State v. Blake, 310 Neb. 769

Background

Brandon L. Blake pled no contest (pursuant to a plea agreement) to attempted first-degree sexual assault (reduced from first-degree); district court sentenced him to 9–14 years, to run consecutively to other terms.
The 400‑page PSI detailed extensive mental‑health diagnoses, juvenile placement, history of physical and sexual abuse, and a high risk to reoffend; defense counsel referenced mental‑health history at sentencing.
Blake did not file a direct appeal after sentencing; he later filed a pro se postconviction motion alleging (1) trial counsel denied him a direct appeal, (2) counsel failed to present mitigating mental‑health/abuse evidence at sentencing, and (3) counsel failed to investigate/raise suppression/quash issues.
After an evidentiary hearing the district court found counsel ineffective for denying Blake a direct appeal and granted a new direct appeal; Blake timely filed a notice of appeal and an application to proceed in forma pauperis within 30 days, but his poverty affidavit had been executed (signed/notarized) months earlier.
The Court of Appeals initially dismissed the appeal under an appellate rule requiring a poverty affidavit executed within 45 days of the notice; on rehearing it reinstated the appeal and the Supreme Court took the case to decide jurisdiction and the substantive claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction — timing of poverty affidavit execution	Blake: affidavit and application were filed within 30 days and affidavit was notarized by him; the 45‑day execution requirement in the appellate rule is not jurisdictional.	State: affidavit was executed >45 days before the notice; appellate rule §2‑101(B)(4) required execution within 45 days, so appellate jurisdiction is lacking.	Court: Execution timing (staleness) is not a jurisdictional prerequisite; statutes require timely filing and a district court grant of in forma pauperis vests jurisdiction. Jurisdiction affirmed.
Excessive sentence	Blake: 9–14 years is excessive given his age at offense, mental‑health diagnoses, and childhood abuse—more mitigation warranted.	State: sentence is within statutory range; record/PSI justified custodial sentence for public protection.	Court: Sentence within statutory limits; court considered PSI and statutory sentencing factors; no abuse of discretion. Affirmed.
Ineffective assistance at sentencing — failing to present mental‑health / competency evidence	Blake: counsel failed to present or emphasize his diminished mental capacity and childhood abuse such that sentence would differ.	State: PSI (and record) already contained mental‑health and abuse history; defense counsel did highlight mental‑health issues at sentencing.	Court: Record affirmatively rebuts claim; sentencing court gave due consideration to PSI; no deficient performance or prejudice shown. Claim denied.
Ineffective assistance re plea — failure to investigate / interview witnesses	Blake: counsel failed to interview named witnesses who would support his innocence.	State: Record does not establish what witnesses would have said; the claim requires factual development.	Court: Claim sufficiently pleaded to preserve it but record is inadequate to decide on direct appeal; preserved for postconviction review (needs evidentiary development).
Ineffective assistance — failure to file motions to quash or suppress	Blake: counsel should have moved to quash the information and to suppress statements/evidence.	State: Argument is conclusory and lacks particulars about what would be quashed/suppressed; counsel not required to file meritless motions.	Court: Claim is insufficiently specific and conclusory; not properly raised on direct appeal and rejected here.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part standard for ineffective assistance of counsel: deficient performance and prejudice)
State v. Greer, 309 Neb. 667 (Neb. 2021) (sentencing review and factors to consider)
State v. Parmar, 255 Neb. 356 (Neb. 1998) (distinguishing affidavit execution from filing for in forma pauperis appeals)
State v. Dallmann, 260 Neb. 937 (Neb. 2000) (district court’s responsibility to adjudicate in forma pauperis objections; nonjurisdictional aspects of affidavit content)
State v. Ruffin, 280 Neb. 611 (Neb. 2010) (personal signature of affiant on poverty affidavit is jurisdictionally significant)
State v. Abdullah, 289 Neb. 123 (Neb. 2014) (requirements for preserving ineffective assistance claims on direct appeal)