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State v. McDermott4/9/2004
docket pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
ASSIGNMENTS OF ERROR
McDermott assigns, restated, that the district court erred in determining that he was not deprived of effective assistance of counsel and therefore denying his motion for post-conviction relief. He argues that he was denied his Sixth Amendment right to effective assistance of counsel when his attorney (1) failed to adequately review the presentence report with him and failed to determine if the report accurately set forth his criminal record, (2) failed to determine whether his criminal record would support a habitual criminal charge and advised him to enter an illusory plea agreement dismissing that charge, and (3) failed to advise him that his prior criminal record would not support a habitual criminal charge, thereby resulting in his guilty plea to the controlled substance charge not being entered knowingly, intelligently, and voluntarily.
STANDARD OF REVIEW
A defendant requesting post-conviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
ANALYSIS
[2,3] The Nebraska Post-conviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1995), is available to a defendant to show that his or her conviction was obtained in violation of his or her constitutional rights. State v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002); State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000). McDermott's post-conviction claims are based solely upon alleged deprivation of his constitutional right to effective assistance of counsel. Normally, a voluntary guilty plea waives all defenses to a criminal charge. However, in a post-conviction action brought by a defendant convicted because of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. State v. Gonzalez-Faguaga, supra; State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002). Because McDermott was represented by his trial counsel on direct appeal, he is not procedurally barred from asserting a post-conviction claim alleging ineffective assistance of counsel. See, State v. Gonzalez-Faguaga, supra; State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
[4,5] Under the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), in order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Buckman, supra. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice. Id.; State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
[6,7] To demonstrate that his or her counsel's performance was deficient, a defendant must show that counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area. State v. Gonzalez-Faguaga, supra; State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002). In an evidentiary hearing for post-conviction relief, the post-
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