                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. MORRIS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                SAMUEL A. MORRIS, APPELLANT.


                              Filed June 2, 2020.   No. A-19-538.


       Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
       Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellant.
       Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                      I. INTRODUCTION
        Samuel A. Morris pled no contest to one count of attempted first degree sexual assault of
a child. The Sarpy County District Court sentenced him to 8 to 16 years’ imprisonment. Morris
claims that the district court imposed an excessive sentence and that he was denied his right to
effective assistance of counsel. We affirm.
                                      II. BACKGROUND
       On March 23, 2018, the State filed an information charging Morris with two counts:
count I, first degree sexual assault of a child, a Class IB felony, pursuant to Neb. Rev. Stat.
§ 28-319.01 (Reissue 2016); and count II, violation of a handgun permit - consumed alcohol, a
Class III misdemeanor, pursuant to Neb. Rev. Stat. §§ 69-2441 (Reissue 2009) and 69-2443
(Reissue 2018).




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       Pursuant to a plea agreement, the State filed an amended information on February 14, 2019,
charging Morris with one count of attempted first degree sexual assault of a child, a Class II felony,
pursuant to § 28-319.01 and Neb. Rev. Stat. § 28-201 (Cum. Supp. 2018). At a hearing that same
day, Morris pled no contest to the count in the amended information. According to the factual basis
provided by the State,
               On December 15, 2017, officers were dispatched to [an address on] Hancock Street
       [in] Sarpy County, Nebraska[,] to remove a party.
               Officers made contact initially with . . . Morris . . . who was outside the trailer
       looking into one of the windows of the residence. At that time . . . [o]fficers asked him why
       he was there. He stated his friend and his phone were inside and he was trying to get his
       phone. He then stated that he met the individual on the Grinder app. At that time his blood
       alcohol content was taken, point 222. His date of birth is [in 1962].
               Officers made contact with . . . T.S. who stated that he was out with his friends and
       his brother, P.S., whose date of birth [was in 2003], making him 14 years old at the time,
       was home alone. T.S. stated when he returned home he observed [Morris] inside the trailer,
       did not know why he was there. Officers spoke with P.S. P.S. told officers that [Morris]
       was performing oral sex on P.S., and P.S. heard his brother coming inside the residence.
               All events occurred in Sarpy County, Nebraska.

The district court accepted Morris’ no contest plea to the charge in the amended information and
found him guilty of the same. The case was set for sentencing.
       After a hearing on May 6, 2019, the district court sentenced Morris to 8 to 16 years’
imprisonment, with credit for 5 days already served.
       Morris appeals.
                                 III. ASSIGNMENTS OF ERROR
        Morris assigns (1) the district court imposed an excessive sentence and (2) he received
ineffective assistance from trial counsel who failed to investigate and explore aspects of his
defense, and failed to advise him about his right to allocution and prepare him for addressing the
court.
                                  IV. STANDARD OF REVIEW
       An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
       Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.




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                                          V. ANALYSIS
                                     1. EXCESSIVE SENTENCE
        Morris was convicted of one count of attempted first degree sexual assault of a child, a
Class II felony, pursuant to §§ 28-201 and 28-319.01. The Class II felony was punishable by 1 to
50 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018). Morris was sentenced
to 8 to 16 years’ imprisonment; his sentence was within the statutory range.
        When imposing a sentence, a sentencing judge should 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) motivation for the offense, as well as (7) the
nature of the offense and (8) the violence involved in the commission of the crime. State v.
Lierman, supra. 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.
        Morris was 56 years old at the time of sentencing. According to the presentence report
(PSR), Morris was divorced, had four adult children and one grandchild, had completed some
college, and was employed in network systems engineering at a company prior to his arrest.
        Morris’ criminal history includes a fine for trespassing in 1980. The PSR includes “MIP,”
“Unlawful Possession,” and “Liquor by Minor” offenses in 1980, but notes “No Disposition
Shown” for each of those offenses. As for his current offense, Morris was convicted of attempted
first degree sexual assault of a child. Additionally, after his current offense, he received a “DUI”
in February 2018, for which he received a fine and 2 days’ jail time.
        The probation officer conducted a “Level of Service/Case Management Inventory.” Morris
was assessed as an overall “[m]edium-[l]ow” risk to reoffend. He scored “HIGH” in the
criminogenic risk factor domain for leisure/recreation. He scored “MEDIUM” risk in the domains
for education/employment and alcohol/drug problem. He scored “LOW” risk in the domains for
family/marital and antisocial pattern. And he scored “VERY LOW” risk in the domains for
criminal history, companions, and pro-criminal attitude/orientation. On the “Substance Abuse
Questionnaire,” Morris scored in the “[p]roblem [r]isk [r]ange” for truthfulness and stress coping,
and in the “[m]edium [r]isk [r]ange” for alcohol. On the “Vermont Assessment of Sex Offender
Risk-2,” Morris scored in the “Moderate-Low” risk range for recidivism.
        At the sentencing hearing, Morris’ counsel noted that the PSR indicated no criminal history
with the exception of a DUI that occurred after this offense, and that Morris was a very low risk
for future sexual offenses. Counsel argued that Morris had been drinking and “made a very poor
decision in judgment.” He noted that Morris was “on an adult website that actually required a
person to log in that says they’re at least 19 years old” and that he “was basically invited over to
this individual’s [the victim’s] house.” Counsel stated that Morris had done everything required of
him since the case began, and counsel thought Morris was “an excellent candidate for probation.”
Morris personally addressed the court stating, “I realized that what I did was wrong,” “[a]nd I’ve
been extremely ashamed and remorseful for the harm I caused to the victim and his family and to
my family and to the Court.” Morris said “[t]he events that took place are way out of character for
[him]” and that the court would “never see [him] . . . again for any offense.” The State asked for a
“straight sentence.”


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         The district court stated that it had considered the relevant sentencing factors. The court
noted that Morris was 56 years old and the victim was 14 years old, and there was alcohol and a
gun involved. The court stated, “There has to be laws set there to protect those that can’t protect
themselves. I’m concerned it could have went a lot of different ways given the influences there.”
The court found that imprisonment was necessary and sentenced Morris as set forth previously.
         In his brief, Morris contends that his sentence was an abuse of discretion because the
district court “did not seriously consider all of the mitigating factors.” Brief for appellant at 9.
Morris then recounts information from the PSR, including that he had “nearly no criminal history.”
Id.
         Having considered the relevant factors in this case, we find that Morris’ sentence was not
excessive or an abuse of discretion and his sentence is therefore affirmed. See State v. Lierman,
supra (sentence imposed within statutory limits will not be disturbed on appeal absent abuse of
discretion by trial court).
                                  2. EFFECTIVENESS OF COUNSEL
        Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal
charge. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a defendant pleads
guilty or no contest, he or she is limited to challenging whether the plea was understandingly and
voluntarily made and whether it was the result of ineffective assistance of counsel. Id.
        Morris has different counsel on direct appeal. When a defendant’s trial counsel is different
from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of
trial counsel’s ineffective performance which is known to the defendant or is apparent from the
record. Id.
        Generally, 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 his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Blaha, supra. To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. In a plea context, deficiency depends on whether
counsel’s advice was within the range of competence demanded of attorneys in criminal cases. Id.
When a conviction is based upon a guilty or no contest plea, the prejudice requirement for an
ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability
that but for the errors of counsel, the defendant would have insisted on going to trial rather than
pleading guilty. Id. The two prongs of the ineffective assistance of counsel test under Strickland
may be addressed in either order. State v. Blaha, supra.
        Thus, in reviewing Morris’ claims of ineffective assistance of counsel on direct appeal, we
decide only whether the undisputed facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient performance. See id.
        Morris claims that his trial counsel (1) failed to investigate and explore aspects of his
defense, and (2) failed to advise him about his right to allocution and prepare him for addressing
the court.



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                                             (a) Defense
         The victim in this case initially indicated to family and law enforcement that Morris was
at the residence to buy a Play Station, but the victim later told law enforcement that Morris
performed oral sex on him.
         Morris claims that his trial counsel failed to investigate or explore aspects of his defense
when counsel failed to depose the victim, “the only available fact witness for the State,” “and
explore what [the victim] might have said under oath and at the time of trial.” Brief for appellant
at 13. Morris claims that counsel’s failure to depose the victim prejudiced Morris from “being
prepared for a potential trial or for exploring additional plea offers available to him.” Id. See, also,
Neb. Rev. Stat. § 29-1917 (Reissue 2016) (deposition may be ordered when testimony of witness
may be material or relevant to issue to be determined at trial or if testimony may be of assistance
to parties in preparation of their respective cases; deposition may be used at trial by any party
solely for purpose of contradicting or impeaching testimony of deponent as witness). The State
asserts that the record is insufficient to address this claim on direct appeal. We conclude otherwise.
         As noted by Morris, the victim did change his initial statement to law enforcement. The
PSR contains additional evidence in this case. According to investigative reports in the PSR, both
Morris and the victim revealed they met on the “Grindr app.” Law enforcement was able to obtain
a copy of the Grindr message chat between Morris and the victim. The chat reveals that the victim
sent a picture of his penis to Morris and Morris then agreed to meet the victim, who sent a “Google
map” image. The victim then asked Morris if he minded a “3some,” to which Morris replied he
did not mind. Morris further indicated he would not get undressed, but provided graphic detail as
to performing oral sex on “both of you.” He then asked, “Can you please send me an address. My
phone isn’t telling me where to go based on that location pin you sent.” The victim gave an address.
The investigative reports and the message chat reveal that Morris had a difficult time finding the
address sent by the victim, but was ultimately able to locate the residence. According to
investigative reports, the victim and Morris gave conflicting reports about what happened next.
The victim said that Morris remained clothed, but performed oral sex on the victim. However,
Morris said that when he arrived at the residence, the victim seemed young but told Morris that he
was 19 years old. According to Morris, the victim wanted oral sex, but Morris was not comfortable
with that and offered a “hand job” instead.
         A person commits sexual assault of a child in the first degree when he or she subjects
another person who is at least 12 years of age but less than 16 years of age to sexual penetration
and the actor is 25 years of age or older. See § 28-319.01(1)(b). Sexual penetration includes
fellatio. See Neb. Rev. Stat. § 28-318(6) (Reissue 2016). A defendant’s conduct rises to criminal
attempt if he or she intentionally engages in conduct which, under the circumstances as he or she
believes them to be, constitutes a substantial step in a course of conduct intended to culminate in
his or her commission of the crime. See, § 28-201; State v. Cruz, 23 Neb. App. 814, 876 N.W.2d
404 (2016).
         In this case, there does not appear to be any question that at the time of the offense the
victim was at least 12 years of age but less than 16 years of age, and that Morris was 25 years of
age or older. The question is whether Morris’ conduct constituted a substantial step towards the
sexual penetration of the victim. The victim’s statements and testimony would provide key



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evidence as to the degree of the sexual assault committed by Morris, i.e., whether Morris’ conduct
was more in line with sexual penetration or a less punitive sexual contact.
        Although no motion to take the victim’s deposition pursuant to § 29-1917 appears in our
record, Morris does not explain how not taking the victim’s deposition was deficient performance
by his trial counsel in light of the other available evidence regarding his contact with the child
victim. Further, at the plea hearing, Morris confirmed his understanding that by entering a plea, he
was waiving or giving up certain rights, including his right to confront and cross-examine the
State’s witnesses, and his right to challenge the admissibility of evidence. Morris also confirmed
his understanding that by entering a plea, he was waiving or giving up his presumption of
innocence. Accordingly, Morris cannot show he was prejudiced and this claim of ineffective
assistance fails.
                                           (b) Allocution
        Morris claims that his trial counsel failed to advise him about his right to allocution and
prepare him for addressing the court at sentencing. Morris argues that counsel’s failure to advise
him that he would have an opportunity to address the court left him “unprepared to appropriately
address the court and subsequently left the court unable to assess [him] in fashioning an appropriate
sentence.” Brief for appellant at 14. The State once again asserts that the record is insufficient to
address this claim on direct appeal. We conclude otherwise. Morris did have an opportunity to
address the court. And although he claims his trial counsel failed to properly advise and prepare
him for allocution, Morris does not specifically identify what information he would have provided
to the court that was not already available in the PSR. Nor does he demonstrate a reasonable
probability that his sentence would have been any different had he been better prepared for
allocution. Accordingly, this claim of ineffective assistance of counsel fails.
                                        VI. CONCLUSION
       For the reasons stated above, we affirm Morris’ sentence. The record is also sufficient to
review both of Morris’ claims of ineffective assistance of trial counsel, and we conclude that both
claims fail.
                                                                                        AFFIRMED.




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