State v. Nicholas
| Docket Number | A-21-013,A-21-015,A-21-714 |
| Decision Date | 15 March 2022 |
| Parties | State of Nebraska, appellee, v. Aric A. Nicholas, appellant. |
| Court | Nebraska Court of Appeals |
Appeals from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Aric A. Nicholas appeals from his plea-based convictions in three separate cases in the district court for Lancaster County. The three cases were consolidated on appeal. Nicholas asserts that the sentences imposed are excessive. He also asserts that his trial counsel was ineffective in three respects. For the reasons that follow, we affirm Nicholas' convictions and sentences.
On November 27, 2019, an information was filed, charging Nicholas with one count of first degree sexual assault, a Class II felony, and with one count of attempted first degree sexual assault, a Class IIA felony. According to the factual basis provided by the State, the charges stemmed from Nicholas' relationship with H.B. during the summer of 2019.
H.B. reported to law enforcement that she began communicating with a man named Darelle Taylor over social media in May or June 2019. It was later revealed that Darelle Taylor was Nicholas. After 1 or 2 weeks of communicating with Nicholas, H.B. agreed to meet him in person. They met at the 8N Lofts in Lincoln, Nebraska, where they spent time at the pool on the top floor of the building. H.B. said that Nicholas gave her a cocktail which contained an unknown amount of alcohol. As a result of consuming the cocktail, H.B. became intoxicated. H.B. did not remember the specifics of the rest of the evening, but she did recall that she had sexual intercourse with Nicholas in one of the bathrooms of the pool area. H.B. believed that she also drove Nicholas to a fast-food restaurant at some point during the night.
After that night, H.B. informed Nicholas that she did not want a sexual relationship with him. Instead, she thought that they should just be friends. After this conversation, Nicholas forwarded her three videos from their encounter. The first video showed the two of them having sexual intercourse in the pool bathroom. The second video was of the two of them having sexual intercourse in her car, and the third video was of Nicholas digitally penetrating her while they were in the drive through of the fast-food restaurant. H.B. did not realize that Nicholas had videotaped any portion of their encounter. Nicholas threatened to send the videos to H.B.'s husband and co-workers and to post them on social media if she did not do what he asked. H.B. reported that upon his request, she met with Nicholas four or five more times. Each meeting involved her having sexual intercourse with Nicholas so that he would not release the videos. H.B. provided law enforcement with text messages between herself and Nicholas, which corroborated her story. In one such message, Nicholas told H.B. she must have sexual intercourse with him three times in the next week in order to avoid having him expose the videos.
We note that Nicholas' appeal in case No. A-21-714 was granted after he filed a motion for postconviction relief claiming that his trial counsel had failed to perfect a timely direct appeal from his convictions and sentences.
On November 27, 2019, an information was filed charging Nicholas with assault by a confined person, a Class IIIA felony. According to the factual basis provided by the State, the charge stems from a fight which occurred between Nicholas and another inmate while he was housed at the Lancaster County jail awaiting trial in case No. A-21-714.
On September 24, 2019, Nicholas entered the basketball court in the L-Pod yard area. Upon his entrance, another inmate was seated on the ground on the basketball court sharpening the handle side of a plastic fork. Nicholas approached the other inmate and began hitting him with a closed fist while the other inmate remained seated on the ground. The other inmate stood up and a mutual fight ensued. The other inmate did make a stabbing motion toward Nicholas and continued to strike him even after Nicholas was restrained by correctional officers.
On May 7, 2020, an information was filed charging Nicholas with assault by a confined person, a Class IIIA felony. According to the factual basis provided by the State, the charge stems from another fight which occurred between Nicholas and another inmate while he was housed at the Lancaster County jail awaiting trial in case No. A-21-714.
On January 26, 2020, Nicholas and another inmate were engaging in a "one-on-one" basketball game. During the game, Nicholas became upset, pushed the other inmate, and then twice struck the inmate in the face with a closed fist. The other inmate retaliated and hit Nicholas after which Nicholas struck the other inmate one more time. Correctional officers believed that Nicholas was the "predominant aggressor." The other inmate had blood on his shirt, a swollen lip, and a fresh cut.
A combined plea hearing was held on June 25, 2020, in all three cases. In case No. A-21-714, Nicholas pled no contest to two counts of attempted first degree sexual assault, each a Class IIA felony. In both cases Nos. A-21-013 and A-21-015, Nicholas pled no contest to a charge of third degree assault, a Class I misdemeanor. In addition, as part of the plea agreement, the State agreed not to file charges associated with certain Lincoln Police Department investigations.
The court then found beyond a reasonable doubt that Nicholas understood the nature of the charges and possible sentences; that his pleas were made freely, knowingly, intelligently, and voluntarily; and that the factual bases were sufficient to support Nicholas' pleas. The court accepted Nicholas' pleas of no contest to all charges and ordered a presentence report (PSR) be prepared. In addition, over Nicholas' objection, the court ordered Nicholas to engage in a psychosexual evaluation.
A combined sentencing hearing for all three cases was held on December 8, 2020. At the hearing, defense counsel asked the district court to sentence Nicholas to a period of imprisonment that was less than the maximum permitted by statute. Counsel also asked the court to, at least, order that the sentences for Nicholas' two convictions for attempted first degree sexual assault run concurrent to each other, rather than consecutive to each other. To the contrary, the State argued for a significant sentence of imprisonment: "And the State just asks that the Court use as many years as are necessary, given the facts, the criminal history, his continued risk to the community, and the irreparable harm that he has caused."
Ultimately, in case No. A-21-714, the court imposed a sentence of 16 to 20 years' imprisonment for each of Nicholas' convictions for attempted first degree sexual assault. These sentences were ordered to run consecutively with each other and with the sentences in cases Nos. A-21-013 and A-21-015. In case No. A-21-013, the district court imposed a sentence of 6 months' imprisonment for his conviction for third degree assault. In case No. A-21-015, the court imposed a sentence of 12 months' imprisonment for his conviction for third degree assault. The sentences for the two third degree assault convictions were ordered to run consecutively to each other.
Between all three cases, Nicholas' total combined sentence was 33½ years to 41½ years' imprisonment. Nicholas now appeals.
Nicholas assigns that the district court imposed excessive sentences and that his trial counsel was ineffective. Specifically, Nicholas contends that trial counsel failed to request a sentence of either probation or time in county jail; failed to file a motion to provide collateral information to the evaluator who performed a psychosexual evaluation on Nicholas; and failed to obtain and offer as evidence all of the police reports surrounding Nicholas' previous conviction in Denver, Colorado.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021). 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.
Nicholas assigns that the district court imposed an excessive sentence when considering the "combined sentence of not less than 33 and ½ years nor more than 41 and ½ years imprisonment for the...
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