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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 sentence 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 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 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 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.

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.

Nebraska Supreme Court Online Library

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

06/05/2020 08:08 AM CDT
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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 following 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 ineffective 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 subject 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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305 Nebraska Reports

STATE v. ARCHIE

Cite as 305 Neb. 835

a child. T.A. reported that Archie subjected her to sexual penetration in various forms and in various locations in Lincoln, 

Nebraska, beginning when she was 7 years old and continuing 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 scheduled 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 referenced various programs Archie had completed while incarcerated, 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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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 conversations 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 discussions 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 reminiscing about good times. And more than once you told her 

that she had seduced you and you proudly recalled specifics 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 discussion 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 excessive 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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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 dispute 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 nearmaximum 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) 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. 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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305 Nebraska Reports

STATE v. ARCHIE

Cite as 305 Neb. 835

years following the offense at issue. We do disagree, however, 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 rehabilitation. 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 conversation 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 rehabilitation 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’ imprisonment. 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 relevant 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 sentencing 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 constitutional 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 deficient 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 arguments 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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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 requirement 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 specific 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 assignment 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.