MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IRWIN, Judge.

I. INTRODUCTION

Seth J. Strasburg appeals an order of the district court for Custer County, Nebraska, denying Strasburg's motion for postconviction relief after conducting an evidentiary hearing. On appeal, Strasburg puts forth several assertions of ineffective assistance of counsel to support his claim to postconviction relief. We find no merit to any of these assertions, and we affirm. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

II. BACKGROUND

On June 22, 2006, an amended information was filed charging Strasburg with manslaughter, terroristic threats, and use of a firearm in the commission of a felony. Pursuant to a plea bargain, Strasburg entered pleas of no contest to the manslaughter and use of a firearm charges and the State dismissed the terroristic threats charge. Strasburg was represented at trial and on direct appeal by a deputy public defender.

The events giving rise to the charges occurred in the early hours of January 1, 2006, in Arnold, Nebraska. At that time, Strasburg encountered a group of five individuals, engaged in a conversation with them, and became upset when one of them made a comment about Strasburg's service in the military. Strasburg then pulled out a gun. The gun was pointed directly under the chin of one of the five individuals, a struggle ensued, and the gun discharged. Another of the five individuals was struck in the right cheek when the gun discharged, and he died as a result of the injury.

On February 20, 2008, Strasburg filed his motion seeking postconviction relief. New counsel was appointed to represent Strasburg in this proceeding. An evidentiary hearing was held, and the court received various exhibits, including transcriptions of proceedings leading to his convictions and sentencing and deposition testimony of Strasburg and his trial counsel. On February 11, 2010, the district court entered an order denying the motion. This appeal followed.

III. ASSIGNMENTS OF ERROR

Strasburg has assigned two errors on appeal challenging the district court's failure to grant postconviction relief and failure to find that his trial counsel was ineffective. Strasburg asserts that his trial counsel was ineffective in several respects: ineffectively advising Strasburg concerning potential defenses, erroneously failing to object or raise on direct appeal an alleged lack of factual basis to support Strasburg's plea to the use charge, erroneously advising Strasburg concerning the potential sentence on the use charge, and failing to review the presentence investigation report with Strasburg.

IV. ANALYSIS

In this appeal from the denial of postconviction relief, Strasburg challenges the district court's finding that he failed to demonstrate that his trial counsel's performance was ineffective. After reviewing Strasburg's arguments and the record presented, we find no merit to his assertions on appeal.

A defendant requesting postconviction 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. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009). A defendant moving for postconviction relief must allege facts which, if proven, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. Id.

A claim that defense counsel provided ineffective assistance of counsel presents a mixed question of law and fact. Id. 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. Thomas, supra.

As noted, Strasburg argues several respects in which he asserts that his trial counsel was ineffective. Strasburg asserts that his counsel ineffectively advised him concerning potential defenses, erroneously failed to object or raise on direct appeal an alleged lack of factual basis to support Strasburg's plea to the use charge, erroneously advised Strasburg concerning the potential sentence on the use charge, and failed to review the presentence investigation report with Strasburg.

1. POTENTIAL DEFENSES

Strasburg first asserts that his trial counsel erroneously advised him that neither intoxication nor posttraumatic stress disorder were available defenses to the charges of manslaughter or use of a weapon in the commission of a felony. Strasburg asserts that if he had known that the defenses could be used in this case, he would not have accepted a plea agreement. We find that the district court did not err in finding that Strasburg's counsel was not deficient in this regard.

The record includes deposition testimony of Strasburg's counsel. He testified that he had been a prosecutor for 3% years and had done trial work, including criminal defense work, for nearly 20 years. He was a deputy public defender at the time of his representation in this case. He testified that he personally met with Strasburg over 30 times in the course of his representation in this case and that the potential defenses of intoxication and posttraumatic stress disorder were discussed on numerous occasions.

Strasburg's counsel testified that there had been no testing of Strasburg's alcohol levels at the time of his arrest, that there was no evidence available concerning what his intoxication levels might have been, and that there was a tape recording of Strasburg in which he sounded coherent. He testified that proving an alcohol level to support the use of an intoxication defense would have been problematic and that he did not feel that the defense would have been successful on the facts of this case.

Strasburg's counsel's testimony indicated that Strasburg was somewhat reluctant to embrace the possibility that he suffered from posttraumatic stress disorder. Counsel testified that although Strasburg did not absolutely deny that he might have suffered from posttraumatic stress disorder, he did not push it as a defense. He testified that he did not believe it would have been successful if pursued as a form of defense on the facts of this case.

The district court found Strasburg's counsel's opinion that the defenses were not likely to be successful to be a reasonable opinion on the facts of this case. The court noted that evidence indicated that Strasburg's actions both before and after the shooting of the victim in this case indicated that his mental abilities were not so far overcome by alcohol that he could not have had the required intent to commit a terroristic threat and that there was no evidence to indicate that he was delusional or that his actions were a mistake of some kind caused by a mental condition associated with posttraumatic stress disorder. Our review of the record does not support a finding that these factual conclusions were clearly erroneous, and we find no error in the court's legal conclusion that Strasburg's counsel was not deficient for concluding that the defenses were not likely to be successful in this case. This assigned error is without merit.

2. FACTUAL BASIS

Strasburg next asserts that his counsel was deficient for failing to object or raise on direct appeal that there was not a sufficient factual basis presented to support his no contest plea on the use of a firearm charge. Upon our review of the plea hearing, we conclude that this assignment of error is without merit.

As noted, Strasburg was charged with manslaughter, terroristic threats, and use of a weapon in the commission of a felony. Pursuant to a plea bargain, the State dismissed the terroristic threats charge in exchange for Strasburg's no contest pleas to the manslaughter and use charges, and the State amended the use charge to specifically indicate that the underlying felony to support the use charge was the dismissed terroristic threats charge.

When the court took the pleas, the court asked the State to present a factual basis to support the manslaughter charge. When the State inquired if the court wanted the factual basis for both the manslaughter and the use charges, the court indicated, "let's do [the manslaughter charge] and then [the use charge]." The State then presented the following factual basis:

After the above factual basis was presented, the court indicated that it was finding "beyond a reasonable doubt that a factual basis exists for [Strasburg's] pleas of no contest." There was no additional or separate factual basis presented specifically explaining the use charge.

We first acknowledge that the factual basis presented by the State in this case is not a model of clarity. The State's use of the masculine pronoun in the midst of a discussion of events concerning a number of male participants and use of passive voice was certainly not as clear as it could have been. For example, as the factual basis was presented, it is not completely clear that the "he" who pulled out a gun was Strasburg, nor is there ever a clear indication that Strasburg was the one who "pulled back" Nansel's head and pointed a gun under Nansel's chin.

Nonetheless, we find that the factual basis presented was sufficient to support both the manslaughter charge and the use of a weapon charge. There is no assertion by Strasburg that the factual basis was insufficient to support his no contest plea to the charge of manslaughter. As such, the factual basis must be read in light of Strasburg's acknowledgment that the factual basis indicates that he was the one who pulled out a gun and that he was the one who pulled back Nansel's head and pointed a gun under Nansel's chin; this construction is the only construction that would support Strasburg's plea to the manslaughter charge, which he is not challenging. That construction also supports a plea to Strasburg's having used the gun to commit a terroristic threat. See State v. Curlile, 11 Neb.App. 52, 642 N.W.2d 517 (2002) (reasonable person could conclude actions constituted threat for terroristic threat charge).

We find no error in the district court's conclusion that counsel was not ineffective for failing to object to the factual basis or for failing to raise the matter on direct appeal. We find no merit to this assignment of error.

3. ADVICE ON SENTENCING

Strasburg next asserts that his trial counsel erroneously led him to believe that the sentence on the use of a firearm charge would be somewhere in the range of 0 to 5 years because that was the appropriate range for the predicate felony of terroristic threats, notwithstanding the statutorily prescribed sentence range of 1 to 50 years' imprisonment for use of a weapon in the commission of a felony. We find no merit to this assertion.

Strasburg's counsel testified that he had discussed the potential sentencing ranges with Strasburg numerous times over the course of several months prior to the entry of the plea and that the potential sentencing ranges were explained to Strasburg in open court. He testified that he had told Strasburg that, in his professional opinion, the fact the use charge was attached to the felony of terroristic threats rather than the commission of a felony murder may result in the use not being treated as harshly at sentencing. The record also indicates that, at the time Strasburg entered his plea, the court specifically advised Strasburg that the potential range of penalties for the use charge was 1 to 50 years' imprisonment and that any sentence imposed on the use charge would have to be served consecutively to any sentence imposed on the manslaughter charge. We find no error in the district court's conclusion that counsel was not ineffective with respect to advising Strasburg about sentencing, and we find no merit to this assignment of error.

4. REVIEW OF PRESENTENCE REPORT

Finally, Strasburg asserts that his counsel was ineffective for failing to review the entire presentence report with him in person prior to sentencing. Specifically, Strasburg asserts that he would have challenged one of the probation evaluations and would have challenged the accuracy or weight to be given to some of the letters submitted to the court for consideration. Upon our review of the record, we find no merit to this assignment of error.

Strasburg's counsel testified that he personally reviewed the entire presentence report while it was in the possession of the probation office and that he took approximately eight pages worth of notes that were later specifically reviewed and discussed with Strasburg. He testified that the presentence report is generally not allowed to be removed from the probation office and that general practice in the district is not to physically review the entire report with a defendant.

Neb. Rev. Stat. § 29-2261(6) (Reissue 2008) provides that "[t]he court may permit inspection of the 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." (Emphasis supplied.) It is clear from the plain language of the statute that, as the district court found in this case, the statute does not require an attorney to physically review the entire presentence report with the defendant. A review of the record also supports the district court's conclusion that Strasburg failed in this case to demonstrate what other evidence he would have offered to contradict the material in the presentence report that he now objects to and that he failed to demonstrate that any different sentence was likely to be imposed. We find no merit to this assignment of error.

V. CONCLUSION

We find no merit to Strasburg's assignments of error concerning the alleged ineffectiveness of his trial counsel. We affirm.

AFFIRMED.