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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. COATES

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.

NICHOLAS A. COATES, APPELLANT.

Filed September 7, 2021. No. A-21-098.

Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge. 

Affirmed.

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.

I. INTRODUCTION

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.

II. BACKGROUND

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.
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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.
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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.

III. ASSIGNMENTS OF ERROR

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.

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.

V. ANALYSIS

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 
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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 antisocial pattern. He scored “high risk” in the domains for criminal 

history, leisure/recreation, and companions. He scored “medium risk” in the domains for 

education/employment, family/marital, and procriminal attitude/orientation. The presentence 

investigation report also provided that Coates scored as a “moderate low risk” to reoffend on the 

“Vermont Assessment of Sex Offender Risk-2” and further indicated that Coates disclosed a 

history of being subjected to sexual abuse as a child by three individuals that he identified during 

the interview.

At the sentencing hearing, Coates’ counsel stated that a defendant convicted in a separate 

case involving A.M. had been sentenced to 15 to 30 months’ imprisonment, and counsel noted 

that, unlike that other defendant, Coates had not sent “nude photos” of himself to A.M. Counsel 

further argued that there was an “apparent lack of impact on the victim in this case” based on law 

enforcement’s recorded interviews with A.M. and counsel’s observation “that the most vulgar 

comments” made by Coates were made while he “believe[d] he was speaking to the victim” but 

“was in actuality speaking with the police.” Counsel also emphasized that Coates “was under the 

influence of meth and other substances during the period prior to and during this incident.” Counsel 

additionally claimed that the record did not contain other “material which would lead one to 

believe [he] had an interest sexually in minors” and highlighted that Coates was seeking to take 

advantage of rehabilitative programming during his incarceration. Counsel asked the district court 

to sentence Coates to “time served” or “a period of probation that would allow his immediate 

release.”

Coates personally addressed the district court, expressing that his actions “were 

reprehensible and inexcusable.” He described that his childhood “was normal on the surface” but 

“clouded by a whirlwind of [sexual] abuse, an absent father, alcohol, and addiction.” He further 

described that his abusers “were never found out” and that he had never healed from that history 

of abuse. He stated that “[h]ad [he] known her true age, [he] absolutely would not have pursued 

[A.M.] in any capacity.” Coates stated that he “fully accept[ed] responsibility” for his actions and 

expressed remorse for the harm caused by his actions.

In its response, the State addressed the argument concerning the sentence imposed on 

another defendant who had engaged in sexual communication with A.M., stating that defendant 

“was a younger individual” who did not “have a criminal history.” The State highlighted Coates’

criminal history and course of conduct in communicating with A.M. and in taking substantial steps 

to meet with her for the purpose of sexual intercourse, noting that such conduct occurred despite 
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law enforcement “identif[ying] themselves as a fourteen-year-old female” after taking control of 

A.M.’s social media.

The district court stated that it had considered the relevant sentencing factors, the 

information contained in the presentence investigation report, and Coates’ disclosures and 

expressions of remorse during the sentencing hearing. The court further described Coates’

decisions and actions leading to his arrest, noting Coates’ own description of his conduct. The 

court, “having regard for the nature and circumstances of the crimes and the history, character, and 

condition of the defendant” and finding imprisonment of Coates to be “necessary for the protection 

of the public,” sentenced Coates as set forth previously, concluding that a lesser sentence would 

depreciate the seriousness of the offense and promote disrespect for the law.

In his brief on appeal, Coates argues that the “district court failed to give proper weight 

and consideration” to his “willingness to enter a plea of no contest, the sentence imposed by the 

same district court on a similarly situated offender,” and his desire “for treatment.” Brief for 

appellant at 13. He also asserts that the district court failed to give proper weight and consideration 

to the factors set forth in Neb. Rev. Stat. § 29-2260(3) (Reissue 2016) that weigh in favor of 

withholding a sentence of imprisonment.

We first observe that, other than the references by the State and Coates’ counsel during 

sentencing, our record does not contain details about the other case referenced on appeal. However, 

even if those details were part of the record, such information is not relevant to our review of 

Coates’ sentence. The Nebraska Supreme Court has stated that in an appeal not involving a death 

sentence, “‘the issue in reviewing a sentence is not whether someone else in a different case 

received a lesser sentence, but whether the defendant in the subject case received an appropriate 

one.’” State v. Albers, 276 Neb. 942, 953, 758 N.W.2d 411, 418 (2008), quoting State v. Phillips, 

242 Neb. 849, 496 N.W.2d 874 (1993). As such, we decline to consider the facts and disposition 

of the other case referenced by Coates on appeal in our evaluation of Coates’ sentence.

Having considered the record and the relevant factors in this case, we cannot say that the 

district court abused its discretion in sentencing Coates. His sentence is therefore affirmed. See

State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020) (sentence imposed within statutory limits 

will not be disturbed on appeal absent abuse of discretion by trial court).

2. INEFFECTIVE ASSISTANCE 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.

Coates claims his trial counsel was ineffective. He is represented on direct appeal by 

different counsel than the initial and replacement trial counsel. 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. State v. Lierman, supra. Once raised, the appellate court will determine whether 

the record on appeal is sufficient to review the merits of the ineffective performance claims. Id. A 

record is sufficient if it establishes either that trial counsel’s performance was not deficient, that 

the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be 
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justified as a part of any plausible trial strategy. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 

(2020).

In order to know whether the record is insufficient to address assertions on direct appeal 

that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough 

particularity (1) for an appellate court to make a determination of whether the claim can be decided 

upon the trial record and (2) for a district court later reviewing a petition for postconviction relief 

to be able to recognize whether the claim was brought before the appellate court. State v. Lierman, 

supra. When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the 

appellant is not required to allege prejudice; however, an appellant must make specific allegations 

of the conduct that he or she claims constitutes deficient performance by trial counsel. 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.

With these governing principles in mind, we turn now to address Coates’ claims that his 

trial counsel was ineffective in not deposing A.M. prior to his no contest plea and in failing to 

request psychosexual and substance abuse evaluations prior to sentencing.

(a) Failure to Depose Victim

Coates claims that he had “advised trial counsel, well in advance of trial, that he wanted to 

have A.M. deposed prior to trial or plea,” but “[n]o deposition of A.M. was done by his original 

trial counsel or replacement trial counsel.” Brief for appellant at 16. He states that “A.M. was 

interviewed by Law Enforcement after her mother contacted them” and “by the Child Advocacy 

Center” during law enforcement’s investigation, and he further describes that he “was aware of the 

statements made by A.M. during the course of the investigation.” Id. Coates argues that the failure 

of his initial and replacement trial counsel to depose A.M. “was material to both plea negotiations 

and for sentencing” because A.M. was not “questioned in depth about how she first began to 

communicate with” Coates or about “her willingness to engage in conversations” with Coates. Id.

However, how A.M. and Coates began to communicate and A.M.’s willingness to continue 

that communication are not relevant considerations to the essential elements for attempted first 

degree sexual assault under §§ 28-201 and 28-319(1)(c). See State v. Campbell, 239 Neb. 14, 473 

N.W.2d 420 (1991) (consent or reasonable mistake as to age of victim is not defense to first degree 

sexual assault on child under § 28-319(1)(c)). We also note that the presentence investigation 

report contained police reports summarizing law enforcement’s interviews with A.M. in which she 

described how she began and continued to communicate with Coates and other individuals until 
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her mother turned control of her social media over to law enforcement. The report also included 

the communications between A.M. and Coates that occurred prior to law enforcement’s 

involvement.

Therefore, as noted by the State, there was “no dispute that A.M. voluntarily exchanged 

messages of a sexual nature with Coates prior to law enforcement involvement, so a deposition to 

further establish this fact would not have provided any benefit.” Brief for appellee at 20. Further, 

there is “no assertion in Coates’ argument of how a deposition of A.M. on this issue would have 

resulted in any mitigating information not already contained within the record, nor does [Coates] 

even suggest what A.M. would have said that would have been further mitigating for purposes of 

trial or sentencing.” Id. We agree.

We conclude that Coates’ assertion does not establish deficient conduct by his trial counsel, 

but even if it did, he would be unable to show any prejudice. Coates was specifically asked by the 

district court if he had gone over with his attorney all of the facts and possible defenses that he 

might have. Coates responded, “Extensively.” And as noted above, how A.M. and Coates began

to communicate and her willingness to continue that communication are not relevant 

considerations to the essential elements for attempted first degree sexual assault, so obtaining a 

deposition for that purpose, in addition to the record already made, would not have produced any 

evidence to create a reasonable probability that Coates would have insisted on proceeding to trial 

rather than entering a plea. This claim of ineffective assistance of counsel fails.

(b) Failure to Obtain Evaluations

Coates further claims that his trial counsel was ineffective in failing to file a motion for 

Coates to undergo psychosexual and substance abuse evaluations prior to sentencing. We first note 

that Coates assigned as error that trial counsel was ineffective in failing “to file a motion to obtain 

a psycho-sexual evaluation and substance abuse evaluation prior to sentencing for mitigation 

purposes.” Brief for appellant at 3. However, Coates only argues in the body of his brief that trial 

counsel was ineffective in failing “to have him evaluated by a psychologist for a psycho-sexual 

evaluation.” Id. at 17. He does not specifically argue that his trial counsel was ineffective in failing 

to obtain a substance abuse evaluation. An alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error to be considered by an appellate 

court. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). As a result, we only consider 

this error to the extent that Coates argues that his trial counsel was ineffective in failing to seek a 

psychosexual evaluation.

Coates claims that he had “advised his trial counsel, well in advance of sentencing, that he 

was a child victim of sexual assault” and that no psychosexual evaluation was requested before 

sentencing. Brief for appellant at 17. He argues that the results of such an evaluation could have 

been used “for mitigation purposes” and the lack of any evaluation “deprived him of material 

information” that would have assisted his argument for a lesser sentence. Id.

As previously noted, Coates stated during the sentencing hearing that he had experienced 

sexual abuse as a child and that he was still significantly impacted by that abuse. The presentence 

investigation report also described that during his interview with the probation officer, Coates 

disclosed that he was sexually abused as a child by three individuals and further provided 

substantial details regarding that history. Thus, Coates’ history of being sexually abused was 
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known to the district court at the time of sentencing. He further does not describe how the 

information from a psychosexual evaluation would have differed from that disclosed during the 

sentencing hearing and contained in the presentence investigation report. Given that Coates’

history of being sexually abused was in the record and known to the district court at sentencing, 

we conclude that Coates cannot show prejudice on this matter. See State v. Casares, 291 Neb. 150, 

864 N.W.2d 667 (2015) (trial counsel was not ineffective in failing to arrange for defendant to 

have separate drug and alcohol evaluation conducted for presentence investigation; presentence 

investigation report was extensive and included sections addressing defendant’s use of alcohol and 

drugs and prior treatment and any information obtained from additional evaluation would have 

been cumulative). This claim of ineffective assistance of trial counsel also fails.

VI. CONCLUSION

For the reasons set forth above, we affirm Coates’ sentence. In addition, we conclude the 

record is sufficient to address and reject Coates’ claims of ineffective assistance of trial counsel.

AFFIRMED.