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State of Nebraska, appellee, v.

RaySean D. Barber, appe

___ 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 postconviction proceeding is procedurally barred is a question of law.

3. Effectiveness of Counsel. A claim that defense counsel provided ineffective 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 factual 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 independently 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 special 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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been 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 counsel 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 training 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 ineffectiveness 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, constitute an infringement of the defendant’s rights under the Nebraska or 

federal Constitution.

18. Postconviction: Proof. 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 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.
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Appeal from the District Court for Douglas County: 

J Russell Derr, Judge. Affirme

A. Michael Bianchi for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Pirtle, Riedmann, and Welch, Ju

Pirtle, Judge

I. INTRODUCTION

This is a postconviction appeal following a plea-based conviction 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 postconviction 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

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 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 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 attorney informed the court that Barber wished to withdraw his 
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previous plea of not guilty and enter a plea of no contest to 

the charge, and Barber pled no contest. The bill of exceptions reflects that during the plea colloquy, the court advised 

Barber that the State was required to prove that he intentionally 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 influence of a controlled substance and/or alcohol. His blood 

was tested, by virtue of him being transported for medical 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 voluntarily, 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.
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On 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 Pro

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 insufficient 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 proceeding”; (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 ineffective 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 
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and 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 intentionally.” 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 ‘intentionally’” 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 properly 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 regarding 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 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. State v. Alfredson, 
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287 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., citing 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 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 independently of 

the lower court’s decision. State v. Thorpe, supra.

V. ANALYSIS

1. Jurisdicti

[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 postconviction 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 hearing regarding the double jeopardy issue and which denied the 

ineffective assistance of counsel claim. Silvers appealed from 
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that 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 considered 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 evidentiary 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. 
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Barber’s notice of appeal, filed on June 9, 2017, is therefore 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 Factua

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 “unintentionally.” The court determined that Barber was properly advised, 

because the official record shows that the word “unintentionally” 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 anything 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 actually 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 litigated 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).
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3. Ineffective Assistance of 

[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 criminal 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 training 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 performance, the result of the proceeding would have been different. 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 
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contains 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 evidentiary 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 failing 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 information within the factual basis. Finally, he asserts counsel should 

have moved to dismiss the information because it did not satisfy 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 sufficiently 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 violation of Neb. Rev. Stat. §28-306(1)&(3)(b) a Class III Felony.” 

Even if an objection had been made, it would properly have 
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been 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 failing 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 support 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 probability 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 alcohol 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 vehicle, 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 adequately alleged causation. Defense counsel is not ineffective 

for failing to raise an argument that has no merit. See State v. 

Burries, supra.
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For these reasons, we find the district court did not err in 

denying postconviction relief on this issue without an evidentiary 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 appellate court).

(c) Ineffectiveness at 

Sentencing Hearing

In his motion for postconviction relief, Barber asserted that 

trial counsel made remarks at sentencing which were prejudicial. On appeal, Barber argues “counsel also proved ineffective 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 letter 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 letter to the sentencing that Barber had provided her.” Id. He 

suggests that he may have been “better off” handling the 
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sentencing 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 investigation] 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 ‘intentionally,’” 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.
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The 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 indication 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 appropriate 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 evidentiary hearing.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed