State v. Blake
310 Neb. 769
Neb.2022Background
- Blake pled no contest to attempted first-degree sexual assault (charge reduced from first-degree); court sentenced him to 9–14 years, to run consecutively to other sentences.
- A 400-page PSI documented extensive mental-health diagnoses, juvenile abuse history, prior sexualized conduct, and a high risk to reoffend; defense acknowledged the PSI at sentencing.
- Blake filed a pro se postconviction motion claiming ineffective assistance, including that counsel refused his request to file a direct appeal; the district court found counsel deficient for failing to advise about/allow a direct appeal and granted a new direct appeal.
- Within 30 days of that order Blake filed a timely notice of appeal and an application to proceed in forma pauperis; his poverty affidavit was notarized months earlier (executed July, filed October), and the State argued that made the appeal jurisdictionally defective under an appellate rule requiring execution within 45 days.
- The Court of Appeals initially dismissed on the 45-day rule, then reinstated the appeal and the Nebraska Supreme Court took the case; the Supreme Court held affidavit execution timing (staleness) is not jurisdictional if the district court granted in forma pauperis and no timely objection was made.
- On the merits the Court: affirmed the conviction and sentence; vacated the district court’s premature denial of other ineffective-assistance claims; preserved the uninvestigated-witness claim for postconviction proceedings; rejected or found insufficient other ineffective-assistance claims.
Issues
| Issue | Blake's Argument | State's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction was defeated because Blake's poverty affidavit was executed >45 days before his notice of appeal | The affidavit execution timing is not jurisdictional; he filed notice and application within 30 days after the new-appeal order so jurisdiction vests | The staleness (execution >45 days earlier) violated appellate rule and deprived the court of jurisdiction | Execution timing (staleness) is not jurisdictional; because the district court granted in forma pauperis and no timely objection under §25‑2301.02 was made, appellate jurisdiction attached when the notice was filed |
| Whether the 9–14 year sentence was excessive | Sentence failed to account for mitigating factors (mental health, childhood abuse); a lesser, treatment-focused disposition was appropriate | Sentence within statutory range and reflected violence, victim age, and PSI risk factors | Sentence affirmed as within statutory limits and not an abuse of discretion |
| Whether trial counsel was ineffective at sentencing for failing to present/underscore mental-capacity or abuse-history evidence | Counsel failed to present or emphasize competency/mental-health and childhood abuse information that would have reduced sentence | PSI already contained diagnoses and history; court considered the PSI; counsel noted mitigating mental-health and youth at sentencing | Record affirmatively rebuts deficient performance or prejudice; sentencing-related ineffective-assistance claims denied on direct appeal |
| Whether counsel was ineffective in plea phase for (a) failing to investigate/interview named witnesses and (b) failing to move to quash or suppress evidence/statements | (a) Failure to investigate named witnesses denied opportunity to show innocence; (b) Counsel failed to pursue pretrial motions that might have excluded evidence | (a) Record insufficient to resolve on direct appeal; (b) allegations are conclusory, lack particularity and thus cannot be adjudicated on direct appeal | (a) Witness-investigation claim preserved for postconviction (cannot be resolved on record now); (b) Suppression/quash claim insufficiently pleaded and not preserved on direct appeal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
- State v. Greer, 309 Neb. 667 (Neb. 2021) (standards and factors for reviewing sentence reasonableness)
- State v. Parmar, 255 Neb. 356 (Neb. 1998) (distinguishing filing from execution of poverty affidavit for perfection of appeal)
- State v. Dallmann, 260 Neb. 937 (Neb. 2000) (district court’s role in ruling on in forma pauperis applications and nonjurisdictional defects in affidavit content)
- State v. Ruffin, 280 Neb. 611 (Neb. 2010) (affidavit must be personally signed by appellant or good cause shown; signature requirement can be jurisdictional)
- State v. Abdullah, 289 Neb. 123 (Neb. 2014) (procedural waiver rules for raising ineffective-assistance claims on direct appeal)
- State v. Dalton, 307 Neb. 465 (Neb. 2020) (when new direct appeal is granted for counsel’s failure to file appeal, district court must first address that claim before adjudicating other postconviction claims)