016, the district court overruled
the first claim in Barber’s second amended motion for postcon-
viction relief. On May 10, 2017, the district court overruled
the remaining claims in Barber’s second amended motion for
postconviction relief. Barber now appeals the May 10 order.
We affirm.
II. BACKGROUND
1. Plea Hearing and Direct A ppeal
On April 15, 2013, Barber was charged by information with
one count of motor vehicle homicide in the death of Betty
Warren. The information alleged:
On or about 3 February 2013, in Douglas County,
Nebraska, . . . BARBER did then and there unintention-
ally cause the death of . . . WARREN while engaged in
the unlawful operation of a motor vehicle, and while in
violation of section 60-6,196 or 60-6,197.06, in violation
of Neb. Rev. Stat. §28-306(1)&(3)(b) a Class III Felony.
A plea hearing was held on June 24, 2013. Barber’s attor-
ney informed the court that Barber wished to withdraw his
- 342 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339previous plea of not guilty and enter a plea of no contest to
the charge, and Barber pled no contest. The bill of excep-
tions reflects that during the plea colloquy, the court advised
Barber that the State was required to prove that he intention-
ally caused the death of the victim, when the State actually
had to prove that he unintentionally caused the death of
the victim.
The following factual basis was presented in support of
the charge:
On February 3rd, 2013, here in Douglas County,
Nebraska, [Barber] was observed by witnesses traveling
southbound on Saddle Creek Road in excess of the
speed limit. [Barber] approached the area of Saddle
Creek and Poppleton Streets, where he was traveling
approximately 98 miles per hour in a 35-miles-per-hour
zone. [Barber] hit a curb, allowing him to lose control
of his vehicle. He struck another car being driven by
. . . Warren. . . . Warren was pronounced dead. An
autopsy conducted by the Douglas County Coroner
revealed that she died of internal injuries attributable to
this car accident.
The police suspected that [Barber] was under the influ-
ence of a controlled substance and/or alcohol. His blood
was tested, by virtue of him being transported for medi-
cal treatment, where he had a blood alcohol content of
a .146.
All these events occurred here in Douglas County,
Nebraska.
The district court found beyond a reasonable doubt that
Barber understood the nature of the charge against him and
the plea was made freely, knowingly, intelligently, and volun-
tarily, and that there was a factual basis to support the plea.
The court accepted Barber’s plea and found him guilty.
A sentencing hearing was held on October 1, 2013. After
statements from the attorneys and Barber, the court sentenced
Barber to 20 to 20 years’ imprisonment.
- 343 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339On direct appeal, the sole assignment of error was that the
district court erred by imposing an excessive sentence. This
court summarily affirmed Barber’s conviction and sentence.
See State v. Barber, 21 Neb. App. xli (No. A-13-866, Jan.
23, 2014).
2. Postconviction Proceedings
After his conviction and sentence, Barber filed his first
motion for postconviction relief on February 27, 2015. He
amended his motion a number of times.
The most recent amended motion for postconviction relief,
titled “Second Amended Motion for Post-Conviction Relief,”
was filed on October 17, 2016. In it, he alleges: (1) The trial
court abused its discretion in failing to properly advise him of
the nature of the charge; (2) “Plaintiff erred where he failed
to make a distinct allegation of each essential element of the
charge in the factual basis”; (3) trial counsel was ineffective
for failing to move to dismiss the information, as it was insuf-
ficient and could not be used to convict him of the charged
crime; (4) trial counsel was ineffective for failing to recuse
herself; (5) trial counsel was ineffective for “making remarks
against [Barber] which prejudiced the sentencing proceed-
ing”; (6) trial counsel was ineffective for failing to bring
an apology letter to the court and making certain statements
with regard to the letter; and (7) trial counsel was ineffec-
tive for failing to review the presentence investigation report
with Barber.
At a preliminary hearing on February 16, 2016, the State’s
attorney indicated that she had spoken to the court reporter and
that, based on the court reporter’s notes, the bill of exceptions
contained an error in the advisement regarding the elements of
the charged offense. Another preliminary hearing was held on
June 28, and the court determined that an evidentiary hearing
should be held.
On August 12, 2016, the State called the court reporter to
testify. The court reporter testified that the bill of exceptions
contained a mistake. She reviewed the section in question
- 344 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339and found that there was a “mistranslate in the steno notes.”
The “steno notes” are the official record, and when they were
edited, she mistakenly “took off the ‘un’ that was clearly in
[her] notes.” The prefix “should have attached to intention-
ally.” The court reporter checked her “backup audio which
[was] synced with [her] steno notes” and found the court
“clearly stated the word ‘unintentionally’ rather than ‘intention-
ally’” at that point in the plea colloquy.
On December 2, 2016, the district court overruled Barber’s
postconviction motion on the issue of whether he was prop-
erly advised at the time he entered his plea. Barber did not
appeal from this order.
The district court held a hearing on the State’s motion to
dismiss, and Barber was given the opportunity to respond to
the State’s motion in writing. On May 10, 2017, the district
court overruled Barber’s October 17, 2016, amended motion
for postconviction relief in all respects. Barber filed a notice of
appeal from the May 10, 2017, hearing on June 9.
III. ASSIGNMENTS OF ERROR
Barber assigns that the district court erred in denying him
due process of law because he was improperly advised regard-
ing the elements of the charged crime and in granting the
State a hearing to amend the record, but failing to award him
an evidentiary hearing on the remaining claims in his motion
for postconviction relief. He assigns that the district court
erred in accepting his no contest plea without a sufficient
factual basis to support it. He asserts the district court erred
in failing to find that trial counsel was ineffective with regard
to “various matters occurring at Barber’s plea hearing and in
relation to Barber’s sentencing.”
IV. STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision. State v. Alfredson,
- 345 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339287 Neb. 477, 842 N.W.2d 815 (2014). Whether a claim raised
in a postconviction proceeding is procedurally barred is a
question of law. State v. Thorpe, 290 Neb. 149, 858 N.W.2d
880 (2015).
[3-5] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. Id., cit-
ing State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014).
When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower
court for clear error. Id. With regard to the questions of coun-
sel’s performance or prejudice to the defendant as part of the
two-pronged test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appel-
late court reviews such legal determinations independently of
the lower court’s decision. State v. Thorpe, supra.
V. ANALYSIS
1. Jurisdiction
[6,7] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. State v. Alfredson,
supra. The three types of final orders which may be reviewed
on appeal under the provisions of Neb. Rev. Stat. § 25-1902(Reissue 2016) are (1) an order which affects a substantial
right in an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after a judgment is rendered. State v. Silvers, 255 Neb. 702,
587 N.W.2d 325 (1998).
In State v. Silvers, supra, Thomas Silvers sought postcon-
viction relief on two theories: double jeopardy and ineffective
assistance of counsel. The district court filed an order which
allowed the State 30 days to show cause or request a hear-
ing regarding the double jeopardy issue and which denied the
ineffective assistance of counsel claim. Silvers appealed from
- 346 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339that order. In the opinion, the Nebraska Supreme Court began
by stating: “Because the district court left the issue of double
jeopardy open to further proceedings and Silvers filed his
appeal during that timeframe, we must first consider whether
there is a final appealable order.” Id. at 708, 587 N.W.2d at
331. The Supreme Court found that the order from which
Silvers appealed “clearly affected a substantial right,” id.,and determined that a postconviction action should be consid-
ered a “special proceeding” within the context of § 25-1902.
Therefore, the Supreme Court found the order of the district
court denying Silvers’ claim for postconviction relief on the
ineffective assistance of counsel claim was appealable under
§ 25-1902.
In this case, the district court entered two separate orders
denying Barber’s postconviction claims. The first order was
issued on December 2, 2016, and the court addressed Barber’s
claim that he was not properly advised by the court in the
plea dialogue of the elements of the offense for which he was
convicted. In the December 2 order, the court found that there
was an error in the transcription of the bill of exceptions and
that the court reporter’s notes and the tape recording of the
dialogue establish the court properly advised Barber of the
elements of the charged offense. Therefore, the district court
found: “[Barber’s] Motion for Postconviction Relief on this
claim must fail.” The court overruled Barber’s motion for
postconviction relief on this issue. The second order, entered
on May 10, 2017, denied the remaining claims without an evi-
dentiary hearing.
Following the reasoning set forth in State v. Silvers, supra,the December 2, 2016, order denying postconviction relief on
Barber’s first claim was an order which affected a substantial
right in a special proceeding. Under Neb. Rev. Stat. § 25-1912(Reissue 2016), to obtain a reversal, vacation, or modification
of judgments and decrees rendered or final orders made by
the district court, a notice of appeal must be filed within 30
days after the entry of such judgment, decree, or final order.
- 347 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339Barber’s notice of appeal, filed on June 9, 2017, is there-
fore untimely with respect to the December 2, 2016, order.
Barber’s right to appeal the December 2 order is time barred.
Accordingly, our jurisdiction extends only to the assignments
of error related to the postconviction claims which were
denied in the May 10, 2017, order, as to which the appeal
is timely.
2. Insufficient Factual Basis
Barber alleges the district court erred and denied him due
process of law when it denied his claim that the plea was
“infirm as a result of an insufficient factual basis to support it.”
Brief for appellant at 19.
First, Barber argues that the factual basis was insufficient
because he was not properly advised of the elements of the
crime because the bill of exceptions reflected that the word
“intentionally” was used in the place of the word “unintention-
ally.” The court determined that Barber was properly advised,
because the official record shows that the word “unintention-
ally” was used, even though it was not reflected in the bill of
exceptions. Barber did not appeal from the December 2, 2016,
order, and therefore, this issue is time barred.
Further, Barber asserts the State “neglected to mention any-
thing about causation in the factual basis.” Brief for appellant
at 20. Thus, he argues, “[T]he court accepted a guilty plea
without an adequate factual basis as to how . . . Warren actu-
ally died.” Id. at 20-21.
[8] A motion for postconviction relief cannot be used to
secure review of issues which were or could have been liti-
gated on direct appeal, no matter how those issues may be
phrased or rephrased. State v. Thorpe, 290 Neb. 149, 858
N.W.2d 880 (2015). Barber’s claim that the factual basis was
insufficient with regard to causation could have been raised
on direct appeal, therefore this claim is procedurally barred.
See id. See, also, State v. Boppre, 280 Neb. 774, 790 N.W.2d
417 (2010).
- 348 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 3393. Ineffective Assistance of Counsel
[9,10] Normally, a voluntary guilty plea waives all defenses
to a criminal charge. State v. Yos-Chiguil, 281 Neb. 618, 798
N.W.2d 832 (2011). However, in a postconviction proceeding
brought by a defendant because of a guilty plea or a plea of
no contest, a court will consider an allegation that the plea was
the result of ineffective assistance of counsel. Id.[11] Barber assigns that the district court erred by failing to
determine that his counsel was ineffective in several respects.
The plea-bargaining process presents a critical stage of a crimi-
nal prosecution to which the right to counsel applies. State v.
Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). As in any
other ineffective assistance of counsel claim, we begin by
reviewing Barber’s allegations under the two-part framework
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).
[12-14] To prevail on a claim of ineffective assistance
of counsel under Strickland, the defendant must show that
counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defendant. State v.
Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013). To show
deficient performance, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area. Id. In determining
whether trial counsel’s performance was deficient, there is
a strong presumption that counsel acted reasonably. State v.
McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
[15,16] To show prejudice, the defendant must demonstrate
reasonable probability that but for counsel’s deficient per­
formance, the result of the proceeding would have been differ-
ent. State v. Vanderpool, supra. The defendant has the burden
in postconviction proceedings of demonstrating ineffectiveness
of counsel, and the record must affirmatively support that
claim. Id.[17,18] A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
- 349 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the Nebraska or
federal Constitution. State v. Thorpe, supra. If a postconviction
motion alleges only conclusions of fact or law, or if the records
and files in the case affirmatively show that the defendant is
entitled to no relief, the court is not required to grant an evi-
dentiary hearing. Id. Thus, in a postconviction proceeding, an
evidentiary hearing is not required (1) when the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights; (2) when
the motion alleges only conclusions of fact or law; or (3) when
the records and files affirmatively show that the defendant is
entitled to no relief. Id., citing State v. Phelps, 286 Neb. 89,
834 N.W.2d 786 (2013).
(a) Failure to Object
Barber asserts that trial counsel was ineffective for fail-
ing to object to the information. He asserts trial counsel
should have objected to the information because it “fail[ed] to
allege that the proximate cause of the death of [Warren] was
[Barber’s] operating a motor vehicle in violation of §60-6,196
or §60-6,197.06.” He asserts that trial counsel should have
objected when the court improperly advised him of the nature
of the charge and that the State alleged insufficient informa-
tion within the factual basis. Finally, he asserts counsel should
have moved to dismiss the information because it did not sat-
isfy the requirements of Neb. Rev. Stat. § 28-306(1) and (3)(b)
(Cum. Supp. 2014).
[19] A review of the information shows that the State suf-
ficiently charged the crime of motor vehicle homicide under
§ 28-306. The information alleged that Barber “did then and
there unintentionally cause the death of . . . WARREN while
engaged in the unlawful operation of a motor vehicle, and
while in violation of section 60-6,196 or 60-6,197.06, in viola-
tion of Neb. Rev. Stat. §28-306(1)&(3)(b) a Class III Felony.”
Even if an objection had been made, it would properly have
- 350 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339been overruled, and even if the issue had been preserved and
raised on appeal, it would not have resulted in a reversal of
Barber’s conviction. Defense counsel is not ineffective for fail-
ing to raise an argument that has no merit. See State v. Burries,
297 Neb. 367, 900 N.W.2d 483 (2017).
Even though the bill of exceptions contained an error, the
record shows that the court properly advised Barber regarding
the nature of the charge during the plea colloquy. Because
Barber was properly advised, we cannot find trial counsel was
deficient because she did not object to the advisement during
the plea colloquy.
Barber asserts that the factual basis was insufficient to sup-
port his conviction. This issue was addressed in the December
2, 2016, order, from which Barber did not appeal. If this issue
had been preserved, we find that Barber cannot show that but
for counsel’s failure to object, there is a reasonable probabil-
ity that the outcome would have been different.
From our review of the record, the State provided an
adequate factual basis with regard to causation. Section
28-306(1) provides that a person who causes the death of
another unintentionally while engaged in the operation of a
motor vehicle in violation of the law of the State of Nebraska
or in violation of any city or village ordinance commits
motor vehicle homicide. The State asserted that Barber was
driving in excess of the speed limit and had a blood alco-
hol content of .146, which exceeds the statutory limit for
a person in actual physical control of a motor vehicle. See
Neb. Rev. Stat. § 60-6,196(1) (Reissue 2010). The State
asserted that Barber struck a curb, lost control of his vehi-
cle, and struck Warren’s vehicle. The State asserted that the
autopsy revealed that Warren died as a result of the injuries
which were attributable to the accident. These facts ade-
quately alleged causation. Defense counsel is not ineffective
for failing to raise an argument that has no merit. See State v.
Burries, supra.- 351 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339For these reasons, we find the district court did not err in
denying postconviction relief on this issue without an eviden-
tiary hearing.
(b) Failure to Recuse Herself
In his motion for postconviction relief, Barber asserted that
his counsel should have recused herself due to a conflict of
interest. This issue was not addressed in his brief on appeal.
Accordingly, we will not address this issue. See State v.
Henry, 292 Neb. 834, 875 N.W.2d 374 (2016) (alleged error
must be both specifically assigned and specifically argued
in brief of party asserting error to be considered by appel-
late court).
(c) Ineffectiveness at
Sentencing Hearing
In his motion for postconviction relief, Barber asserted that
trial counsel made remarks at sentencing which were prejudi-
cial. On appeal, Barber argues “counsel also proved ineffec-
tive at and in relation to sentencing.” Brief for appellant at
25. He then refers to statements the district court made before
pronouncing Barber’s sentence. He also argues that counsel
“made a number of comments” at sentencing which “hardly
cast [him] in a more positive light.” Brief for appellant at 27.
He argues that counsel’s performance did not rise to the level
of a criminal defense attorney with ordinary training and skill
in criminal law. However, Barber does not specifically assign
and specifically argue which of trial counsel’s statements were
inappropriate or how he was prejudiced.
In his motion for postconviction relief, Barber also asserted
that trial counsel was ineffective for failing to bring a let-
ter to the court at the time of sentencing, an error which he
asserted caused a number of issues for him at sentencing. On
appeal, he asserts “counsel failed to bring an apology let-
ter to the sentencing that Barber had provided her.” Id. He
suggests that he may have been “better off” handling the
- 352 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339sentencing hearing on his own, id., but he does not go into
detail regarding the contents of the letter or how it may have
helped him.
[20] An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error to be considered by an appellate court. State v.
Henry, supra. Because neither of these arguments with regard
to counsel’s performance at sentencing were specifically
assigned and specifically argued, we do not reach the merits
of these issues.
(d) Failure to Review Presentence
Investigation Report
Barber asserts trial counsel was ineffective for failing to
review the presentence investigation report with him. Neb.
Rev. Stat. § 29-2261(6) (Cum. Supp. 2014) provides, in part,
that a court “may permit inspection of the [presentence inves-
tigation] report or examination of parts thereof by the offender
or his or her attorney, or other person having a proper interest
therein, whenever the court finds it is in the best interest of
a particular offender.” The plain language of the statute does
not require an attorney to review the presentence investigation
report with a defendant.
Barber asserts that counsel’s failure to review the contents
of the presentence investigation report with him prejudiced him
“[f]or no other inference can be drawn by the district court’s
comments on the subject at sentencing and the maximum
sentence it handed down.” Brief for appellant at 27. Barber
appears to argue that the court “truly had used the word ‘inten-
tionally,’” id. at 26, and that he was sentenced more harshly as
a result. In other portions of his argument Barber argues that
if trial counsel had “challenged” the court, id., the court would
have been on notice that Barber lacked the intent to commit
this crime, that he lacked criminal history and education, and
that he has been affected by injuries as a result of the crash on
February 3, 2013.
- 353 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. BARBER
Cite as 26 Neb. App. 339The issue in the bill of exceptions was addressed in the
December 2, 2016, order, from which Barber did not appeal.
The information contains the word “unintentionally,” and the
official record kept by the court reporter indicates the court
used the correct word at the plea hearing. There is no indica-
tion that the court needed to be “challenged” or reminded of
the information contained in the presentence investigation
report. Further, the record shows that “[i]n crafting an appro-
priate sentence,” the court weighed the appropriate factors
and the decision was most affected by Barber’s blood alcohol
content and the speed at which he was traveling when he
lost control of the vehicle. Barber cannot show that he was
prejudiced by counsel’s alleged failure to review the contents
of the presentence investigation report with him prior to the
sentencing hearing. Thus, we find the court did not err in
denying postconviction relief on this issue, without an eviden-
tiary hearing.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.