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06/19/2020 09:08 AM CDT




                                                        - 835 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                 STATE v. ARCHIE
                                                 Cite as 305 Neb. 835




                                        State of Nebraska, appellee, v.
                                         David L. Archie, appellant.
                                                   ___ N.W.2d ___

                                          Filed May 15, 2020.     No. S-19-930.

                 1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 2. Sentences. When imposing a sentence, the sentencing court is to con-
                    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
                    ence, (4) social and cultural background, (5) past criminal record or
                    record of law-abiding conduct, and (6) motivation for the offense, as
                    well as (7) the nature of the offense, and (8) the amount of violence
                    involved in the commission of the crime. The sentencing court is not
                    limited to any mathematically applied set of factors.
                 3. ____. The appropriateness of a sentence is necessarily a subjective judg-
                    ment and includes the sentencing judge’s observation of the defendant’s
                    demeanor and attitude and all the facts and circumstances surrounding
                    the defendant’s life.
                 4. Effectiveness of Counsel: Appeal and Error. Assignments of error
                    on direct appeal regarding ineffective assistance of trial counsel must
                    specifically allege deficient performance, and an appellate court will not
                    scour the remainder of the brief in search of such specificity.
                 5. Appeal and Error. The purpose of an appellant’s reply brief is to
                    respond to the arguments the appellee has advanced against the errors
                    assigned in the appellant’s initial brief.

                  Appeal from the District Court for Lancaster County: Darla
               S. Ideus, Judge. Affirmed.

                 Joe Nigro, Lancaster County Public Defender, and Mark D.
               Carraher for appellant.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. ARCHIE
                        Cite as 305 Neb. 835

   Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Papik, J.
   David L. Archie appeals his conviction and sentence follow-
ing his no contest plea to a charge of attempted first degree
sexual assault. He contends that his sentence was excessive and
that he received ineffective assistance of counsel in the district
court proceedings. We conclude that the district court did not
abuse its discretion in sentencing Archie. And because Archie
did not specifically allege deficient performance of counsel
as required by State v. Mrza, 302 Neb. 931, 926 N.W.2d 79
(2019), we do not consider his claim that he received ineffec-
tive assistance of counsel.
                        BACKGROUND
Archie’s Plea and Conviction.
   Archie was initially charged in this case with first degree
sexual assault. The information filed by the State alleged that
between March 12, 1996, and April 6, 2004, he subjected T.A.
to sexual penetration. According to the information, Archie was
over 19 years of age and T.A. was under 16 years of age during
this timeframe.
   Archie and the State later reached a plea agreement. As part
of the plea agreement, the State filed an amended information
charging Archie with attempted first degree sexual assault. The
amended information alleged that during the same time period
referenced in the initial information, Archie attempted to sub-
ject T.A. to sexual penetration. Archie pleaded no contest to
the amended information.
   When asked by the court to provide a factual basis for the
plea, the prosecutor described an investigation that began in
February 2019 when T.A. filed a report with law enforcement
alleging that Archie had sexually assaulted her when she was
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. ARCHIE
                        Cite as 305 Neb. 835

a child. T.A. reported that Archie subjected her to sexual pen-
etration in various forms and in various locations in Lincoln,
Nebraska, beginning when she was 7 years old and continu-
ing until she was 15 years old. In addition, after T.A. reported
the assaults to law enforcement, she recorded a telephone
conversation with Archie in which Archie admitted to having
sexual intercourse with her when she was between 10 and 15
years old.
   The district court accepted Archie’s no contest plea, found
him guilty of attempted first degree sexual assault, and sched-
uled a sentencing hearing.

Sentencing.
   At the sentencing hearing, Archie’s counsel argued for a
lenient sentence. He emphasized that Archie’s conviction was
for conduct that occurred more than 15 years prior and argued
that Archie “is a different person than he was 15 years ago.”
He contended that Archie no longer had a drinking problem.
He also directed the district court’s attention to a letter he
submitted to the district court and which was included in the
presentence investigation report. Aside from a few months in
which Archie was released on parole, he was incarcerated for
another conviction between 2004 and 2019. The letter refer-
enced various programs Archie had completed while incar-
cerated, including recovery programs for sex offenders and
substance abusers.
   Before pronouncing Archie’s sentence, the district court
stated on the record that it had considered the presentence
investigation report and all of the factors that trial courts
are to consider in choosing an appropriate sentence. The
district court then specifically addressed Archie’s argument
that he had been rehabilitiated while incarcerated for another
conviction:
         I understand it is your position that this happened many
      years ago, before you were incarcerated, and that you
      have been rehabilitated while you are — while you have
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                         STATE v. ARCHIE
                         Cite as 305 Neb. 835

     been in prison. You have produced some certificates and
     indicated you have taken a number of classes. I think that
     in some respects you have probably benefited from the
     incarceration and grown from that.
        However, sir, I read the transcript of the phone con-
     versations you had with [the] victim. And those, quite
     frankly, tell a very different story. Sir, in the transcripts,
     based upon your statements and your reaction to the dis-
     cussions you were having, you showed a complete lack of
     insight or understanding of the depravity of your conduct
     toward the victim. You talked about sexually assaulting a
     child as young as seven years old like you were reminisc-
     ing about good times. And more than once you told her
     that she had seduced you and you proudly recalled spe-
     cifics about having sex with a pre-adolescent child. You
     talked about the things you had taught her. All of those
     things, sir, your words and your reaction to that discus-
     sion tell me very clearly you have not been rehabilitated
     when it comes to you being a sexual predator of children.
     I think if you are not incarcerated you absolutely will
     continue to be a danger to the community and children
     that you are exposed to.
  The district court thereafter sentenced Archie to 18 to 20
years’ imprisonment. Archie appealed.

                 ASSIGNMENTS OF ERROR
   Archie assigns two errors on appeal. He claims (1) that
the district court abused its discretion by imposing an exces-
sive sentence and (2) that he was denied effective assistance
of counsel.

                  STANDARD OF REVIEW
   [1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d
895 (2018).
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. ARCHIE
                        Cite as 305 Neb. 835

                          ANALYSIS
Excessive Sentence.
   We begin our analysis with Archie’s contention that he was
given an excessive sentence. Archie does not and cannot dis-
pute that his 18-to-20-year sentence was within the statutory
limits; at the time of Archie’s offense, attempted first degree
sexual assault was a Class III felony punishable by up to 20
years’ imprisonment. See Neb. Rev. Stat. §§ 28-105 (Reissue
1995 & Cum. Supp. 2002), 28-201(4)(b) (Reissue 1995 &
Cum. Supp. 1998), and 28-319(1)(c) and (2) (Reissue 1995).
He claims instead that the district court abused its discretion by
failing “to account for” Archie’s “rehabilitative progress” when
sentencing him. Brief for appellant at 11. More specifically,
Archie argues that the district court’s imposition of a near-
maximum sentence demonstrates that it did not consider his
engagement in rehabilitative programs while incarcerated in
the years between the offense and sentencing and letters from
various individuals noting positive changes in Archie’s life
during that same time period.
   [2,3] When imposing a sentence, the sentencing court is to
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48
(2019). However, the sentencing court is not limited to any
mathematically applied set of factors. Id. The appropriateness
of a sentence is necessarily a subjective judgment and includes
the sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
the defendant’s life. Id.
   Given the foregoing standards, we do not disagree that, in
fashioning a sentence, it would be appropriate for the district
court to consider, along with other factors, whether and to
what extent Archie had demonstrated rehabilitiation in the
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                         STATE v. ARCHIE
                         Cite as 305 Neb. 835

years following the offense at issue. We do disagree, how-
ever, with Archie’s argument that the district court did not
consider them. To the contrary, at the sentencing hearing, the
district court directly addressed Archie’s claim that he should
receive a lenient sentence because of his efforts at rehabilita-
tion. As quoted at length above, the district court rejected
the argument, finding that any notion that Archie had been
rehabilitated was undercut by the recorded telephone conversa-
tion between Archie and T.A. in which Archie, among other
things, “proudly recalled specifics about having sex with a
pre-­adolescent child.”
   A transcript of the recorded telephone conversation the
district court alluded to is included within the presentence
investigation report. Having reviewed the transcript, we do not
disagree with the district court’s characterization of the call and
certainly see no basis to say that the district court abused its
discretion by assigning little to no weight to Archie’s rehabili-
tation argument in light of it.
   Neither do we see any other basis to say that the district
court erred in sentencing Archie to 18 to 20 years’ imprison-
ment. The district court expressly stated that it considered the
relevant sentencing factors, and we see no indication in the
record that it considered improper factors. Among those rel-
evant sentencing factors was Archie’s criminal history. Archie’s
previous incarceration was due to convictions for first degree
sexual assault of a child and incest. He had also previously
been convicted of assault, attempted robbery, and other crimes.
The district court did not abuse its discretion in sentenc-
ing Archie.

Ineffective Assistance of Counsel.
   [4] Archie’s second assignment of error alleges that he “was
denied effective assistance of counsel in violation of his con-
stitutional rights under the Sixth and Fourteenth Amendments
of the United States Constitution and Article I, Section 11
of the Nebraska Constitution.” This general assignment of
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. ARCHIE
                        Cite as 305 Neb. 835

ineffective assistance of counsel does not comply with our
declaration last year in State v. Mrza, 302 Neb. 931, 935, 926
N.W.2d 79, 86 (2019), that “assignments of error on direct
appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate
court will not scour the remainder of the brief in search of
such specificity.”
   After the State’s brief on appeal urged us not to consider
Archie’s ineffective assistance claim because of his failure
to comply with Mrza, Archie filed a reply brief. The reply
brief includes a section titled “Restatement of Assignments of
Error.” Reply brief for appellant at 1. In that section, Archie
has reframed his ineffective assistance of counsel assignment
of error to include several specific alleged instances of defi-
cient performance by trial counsel. He argues that he has
thereby “cured” any failure to comply with Mrza and that
therefore, his ineffective assistance assignment of error should
be considered. Reply brief for appellant at 2. He also contends
that it should be considered because, even if his initial brief
did not comply with Mrza, the specific instances of deficient
performance he wished to assert could be discerned from the
argument section of the brief. We are unpersuaded by Archie’s
arguments for reasons we will explain.
   [5] First, an appellant cannot cure a failure to adequately
assign error via a reply brief. We have often stated that the
purpose of an appellant’s reply brief is to respond to the argu-
ments the appellee has advanced against the errors assigned
in the appellant’s initial brief and that errors may not be
asserted for the first time in a reply brief. See, e.g., Linscott
v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014). The
ineffective assistance assignment of error in Archie’s initial
brief did not comply with Mrza. Allowing Archie to raise
a Mrza-compliant ineffective assistance assignment of error
in his reply brief would not be meaningfully different than
allowing him to assert a brand new assignment of error in a
reply brief. We also disagree with Archie’s assertion that the
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. ARCHIE
                        Cite as 305 Neb. 835

only rationale for the Mrza requirement is to relieve appellate
courts from having to scour the argument section of a brief to
identify the specific allegations of deficient performance and
that his “[r]estatement” of his assignments of error eliminates
that concern. Another obvious benefit of the Mrza require-
ment is that, if followed, the specifically alleged deficient
performance will be clearly identified so that the appellee can
respond in its brief on appeal. A late attempt to comply with
Mrza does not afford the appellee the same opportunity.
   We also decline Archie’s invitation to attempt to discern the
specific alleged instances of deficient performance from the
argument section of his initial brief. We did “synthesize a spe-
cific assignment from the argument section” in Mrza, 302 Neb.
at 935, 926 N.W.2d at 86, but we also made clear we would not
do so in subsequent cases. On that basis, we recently refused to
consider a claim of ineffective assistance of counsel that was
assigned generally in a brief filed 3 months after our opinion
in Mrza was released. See State v. Guzman, ante p. 376, 940
N.W.2d 552 (2020). Archie’s initial brief was filed nearly 8
months after Mrza, and thus we will not consider his assign-
ment of error alleging ineffective assistance of counsel.

                       CONCLUSION
  We find no error in Archie’s conviction and sentence, and
we do not consider his ineffective assistance of counsel claim.
Therefore, we affirm.
                                                   Affirmed.
