State v. Blake, 310 Neb. 769

Background

Brandon Blake pled no contest to attempted first degree sexual assault (reduced charge) and was sentenced to 9–14 years (to run consecutively to other sentences). A 400‑page PSI reflected extensive mental‑health diagnoses, juvenile placements, and prior sexual/assaultive conduct.
Blake filed a pro se postconviction motion alleging trial counsel was ineffective (including denial of right to file a direct appeal). The district court found counsel had been deficient for failing to advise/file an appeal and granted a new direct appeal; it denied other claims without an evidentiary hearing.
Within 30 days of the postconviction order Blake filed a notice of appeal, an application to proceed in forma pauperis, and a poverty affidavit; the affidavit had been signed/notarized ~117 days earlier. The district court granted in forma pauperis status.
The Court of Appeals initially dismissed the appeal based on a rule requiring a poverty affidavit executed within 45 days of the notice; rehearing was granted and the jurisdictional question was briefed and moved to the Nebraska Supreme Court.
The Supreme Court held (1) the age of execution of a timely filed poverty affidavit is not a jurisdictional defect if the district court granted in forma pauperis status and no timely objection was made, (2) Blake’s sentence was not excessive, and (3) most ineffective‑assistance claims were either refuted by the record or insufficiently pleaded on direct appeal; the claim about failure to investigate named witnesses was preserved for postconviction proceedings.

Issues

Issue	Blake's Argument	State's Argument	Held
Jurisdiction: execution timing of poverty affidavit	Execution timing (>45 days before notice) is not jurisdictional; statute only requires timely filing within 30 days	Affidavit was executed too long before the notice; appellate rule and statutes require timely affidavit/execution so court lacks jurisdiction	Execution timing (staleness) is not jurisdictional; because Blake timely filed notice and timely filed the application/affidavit and the district court granted in forma pauperis, appellate jurisdiction vested; State’s rule‑based dismissal reversed
Excessive sentence	9–14 years was excessive given Blake’s mental‑health diagnoses and history of childhood abuse	Sentence is within statutory range and court considered PSI and relevant factors; no abuse of discretion	Sentence affirmed as within statutory limits and not an abuse of discretion
Ineffective assistance at sentencing (failure to present/ highlight mental‑health/abuse evidence)	Counsel failed to present/ emphasize diminished capacity and childhood abuse, which would have reduced sentence	PSI already contained that information; counsel raised mental‑health history at sentencing; court considered the PSI	Record affirmatively rebuts claim; counsel not ineffective at sentencing
Ineffective assistance re plea (investigation; motions to quash/suppress)	Counsel failed to interview named witnesses and obtain statements; counsel failed to pursue motions to quash or suppress	Witness‑investigation claim may require an evidentiary hearing and cannot be resolved on record; motion claims are conclusory and lack particularity	Failure‑to‑investigate claim as to named witnesses preserved for postconviction (not resolved on direct appeal); failure‑to‑move (quash/suppress) claims insufficiently specific and not properly raised

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
State v. Parmar, 255 Neb. 356 (1998) (distinguishing affidavit execution from filing for in forma pauperis appeals)
State v. Dallmann, 260 Neb. 937 (2000) (district court duty to determine adequacy of poverty affidavit; nonjurisdictional defects waived if not raised below)
State v. Ruffin, 280 Neb. 611 (2010) (affidavit must be signed by affiant; personal signature is jurisdictionally significant)
State v. Greer, 309 Neb. 667 (2021) (standards for review of sentencing decisions)
State v. Abdullah, 289 Neb. 123 (2014) (need to raise known/record‑apparent ineffective assistance claims on direct appeal to avoid waiver)
State v. Dalton, 307 Neb. 465 (2020) (procedural rule: when postconviction grants a new direct appeal, district court must limit its final order to the direct‑appeal‑denial claim)