State v. Coates, 090721 NECA, A-21-098

CourtCourt of Appeals of Nebraska
JudgePirtle, Chief Judge, and Moore and Bishop, Judges.
Writing for the CourtBishop, Judge
PartiesState of Nebraska, appellee, v. Nicholas A. Coates, appellant.
Docket NumberA-21-098

State of Nebraska, appellee,


Nicholas A. Coates, appellant.

No. A-21-098

Court of Appeals of Nebraska

September 7, 2021


Appeal from the District Court for Lancaster County: Kevin R. McManaman, Judge.

Timothy S. Noerrlinger for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Pirtle, Chief Judge, and Moore and Bishop, Judges.


Bishop, Judge


Nicholas A. Coates pled no contest to one count of attempted first degree sexual assault. The Lancaster County District Court sentenced him to 8 to 10 years' imprisonment. On appeal, Coates claims his sentence is excessive and that he received ineffective assistance of counsel. We affirm.


On February 13, 2020, the State filed an information charging Coates with one count of child enticement with an electronic communication device, a Class ID felony, in violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2016) and one count of possession of a controlled substance, a Class IV felony, in violation of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2018). Coates pled not guilty to these charges.

Pursuant to a plea agreement, the State filed an amended information on August 14, 2020, charging Coates with one count of attempted first degree sexual assault, a Class IIA felony, in violation of Neb. Rev. Stat. §§ 28-201 and 28-319(1)(c) (Reissue 2016). At a hearing held on September 22, Coates pled no contest to the amended information. According to the factual basis provided by the State: On or about November 18th, [2019], officers with the Lincoln Police Department responded to a call for service in which a mother was checking her fourteen-year-old daughter's cell phone. In doing so, the mother discovered that several adult males were sending her daughter . . . photos of themselves in attempting to get the fourteen-year-old to have sexual intercourse with them. On November 20th, 2019, the mother turned the cell phone over to law enforcement. The mother provided consent for officers to conduct a forensic [examination] of the phone and verbal consent for [a sergeant] with the Lincoln Police Department to take over and assume the social media accounts which the individuals had been contacting this female on. The female's initials being AM with the date of birth May . . . 2005.

The law enforcement officers located a conversation that had been occurring on or about November 13th, 2019, with an individual later identified as Nicholas Coates, the defendant before the Court, who has a date of birth of February . . . 1984. That conversation began on November 13th and by November 15th, the defendant was requesting to have sex with the fourteen year old, more specifically the female had indicated that she was in her menstrual cycle to which Coates offered that he could insert his fingers inside of her, perform oral sex on her, and even have intercourse with her. On November 21st, 2019, [the sergeant] took over the communication with the defendant. In doing so, [the sergeant] notified the defendant that the person he'd been talking with was only fourteen years old and that they did not need to meet up if he was uncomfortable with that. The defendant's response was that he did not want to know her age and began asking the fourteen-year-old if she could sneak out of the house, as he was in Lincoln and his penis was hard as a rock. And arrangements were made and while [the sergeant] was interacting with the defendant . . . [he] explained that he was worried about getting caught and in trouble if someone caught them together. The defendant offered that he would tell others that the fourteen-year-old was friends with his niece and that he was taking the fourteen-year-old to her home. The defendant then offered that he could get condoms and that he would be delicate. He also informed who he believed to be a fourteen-year-old at that time that her and his penis were going to get acquainted. They then arranged to meet up. Law enforcement followed him to a [a drug store] where he went in, purchased some items[, ] and . . . was later contacted at a prearranged meeting location. He was taken into custody by officers. At that time a search was done on his vehicle. Inside the vehicle in the glovebox officers located a vibrating sex toy and a new box of condoms, which were confirmed to have just been purchased at the [drugstore] where law enforcement had observed the defendant. Other items were also located in the vehicle.

All those events occurred in Lancaster County, Nebraska.

The district court accepted Coates' plea of no contest and found him guilty of attempted first degree sexual assault. The case was then set for sentencing.

At a sentencing hearing held "via Zoom" on January 5, 2021, the district court sentenced Coates by oral pronouncement to 8 to 10 years' imprisonment, with credit for 342 days already served. The court entered a sentencing order consistent with its oral pronouncement that same day. Coates then appealed.


Coates claims on appeal that his sentence was excessive. He also claims that his trial counsel was ineffective in failing to depose the victim in this case and in failing to file a motion to obtain a psychosexual evaluation and a substance abuse evaluation prior to sentencing.


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.


1. Excessive Sentence

Coates was convicted of one count of attempted first degree assault, a Class IIA felony, pursuant to §§ 28-201 and 28-319(1)(c). A Class IIA felony is punishable by a maximum of 20 years' imprisonment; there is no minimum term of imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Coates was sentenced to 8 to 10 years' imprisonment; therefore 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.

Coates was 36 years old at the time of sentencing. He has some juvenile history which we will not recount here. His adult criminal history includes: minor in possession of alcohol in 2003 for which he was sentenced to 1 day in jail; possession of 1 ounce or less of marijuana and possession of drug paraphernalia in 2006 for which he was issued two separate fines of $100; two counts of violating a protection order in 2009 for which he was fined $500 for the first count and placed on house arrest for 30 days for the second; disturbing the peace in 2010 for which he was sentenced to 90 days in jail; possession of drug paraphernalia in 2010 for which he was fined $100; disturbing the peace in 2014 for which he was fined $250; three charges in 2015 resulting in concurrent sentences, namely: negligent child abuse for which he was sentenced to 145 days in jail, third degree domestic assault for which he was sentenced to 145 days in jail, and disturbing the peace for which he was sentenced to 90 days in jail; and third degree domestic assault in 2018 for which he was sentenced to 63 days in jail. His record also includes multiple convictions for traffic offenses, including driving under the influence and driving during revocation.

The probation officer conducted a "Level of Service/Case Management Inventory" and assessed Coates as having a "very high risk" to reoffend. The presentence investigation report indicated that Coates scored "very high risk" in the criminogenic risk factor domains for alcohol/drug problem and...

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