State v. Blake ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/14/2022 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BLAKE
Cite as 310 Neb. 769State of Nebraska, appellee, v.
Brandon L. Blake, appellant.
___ N.W.2d ___
Filed January 28, 2022. No. S-20-779.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision.
2. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
3. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
4. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal; the deter-
mining factor is whether the record is sufficient to adequately review
the question.
5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
6. Effectiveness of Counsel: Pleas: Waiver. A voluntary guilty plea or
plea of no contest generally waives all defenses to a criminal charge;
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.
7. Statutes: Appeal and Error. The mode and manner of appeal is statu-
tory, and a litigant who complies with the requirements of the applicable
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STATE v. BLAKE
Cite as 310 Neb. 769statute is entitled to a review of the case to the extent of the scope pro-
vided by law.
8. Courts: Statutes: Legislature. It is not the function of the courts to
make statutory law, but instead to interpret such laws devised by the
Legislature.
9. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error.
The appellate jurisdiction of a court is contingent upon timely compli-
ance with constitutional or statutory methods of appeal.
10. Affidavits: Time: Appeal and Error. The timing of the appellant’s
execution of the poverty affidavit is not fundamental to the concept of
an “affidavit” set forth in Neb. Rev. Stat. § 25-2301.01 (Reissue 2016).
11. Affidavits: Time: Fraud. The staleness of the execution of the poverty
affidavit is a relevant consideration by the district court and a proper
basis for an objection under Neb. Rev. Stat. § 25-2301.02 (Reissue
2016), which shall be made within 30 days after the filing of the appli-
cation or at any time if the ground for the objection is that the initial
application was fraudulent.
12. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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 amount of violence
involved in the commission of the crime.
13. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
14. Postconviction: Effectiveness of Counsel: Final Orders: Appeal and
Error. When a postconviction motion alleges a claim of ineffective
assistance based on counsel’s failure to file a direct appeal, which,
alongside other claims of ineffective assistance of counsel, requests as
relief a new direct appeal, the district court must first address the claim
that counsel was ineffective for failing to file a direct appeal and enter a
final order on that claim only.
15. Effectiveness of Counsel: Proof. 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.
16. Sentences: Evidence: Presentence Reports: Presumptions: Appeal
and Error. Absent affirmative evidence to the contrary, an appel-
late court will presume that the sentencing court fulfilled its statutory
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310 Nebraska Reports
STATE v. BLAKE
Cite as 310 Neb. 769obligation to give a presentence investigation report due consideration,
whether or not any particular aspect of the report was highlighted by
defense counsel.
17. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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. Otherwise, the ineffective assistance of trial counsel issue will
be procedurally barred.
18. Postconviction: Effectiveness of Counsel: Appeal and Error. The nec-
essary specificity of allegations of ineffective assistance of trial counsel
on direct appeal for purposes of avoiding waiver requires, at a mini-
mum, allegations of deficient performance described with enough par-
ticularity for an appellate court to make a determination of whether the
claim can be decided upon the trial record and also for a district court
later reviewing a potential petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate court.
19. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
20. Effectiveness of Counsel: Witnesses: Appeal and Error. When the
claim of ineffective assistance on direct appeal involves uncalled wit-
nesses, vague assertions that counsel was deficient for failing to call
“witnesses” are little more than placeholders and do not sufficiently
preserve the claim. However, the appellate court does not need specific
factual allegations as to what the person or persons would have said,
which will not be found in the appellate record.
21. Appeal and Error. Where an appellant’s brief contains conclusory
assertions unsupported by a coherent analytical argument, the appellant
fails to satisfy the requirement that the party asserting the alleged error
must both specifically assign and specifically argue it in the party’s ini-
tial brief.
22. Claims. A claim insufficiently stated is no different than a claim not
stated at all.
23. Rules of the Supreme Court: Appeal and Error. When a party fails to
follow the rules of the Nebraska Supreme Court, an appellate court may
proceed as though the party had failed to file a brief or, alternatively,
may examine the proceedings for plain error.
24. Appeal and Error. An argument that does little more than restate an
assignment of error does not support the assignment, and an appellate
court will not address it.
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STATE v. BLAKE
Cite as 310 Neb. 76925. Effectiveness of Counsel. Counsel is not deficient for failing to file a
meritless motion.
26. Effectiveness of Counsel: Motions to Suppress: Appeal and Error.
Allegations on direct appeal of ineffective assistance of trial counsel for
failing to make a motion under some broad category, such as a motion
to suppress or a motion to quash, without more detail as to the subject
of and grounds for the motion, are, like claims for failing to investigate
or call “witnesses,” mere placeholders.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed in part, and in part
vacated.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
In a new direct appeal, the defendant raises claims that his
sentence was excessive and that his plea and sentence were
the result of ineffective assistance of trial counsel. The State
asserts we lack jurisdiction over the appeal. The defendant’s
notice of appeal, motion to proceed in forma pauperis, and
poverty affidavit were all filed within 30 days after the final
order granting the new direct appeal, as set forth by statute. 1
The district court granted the application to proceed in forma
pauperis, and § 29-2306 provides in part: “If an application
to proceed in forma pauperis is filed and granted, the Court
of Appeals or Supreme Court shall acquire jurisdiction of the
case when the notice of appeal is filed with the clerk of the
district court.” However, the State points out that the poverty
1
See Neb. Rev. Stat. §§ 25-2301.01 and 29-2306 (Reissue 2016).
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STATE v. BLAKE
Cite as 310 Neb. 769affidavit had been executed by the defendant more than 45
days before the filing of the notice of appeal and, Neb. Ct. R.
App. P. § 2-101(B)(4) (rev. 2015), in effect at the relevant time
period, stated:
The clerk of the district court shall within 2 business days
of receipt of a notice of appeal send the following items
to the Clerk of the Supreme Court:
....
(4) [A] copy of the application to proceed in forma
pauperis and accompanying poverty affidavit which has
been executed no more than 45 days prior to the filing of
notice of appeal[.]
II. BACKGROUND
Brandon L. Blake presents a new direct appeal from his
plea-based conviction and his sentence for attempted sexual
assault in case No. CR 19-527. Blake’s appellate counsel is
different from his trial counsel.
1. Postconviction Proceedings
In pro se motions filed February 11, 2020, Blake alleged his
plea in case No. CR 19-527 was the result of ineffective assist­
ance, that counsel was ineffective in failing to present mitigat-
ing evidence at sentencing relating to Blake’s mental health,
and that his attorney denied him his right to effective assistance
of counsel by refusing his request to file a direct appeal. He
asked for appointment of counsel.
The State summarized these allegations as presenting two
claims: whether counsel was ineffective for failing to uncover
and present evidence of Blake’s mental health and whether
counsel denied Blake his right to a direct appeal. The State
argued that the trial record affirmatively showed trial counsel
was not ineffective on the first claim but that it was insufficient
to determine the second claim.
Following a hearing, the court ordered, on June 12, 2020,
that counsel be appointed for Blake with respect to his claim
that he was deprived of his direct appeal. The court scheduled
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STATE v. BLAKE
Cite as 310 Neb. 769a limited evidentiary hearing on that claim. The court reserved
its ruling on Blake’s other ineffective assistance claim and
reserved its ruling on a motion by the State to deny that claim
without an evidentiary hearing.
The evidentiary hearing on the claim for a new direct appeal
was held on August 19, 2020. At the hearing, Blake’s post-
conviction counsel submitted the deposition of trial counsel,
who answered questions pertaining to Blake’s advisement of
his right to appeal and any request made by Blake to appeal in
case No. CR 19-527.
After the hearing, the court ruled, on October 2, 2020, that
Blake’s trial counsel was deficient in denying Blake his right
to a direct appeal, of which Blake had not been advised. The
court granted as relief a new direct appeal. The court then
“denied” the remaining issues raised by Blake’s motion for
postconviction relief without an evidentiary hearing.
On October 27, 2020, Blake timely filed with the district
court his notice of appeal for purposes of his new direct
appeal; this notice was filed within 30 days after the court’s
order granting such postconviction relief. 2 Blake filed with
the district court his application to proceed in forma pauperis
on October 27, also within 30 days after the order. Blake filed
with the district court his poverty affidavit on October 30,
within 30 days after the order. The affidavit reflects it was
signed by Blake and notarized on July 2, which was 117 days
before Blake filed his notice of appeal. The State did not file an
objection under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016),
raising the staleness of the poverty affidavit or any other issue.
The district court granted Blake’s motion to proceed in forma
pauperis, issuing an order on October 30, stating that Blake
may proceed with his appeal in forma pauperis, with all associ-
ated costs to be borne by Lancaster County.
In November 2020, the Nebraska Court of Appeals granted
the State’s motion to summarily dismiss Blake’s new direct
appeal based on our appellate rule, § 2-101(B)(4):
2
See State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007).
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STATE v. BLAKE
Cite as 310 Neb. 769The clerk of the district court shall within 2 business days
of receipt of a notice of appeal send the following items
to the Clerk of the Supreme Court:
....
(4) [A] copy of the application to proceed in forma
pauperis and accompanying poverty affidavit which has
been executed no more than 45 days prior to the filing of
notice of appeal[.]
The Court of Appeals noted that Blake’s affidavit was executed
more than 45 days before the filing of the notice of appeal.
Another poverty affidavit was filed on December 4, which was
executed by Blake on November 21.
In February 2021, the Court of Appeals granted Blake’s
motion for rehearing. In his brief in support of the motion, he
argued that the appellate rule referring to the timing of the exe-
cution of the poverty affidavit was not jurisdictional, because
such timing requirement for execution is found nowhere in
the statutes governing appellate jurisdiction and the right of
appeal in Nebraska is purely statutory. The Court of Appeals
reinstated Blake’s new direct appeal and directed the parties
to brief the question of jurisdiction. Pursuant to our authority
to regulate the dockets of the appellate courts, we moved the
appeal to our docket.
2. Underlying Proceedings
The record shows that Blake was originally charged in case
No. CR 19-527 with first degree sexual assault, in violation of
Neb. Rev. Stat. § 28-319(1)(a) and (b) (Reissue 2016), with a
sentencing range of 1 to 50 years’ imprisonment. The charge
stemmed from an incident that occurred between May 24,
2012, and February 13, 2013, in which Blake subjected the vic-
tim to sexual penetration without the victim’s consent or when
Blake knew or should have known the victim was mentally or
physically incapable of resisting or appraising the nature of
his conduct.
Pursuant to a plea agreement, the charge was reduced
to attempted first degree sexual assault, in violation of
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BLAKE
Cite as 310 Neb. 769§ 28-319(1)(c) and Neb. Rev. Stat. § 28-201(4)(b) (Cum.
Supp. 2014), with a sentencing range of 0 to 20 years’ impris-
onment. The amended information for case No. CR 19-527 is
not in the transcript.
Under the plea agreement, Blake also agreed to plead no
contest in case No. CR 19-914 to an assault charge stemming
from an incident while in jail. And the State agreed to dismiss
a second charge for a different assault Blake had committed
while in jail.
(a) Factual Basis and Acceptance of Plea
The factual basis for the plea in case No. CR 19-527
described that the victim, while he was in fifth or sixth grade,
attended school with Blake, who at the time was in a high
school grade. They were friends. One day at lunchtime, Blake
threatened the victim to make him stay outside. Blake and the
victim then went to a nearby wooded area, where Blake told
the victim to pull down his pants and bend over.
The victim complied, Blake put his penis in the victim’s
anus, and afterward, Blake used a pocketknife to make several
shallow cuts on the victim’s back. Blake told the victim he
would kill him if he told anyone what Blake had done. A staff
member found the two in the wooded area after they were fully
dressed. Both acted as if nothing was wrong.
When the sexual assault was finally disclosed in 2018,
the scars on the victim’s back were still visible. The victim
and Blake exchanged correspondence while Blake was in jail
between October 2018 and January 2019, in which the victim
confronted Blake about the assault and Blake apologized. In
one letter, Blake wrote, “I had a knife to make you give me
what I wanted. It was wrong, I see that now but then I didn’t
care who I hurt as long as I got what I wanted.” Blake admitted
to sending the letters.
Before accepting the pleas, the court reviewed with Blake
in detail each prescription medication he was taking. Blake
affirmed that he understood the charges and that defense
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STATE v. BLAKE
Cite as 310 Neb. 769counsel had discussed with him all the possible defenses he
might have if he were to instead go to trial. Blake stated that he
believed his attorney was competent and that he was satisfied
with the job she had been doing. Following a plea colloquy, the
court accepted Blake’s pleas.
(b) Sentencing
The presentence investigation (PSI) report considered by the
court prior to sentencing was 400 pages. It showed as Blake’s
adult criminal history a recent conviction in another case, case
No. CR 18-846, for attempted first degree sexual assault, the
conviction for assault in case No. CR 19-914 that was part
of the plea bargain agreement, two prior convictions for third
degree assault, and a conviction for disturbing the peace.
Blake had earned his diploma through the GED program
and completed a “DBT skills program” while incarcerated. A
review of misconduct reports showed Blake “routinely violates
the rules.” Blake described himself as a “sex addict.” However,
he denied having committed the attempted sexual assault for
which he was being sentenced.
The PSI report demonstrated that Blake has been diagnosed
with adjustment disorder, adolescent antisocial behavior, mood
disorder, “ADHD,” borderline intellectual functioning, post-
traumatic stress disorder, schizophreniform disorder, and oppo-
sitional defiant disorder. An evaluation completed in November
2019 showed Blake was in the “very high or high-risk range”
to reoffend.
The PSI report showed Blake had become a state ward
at the age of 9. Blake reported he was physically abused by
his father and had experienced sexual abuse in some of his
­out-of-home placements. Before his removal from his parents’
home, Blake “walked in on [his parents] having sex ‘all the
time,’” because they did not lock their door and he did not
have his own room.
In his placements as a juvenile, Blake had a history of
inappropriate sexual behavior toward younger peers. This
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STATE v. BLAKE
Cite as 310 Neb. 769included stealing underwear, “grooming,” writing inappropriate
letters, attempting to be alone with younger peers, and attempt-
ing to put his penis through vent holes between rooms. This
behavior included an incident where he smeared feces in the
shower so it would drop onto a younger peer’s head. Blake was
hospitalized on numerous occasions for mental health reasons.
His intelligence quotient is in the average range.
At the sentencing hearing held in December 2019, defense
counsel affirmed that she had reviewed the PSI report and
stated that she was not aware of any additions, corrections, or
deletions that needed to be made to the report. Blake stated
that he was given the opportunity to discuss the PSI report with
defense counsel and did not require any more time to do so. He
did not know of anything that needed to be added, corrected, or
taken out of the report.
Defense counsel pointed out that Blake was only 25 years
old at the time of sentencing and was 18 years old at the time
of the crime. Defense counsel acknowledged that Blake was
evaluated to be at a high risk to reoffend, but pointed out that
he was still a young person and had been working with mental
health services. Defense counsel highlighted that the PSI report
showed Blake was involved with the Department of Health
and Human Services throughout his youth, “has suffered from
a number of mental health issues,” and was making efforts
to improve by “working with the mental health people in the
Lincoln Correctional Center on his issues.”
The State asked the court to consider that a weapon and
the use of force was a part of the crime under consideration.
Additionally, the State asked the court to take into account that
the victim was only 11 or 12 years old when Blake attempted
to sexually assault him.
On December 6, 2019, the court sentenced Blake to 9 to 14
years’ imprisonment, to be served consecutively to the sentence
under case No. CR 19-914 of 18 to 36 months’ imprison-
ment and any other sentence previously imposed. The court
explained that imprisonment was necessary for the protection
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STATE v. BLAKE
Cite as 310 Neb. 769of the public because the risk is substantial that, during any
period of probation, Blake would engage in additional criminal
conduct. Further, a lesser sentence would depreciate the seri-
ousness of his crimes and promote disrespect for the law.
(c) Prior Conviction in Case No. CR 18-846
Trial counsel did not file a direct appeal. At the evidentiary
hearing on Blake’s postconviction motion seeking a new direct
appeal for case No. CR 19-527, the court received into evidence
the orders, minute entries, and transcription of the hearings in
case No. CR 18-846, Blake’s prior plea-based conviction of
attempted first degree sexual assault. He entered his plea in
case No. CR 18-846 approximately 9 months before he entered
his plea in case No. CR 19-527. The court in case No. CR
18-846 had conducted a competency hearing before accepting
Blake’s plea. The court determined Blake to be competent. The
discussion at the hearing reflects that the psychological exam-
iner found Blake to be competent and that both Blake and his
attorney assured the court of his competency.
The factual basis for the plea consisted of reports by the
victim, who was 14 years old at the time, that between January
and March 2018, Blake had penile-vaginal intercourse with the
victim five or six times. The victim described that she was not
comfortable having intercourse with Blake but that she did not
stop him because she was scared. During one of the encoun-
ters, the victim’s 14-year-old friend was in the room. In April
2018, the victim began receiving threats from Blake through
social media. The court sentenced Blake to 13 to 18 years’
imprisonment.
III. ASSIGNMENTS OF ERROR
Blake assigns that the district court imposed an excessive
sentence for his conviction of attempted first degree sexual
assault in case No. CR 19-527. Blake assigns that his trial
counsel was ineffective in case No. CR 19-527 when she did
not (1) present evidence regarding Blake’s mental capacity,
(2) properly investigate Blake’s claims by interviewing certain
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STATE v. BLAKE
Cite as 310 Neb. 769named witnesses and getting statements from them, (3) pursue
a motion to quash the information or motion to suppress state-
ments and evidence taken from Blake during the course of the
investigation of the allegations contained in the information,
or (4) present evidence of Blake’s childhood background of
physical and sexual abuse.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision. 3
[2,3] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 4 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 5
[4,5] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved on direct appeal; the determining factor is whether
the record is sufficient to adequately review the question. 6 The
record is sufficient to resolve on direct appeal a claim of inef-
fective assistance of counsel if the record affirmatively proves
or rebuts either deficiency or prejudice with respect to the
defendant’s claims. 7
[6] A voluntary guilty plea or plea of no contest gener-
ally waives all defenses to a criminal charge; thus, when a
defendant pleads guilty or no contest, he or she is limited to
3
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120(2019).
4
State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
5
Id.6
State v. Wood, ante p. 391, 966 N.W.2d 825 (2021).
7
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STATE v. BLAKE
Cite as 310 Neb. 769challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist­
ance of counsel. 8
V. ANALYSIS
1. Jurisdiction
We first address the State’s contention that we lack jurisdic-
tion over Blake’s new direct appeal. The State argues we have
no appellate jurisdiction over this case because the poverty
affidavit Blake filed with the district court as part of his appli-
cation to proceed in forma pauperis, which was granted by the
district court without any objection below, was executed more
than 45 days before he filed his notice of appeal. Blake did not
pay a docket fee within 30 days after the judgment, relying
instead on the court’s order allowing him to proceed in forma
pauperis and ordering that all costs associated with the appeal
be borne by the county.
[7-9] The Nebraska Constitution, in Neb. Const. art. V, § 2,
limits appellate jurisdiction to “such appellate jurisdiction as
may be provided by law.” We have explained that the Nebraska
Constitution allocates the regulation of appellate jurisdiction
to the Legislature, not to this court. 9 The mode and manner
of appeal is statutory, and a litigant who complies with the
requirements of the applicable statute is entitled to a review of
the case to the extent of the scope provided by law. 10 It is not
the function of the courts to make statutory law, but instead to
interpret such laws devised by the Legislature. 11 The appellate
jurisdiction of a court is contingent upon timely compliance
with constitutional or statutory methods of appeal. 12
8
State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
9
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
10
From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953).
11
Id.12
In re Interest of L.T., 295 Neb. 105, 886 N.W.2d 525 (2016).
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Cite as 310 Neb. 769Neb. Rev. Stat. § 25-1912(1) (Cum. Supp. 2020) sets forth
the procedure for perfecting an appeal and focuses on the
“filing”—within 30 days after the judgment, decree, or final
order—of the notice of appeal and a docket fee (except as
provided in the in forma pauperis statutes). Section 25-1912(1)
provides:
The proceedings to obtain a reversal, vacation, or modifi-
cation of judgments and decrees rendered or final orders
made by the district court, including judgments and sen-
tences upon convictions for felonies and misdemeanors,
shall be by filing in the office of the clerk of the district
court in which such judgment, decree, or final order
was rendered, within thirty days after the entry of such
judgment, decree, or final order, a notice of intention to
prosecute such appeal signed by the appellant or appel-
lants or his, her, or their attorney of record and, except as
otherwise provided in sections 25-2301 to 25-2310 and
29-2306 and subsection (4) of section 48-638, by depos-
iting with the clerk of the district court the docket fee
required by section 33-103.
Subsection (4) of § 25-1912 sets forth that the appeal shall
be deemed “perfected” when such notice of appeal and docket
fee (except as provided by the in forma pauperis statutes)
have been filed and that “no step other than the filing of such
notice of appeal and the depositing of such docket fee shall be
deemed jurisdictional.” In full, § 25-1912(4) states:
Except as otherwise provided in subsection (3) of this
section, sections 25-2301 to 25-2310 and 29-2306, and
subsection (4) of section 48-638, an appeal shall be
deemed perfected and the appellate court shall have juris-
diction of the cause when such notice of appeal has been
filed and such docket fee deposited in the office of the
clerk of the district court. After being perfected no appeal
shall be dismissed without notice, and no step other than
the filing of such notice of appeal and the depositing of
such docket fee shall be deemed jurisdictional.
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Cite as 310 Neb. 769Section 29-2306 describes that the timing of the filing of the
application to proceed in forma pauperis by a defendant in a
criminal case must, like a docket fee, be within 30 days after
the judgment, order, or sentence. Further, § 29-2306 states that
“[i]f an application to proceed in forma pauperis is filed and
granted, the Court of Appeals or Supreme Court shall acquire
jurisdiction of the case when the notice of appeal is filed with
the clerk of the district court.” No payment will be required
unless the court denies the application. Section 29-2306 pro-
vides in full:
If a defendant in a criminal case files, within thirty
days after the entry of the judgment, order, or sentence,
an application to proceed in forma pauperis in accordance
with sections 25-2301 to 25-2310 with the clerk of the
district court, then no payment of the docket fee shall
be required of him or her unless the defendant’s applica-
tion to proceed in forma pauperis is denied. The clerk of
the district court shall forward a certified copy of such
application, including the affidavit, to the Clerk of the
Supreme Court. If an application to proceed in forma
pauperis is filed and granted, the Court of Appeals or
Supreme Court shall acquire jurisdiction of the case when
the notice of appeal is filed with the clerk of the district
court. In cases in which an application to proceed in
forma pauperis is granted, the amount of the costs shall be
endorsed on the mandate and shall be paid by the county
in which the indictment was found.
Section 25-2301.01 sets forth that the application to pro-
ceed in forma pauperis shall include an affidavit stating that
the affiant is unable to pay the fees and costs or give security
required to proceed with the case; the nature of the action,
defense, or appeal; and the affiant’s belief that he or she is
entitled to redress.
Under § 25-2301.02, the application to proceed in forma
pauperis shall be granted unless there is an objection that the
party filing the application has sufficient funds to pay costs,
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Cite as 310 Neb. 769fees, or security or is asserting legal positions which are frivo-
lous or malicious. Further, § 25-2301.02(1) describes that any
objection to the application, by the court or any interested
person, shall be made within 30 days after the filing of the
application or at any time if the ground for the objection is that
the initial application was fraudulent. An evidentiary hearing
on an objection shall be held unless it is by the court’s own
motion on the grounds that the applicant is asserting legal posi-
tions that are frivolous or malicious, but the court denying the
application on its own motion shall provide a written statement
of its reasons, findings, and conclusions for denial. 13 The appli-
cant may appeal the denial of the application. 14
Neb. Rev. Stat. § 25-2310 (Reissue 2016) provides that
any applicant who fraudulently fails to disclose material
assets or income for the purpose of invoking the privileges of
§§ 25-2301 to 25-2310 is guilty of perjury.
No statute addresses the timing of the execution of the
poverty affidavit that § 25-2301.01 says shall accompany the
application to proceed in forma pauperis. The State relies on
our appellate rule, § 2-101, for “Docketing the case.”
Subsection (A) of § 2-101 concerns perfecting the appeal
and focuses on the timely filing of the notice of appeal and
docket fee or application to proceed in forma pauperis and the
accompanying poverty affidavit. Subsection (A) of § 2-101, as
in effect at the relevant time, stated in full:
Perfecting the Appeal. Every appeal shall be deemed
perfected when the notice of appeal as provided in
§ 2-101(B)(1)(a) and the docket fee required by Neb.
Rev. Stat. § 33-103 or an application to proceed in forma
pauperis and a poverty affidavit pursuant to Neb. Rev.
Stat. § 29-2306 or Neb. Rev. Stat. § 25-2301 et seq. have
been filed in the office of the clerk of the trial court and
such application has been granted by that court.
13
See § 25-2301.02(1).
14
See id.
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Cite as 310 Neb. 769Subsection (B) of § 2-101 concerns the clerk of the district
court’s obligations to forward documents to the Clerk of the
Supreme Court. Parts of § 2-101(B) overlap with the obliga-
tions set forth by §§ 25-1912 and 29-2306 for the clerk of the
district court to forward to the Clerk of the Supreme Court
the certified copy of the notice of appeal, the docket fee or
application to proceed in forma pauperis and the accompa-
nying affidavit, and the transcript. Other subsections, such
as § 2-101(B)(4), do not overlap with any current statutory
provision. According to § 2-101(B), as in effect at the rel-
evant time:
The clerk of the district court shall within 2 business days
of receipt of a notice of appeal send the following items
to the Clerk of the Supreme Court:
....
(4) [A] copy of the application to proceed in forma
pauperis and accompanying poverty affidavit which has
been executed no more than 45 days prior to the filing of
notice of appeal.
In State v. Parmar, 15 we explained that the statutes govern-
ing appellate jurisdiction address the timing of the “filing” of
certain documents. When a poverty affidavit is substituted for
the docket fee, it must be filed within the time and in the man-
ner required for filing the docket fee. 16 We pointed out that the
statutes governing appellate jurisdiction, however, do not set
forth any mandate pertaining to the timing of the affidavit’s
execution, which simply refers to the signing and notarizing of
the document. We therefore found no merit to the defendant’s
argument in Parmar that he had perfected his appeal by, in lieu
of filing a separate application to proceed in forma pauperis,
requesting within his notice of appeal that we recognize a
poverty affidavit predating the trial court’s order, but executed
within 45 days of the notice of appeal in accordance with
15
State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
16
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Cite as 310 Neb. 769our appellate rules. We explained that, to perfect an appeal, the
affidavit must have been filed within 30 days after the rendition
of the judgment as required by statute, and our appellate rule
concerning execution within 45 days “says nothing as to when
the affidavit must be filed.” 17
Subsequently, in State v. Dallmann, 18 we addressed the
newly adopted language of § 29-2306 that “[i]f an application
to proceed in forma pauperis is filed and granted, the Court of
Appeals or Supreme Court shall acquire jurisdiction of the case
when the notice of appeal is filed with the clerk of the district
court.” We noted that this language was adopted at the same
time § 25-2301.02 was created, which, as set forth above,
describes the process of objecting to the application to proceed
in forma pauperis and the district court’s holding an eviden-
tiary hearing on the objection before it determines whether
to grant the application. We explained, “Section 25-2301.02
makes clear that challenges to the ability of a defendant to pro-
ceed in forma pauperis are to occur in the district court and that
the district court is charged with the responsibility of granting
or denying the motion to proceed in forma pauperis.” 19
We held that under the statutory scheme as amended, an objec-
tion that the affidavit failed, in accordance with § 25-2301.01,
to state the nature of the action, defense, or appeal, and the
belief that the affiant is entitled to redress, must be raised
in the district court or else it is waived. 20 In Dallmann, we
indicated that such details of the allegations in the affidavit,
which are described in § 25-2301.01, are not jurisdictional,
but are instead matters to be considered by the district court
in determining, under § 25-2301.02, whether the party fil-
ing the application has sufficient funds to pay costs, fees, or
17
See id. at 361, 586 N.W.2d at 283.
18
State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
19
Id. at 947, 621 N.W.2d at 96.
20
See State v. Dallmann, supra note 18.
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Cite as 310 Neb. 769security or is asserting legal positions which are frivolous
or malicious. 21
In Dallmann, we noted that even under the prior statutory
scheme, we had held 22 that the lower court retains jurisdiction
and has the duty to determine if the allegations of poverty are
true and the appeal is taken in good faith. We concluded, “It is
not a function of this court to determine whether an affidavit to
proceed in forma pauperis contains specific language stating the
nature of the case and that the affiant is entitled to redress,” 23
because, under § 29-2306, “‘[i]f an application to proceed in
forma pauperis is filed and granted, the Court of Appeals or
Supreme Court shall acquire jurisdiction of the case when the
notice of appeal is filed with the clerk of the district court.’” 24
We accordingly addressed in Dallmann the underlying mer-
its of an appeal for which the district court had sustained
the appellant’s motion to proceed in forma pauperis, even
though the appellant’s poverty affidavit did not state the nature
of the action or that the appellant believed he was entitled
to redress.
Later, in State v. Ruffin, 25 we addressed that aspect of
§ 25-2301.01 referring to “the affiant” setting forth in the
“affidavit” an inability to pay the fees and costs, which lan-
guage was previously found in Neb. Rev. Stat. § 25-2301(Reissue 1989). We reaffirmed our holding in Dallmann as it
pertained to the failure to include statements in the poverty
affidavit of the nature of the action, defense, or appeal, and
the belief that the affiant is entitled to redress. 26 However, we
found still applicable under the amended statutory scheme a
long line of case law holding that, absent good cause evident
21
See id.22
See Flora v. Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995).
23
State v. Dallmann, supra note 18, 260 Neb. at 948, 621 N.W.2d at 96.
24
Id. at 945, 621 N.W.2d at 95, quoting § 29-2306 (emphasis omitted).
25
State v. Ruffin, 280 Neb. 611, 789 N.W.2d 19 (2010).
26
See id.- 788 -
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Cite as 310 Neb. 769in the record, it is a jurisdictional defect for the impoverished
appellant to fail to personally sign before a notary the affidavit
that substitutes for the payment of fees and costs and the post-
ing of security. 27
In Ruffin, we explained that not only does the affidavit
become hearsay when signed by the attorney, but it places that
attorney in a position of a witness, thus compromising his role
as an advocate. And it is obvious that it is the financial condi-
tion of the party as affiant and not the financial wherewithal
of the attorney that is relevant. 28 We said that the Legislature’s
use of the word “affidavit” in § 25-2301.01 was deliberate
and “continues to require the hallmarks of an affidavit such as
the signature of the affiant and a certificate of an authorized
officer.” 29 We held in Ruffin that despite the district court’s
having granted the appellant’s motion to proceed in forma pau-
peris, appellate jurisdiction did not vest because the poverty
affidavit was signed by the appellant’s attorney and there was
no good cause shown in the record why the appellant could not
sign the affidavit.
[10] We conclude in the present appeal that the timing of
the appellant’s execution of the poverty affidavit is not, like
an “affiant” personally signing the “affidavit,” fundamental to
the concept of an “affidavit” set forth in § 25-2301.01, and we
can find no other statutory provision or case law that makes
the relative staleness of the execution of a poverty affidavit a
jurisdictional matter. As we illustrated in Parmar, the statutes
describing the mode and manner of obtaining appellate juris-
diction nowhere refer to the timing of execution; they only
refer to the timing of “filing.” 30
[11] Again, the responsibility of granting or denying a
motion to proceed in forma pauperis lies with the district
27
See id.
28
See id.
29
Id. at 618, 789 N.W.2d at 25.
30
See State v. Parmar, supra note 15.
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Cite as 310 Neb. 769court, and pursuant to § 25-2301.02, “An application to pro-
ceed in forma pauperis shall be granted unless there is an
objection that the party filing the application (a) has sufficient
funds to pay costs, fees, or security or (b) is asserting legal
positions which are frivolous or malicious.” The staleness of
the execution of the poverty affidavit is a relevant consider-
ation by the district court in determining whether the party
filing the application has sufficient funds to pay costs, fees,
or security. Thus, the relative staleness of the execution of
poverty affidavit is a proper basis for an objection under
§ 25-2301.02, which shall be made within 30 days after the
filing of the application or at any time if the ground for the
objection is that the initial application was fraudulent. No such
objection occurred in this matter.
Any issue pertaining to the staleness of the affidavit, like
alleged inadequacies of the appellant’s statements in the affida-
vit pertaining to the nature of the action and belief of entitle-
ment to redress, is a matter to be evaluated by the district court
in the course of determining whether to grant the defendant’s
application to proceed in forma pauperis. The relative stale-
ness of the execution of a poverty affidavit does not change
the mandate of § 29-2306 that “[i]f an application to proceed
in forma pauperis is filed and granted, the Court of Appeals or
Supreme Court shall acquire jurisdiction of the case when the
notice of appeal is filed with the clerk of the district court” nor
the mandate of § 25-1912(4) that “no step other than the filing
of such notice of appeal and the depositing of such docket fee
shall be deemed jurisdictional.”
Once the lower court grants the application to proceed
in forma pauperis, the county becomes responsible for the
docket fee and other costs associated with the appeal. Lack of
staleness of execution under a particular measure of days is
not an essential prerequisite to appellate jurisdiction. Section
25-1912 must be read together with related statutes, including
§ 29-2306, and, under the current statutory scheme, the juris-
dictional prerequisite of a filing fee is satisfied when the lower
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Cite as 310 Neb. 769court grants in forma pauperis status after considering a timely
filed application and accompanying affidavit that, unless good
cause is shown in the record why the appellant could not sign
the affidavit, was executed personally by the impoverished
appellant.
Of course, the grant of in forma pauperis status does not
preclude requests that the clerk of the district court obtain and
forward to the Clerk of the Supreme Court a more updated
poverty affidavit, and it does not immunize the appellant from
later being punished for perjury if the appellant attempted to
deceive the court by providing information that, under a more
current affidavit, would no longer be true. 31 But the appellant
relies upon a district court’s order granting in forma pauperis
status when the appellant fails to timely file a docket fee. We
cannot deem the staleness of the execution of a timely filed
poverty affidavit “jurisdictional” and thereby circumvent the
district court’s statutorily conferred duty and discretion to
determine, as a factual matter, whether the party filing the
application “(a) has sufficient funds to pay costs, fees, or secu-
rity or (b) is asserting legal positions which are frivolous or
malicious.” 32
Indeed, the State misreads our appellate rule, § 2-101(B)(4),
in arguing that the 45-day period for execution of a poverty
affidavit is a bright-line jurisdictional rule. The 45-day period
for execution described in § 2-101(B)(4) does not purport to
have that effect. The 45-day requirement is not part of the
rule’s description of how to perfect an appeal.
The 45-day staleness reference falls instead under the head-
ing, “Forwarding to Supreme Court,” and is contained within a
long list of items that the clerk of the district court shall send
to the Clerk of the Supreme Court. An appeal is an impor-
tant part of the legal process, especially when an appellant’s
liberty is at stake. Our appellate rules endeavor to prevent
31
See § 25-2310.
32
See § 25-2301.02.
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Cite as 310 Neb. 769misconceptions that could result in the loss of appeals, not to
create them.
Section 2-101(A), describing the means to perfect an appeal,
is clear. Thereunder, the appeal is perfected when the notice of
appeal and the docket fee or an application to proceed in forma
pauperis and a poverty affidavit have been filed in the office
of the clerk of the trial court and such application has been
granted by that court. Blake fulfilled these requirements. He
timely filed his notice of appeal, he timely filed his application
to proceed in forma pauperis, and he timely filed his poverty
affidavit, all within 30 days after the final order as set forth
by statute. Further, the affidavit was signed by Blake before
a notary.
We disagree with the State’s argument that we lack jurisdic-
tion over this new direct appeal because Blake’s poverty affi-
davit was signed and notarized more than 45 days before Blake
timely filed his notice of appeal.
We turn to the assignments of error raised in Blake’s new
direct appeal. These consist of a challenge to the sentence as
excessive and several claims of ineffective assistance of trial
counsel.
2. Excessive Sentence
When sentences imposed within statutory limits are alleged
on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in consider-
ing well-established factors and any applicable legal princi-
ples. 33 A judicial abuse of discretion exists only when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 34
[12,13] 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,
33
State v. Greer, supra note 4.
34
See State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
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Cite as 310 Neb. 769(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 amount of violence involved in the com-
mission of the crime. 35 The sentencing court is not limited to
any mathematically applied set of factors, but the appropriate-
ness of the sentence is necessarily a subjective judgment that
includes the sentencing judge’s observations of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. 36
Blake asserts his sentence was excessive in light of the
mitigating factors of his mental health diagnoses and history
of being physically and sexually abused as a child. Appellate
counsel describes that Blake grew up a “ticking sexual time-
bomb” and states that the State failed to create an ongoing
treatment plan which could have prevented him from later
“act[ing]-out” through sexual assault. 37
There is no indication from the record that the trial court
ignored Blake’s mental health diagnoses and history of being
physically and sexually abused or that it considered impermis-
sible or unreasonable factors in fashioning Blake’s sentence.
Blake committed a violent crime against a younger child and
the PSI report shows he did not cease preying on younger vic-
tims and committing assaults since the time when this crime
was committed. Even in light of Blake’s mental health strug-
gles and unfortunate circumstances growing up, the district
court’s sentence of 9 to 14 years’ imprisonment, to run con-
secutively with other sentences, was well within the sentencing
range of 0 to 20 years’ imprisonment 38 and was not clearly
against justice or conscience, reason, and evidence. We find no
merit to Blake’s assignment that the district court imposed an
excessive sentence.
35
State v. Greer, supra note 4.
36
Id.37
Brief for appellant at 9.
38
See §§ 28-319 and 28-201(4)(b).
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Cite as 310 Neb. 7693. Determinations of Claims Beyond
Final Order of New Direct Appeal
[14] Before turning to Blake’s assignments of error in
his new direct appeal alleging ineffective assistance of trial
counsel, we address another procedural matter relating to the
fact that the district court’s postconviction order purported to
dispose of those claims. We have explained that when a post­
conviction motion alleges a claim of ineffective assistance
based on counsel’s failure to file a direct appeal, which, along-
side other claims of ineffective assistance of counsel, requests
as relief a new direct appeal, the district court must first
address the claim that counsel was ineffective for failing to file
a direct appeal and enter a final order on that claim only. 39
If it does not, we vacate that portion of the order that pre-
maturely addresses the claims unrelated to the request for relief
of a new direct appeal. 40 If the new direct appeal is granted by
the district court, then the other postconviction claims might
be raised and determined on direct appeal, thereby preventing
needless determinations by the district court on the underlying
postconviction motion. 41
Because Blake is represented by a different attorney on
direct appeal than at trial, he has raised the same claims of
ineffective assistance of counsel that he raised in his post-
conviction motion granting this new direct appeal. He in fact
must raise those claims in this direct appeal or be procedur-
ally barred from asserting them in a postconviction motion. 42
We vacate the district court’s order to the extent that it
denied those claims without an evidentiary hearing, and we
consider Blake’s ineffective assistance claims anew in this
direct appeal.
39
See State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020).
40
See, id.; State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
41
See State v. Determan, supra note 40.
42
See State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
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Cite as 310 Neb. 7694. Claims of Ineffective Assistance
of Trial Counsel
Broadly, Blake asserts claims of ineffective assistance in
relation to trial counsel’s representation during sentencing and
advice to him to plead no contest to the underlying charge.
(a) Ineffective Assistance at Sentencing
[15] We find the record affirmatively rebuts Blake’s conten-
tion that his sentence was the result of ineffective assistance of
trial counsel. To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 43 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense. 44 The record is sufficient to resolve on direct
appeal a claim of ineffective assistance of counsel if the record
affirmatively proves or rebuts either deficiency or prejudice
with respect to the defendant’s claims. 45
Blake argues counsel was ineffective during sentencing,
first, by failing to present evidence of his “diminished mental
capacity.” 46 Second, Blake claims counsel was ineffective by
failing to present evidence of Blake’s childhood background as
a victim of physical and sexual abuse. We address each in turn.
(i) Diminished Mental Capacity
Blake claims he disclosed to his trial counsel his diminished
mental capacity during her representation in case No. CR
18-846, which disclosure led to Blake’s competency evalu-
ation in that case. Although he was ultimately found to be
competent, “none of that information was brought forward to
the district court prior to sentencing in this matter.” 47 Without
43
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
44
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
45
State v. Wood, supra note 6.
46
Brief for appellant at 9.
47
Id.
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Cite as 310 Neb. 769e­ laboration, Blake asserts that trial counsel was ineffective in
failing to bring to the attention of the district court the “con-
tents of his evaluation and diminished mental capacity” in
case No. CR 18-826 and that his sentence would have been
different had the “issue been brought to light at his sentencing
hearing or before, and included in his presentence investiga-
tion report.” 48
We note at the outset that Blake’s argument is somewhat
confusing and underdeveloped. As Blake concedes, the discus-
sion during the competency hearing in case No. CR 18-846
reflects that the court found Blake to be competent after
reviewing an evaluation finding him to be competent and hear-
ing Blake’s and his defense counsel’s assurances that Blake
was competent to enter his plea. The “contents of his evalua-
tion” thus appear to be that he was competent. 49 The PSI report
reviewed by the district court before sentencing Blake in this
case shows Blake’s intelligence quotient to be within the nor-
mal range. Both Blake and his counsel assured the court there
was nothing in the PSI report that needed to be added, cor-
rected, or taken out.
Blake does not suggest that we cannot determine this inef-
fective assistance of counsel claim on direct appeal, and we can
see no reason why Blake cannot better articulate what, exactly,
he believes trial counsel should have presented at the sentenc-
ing hearing. We surmise from his arguments that the only
information he believes the sentencing court in case No. CR
19-527 lacked was that another court had recently conducted a
competency hearing. We cannot find that counsel was ineffec-
tive in failing to add this information to the PSI report when it
is undisputed that Blake was found to be competent.
[16] Otherwise, Blake’s argument appears to be that trial
counsel was ineffective by failing to bring to the attention
of the district court what he refers to as his “diminished
48
Id. at 10.
49
Id.
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Cite as 310 Neb. 769mental capacity,” which we surmise refers to Blake’s mental
health diagnoses and hospitalizations, which were reflected in
the PSI report. Under Neb. Rev. Stat. § 29-2261 (Cum. Supp.
2020), the court “shall not impose sentence without first order-
ing a [PSI] of the offender and according due consideration
to a written report of such investigation.” Absent affirmative
evidence to the contrary, we will presume that the sentenc-
ing court fulfilled its statutory obligation to give a PSI report
due consideration, whether or not any particular aspect of the
report was highlighted by defense counsel. Here, the court
indicated at the sentencing hearing it had considered the PSI
report, and Blake does not suggest that there is any affirmative
evidence to be found outside the record demonstrating differ-
ently. The trial record refutes that Blake was prejudiced by
trial counsel’s failure to specifically bring to the court’s atten-
tion matters contained in the PSI report, which the court gave
due consideration.
(ii) Childhood Background
We similarly find the record affirmatively rebuts Blake’s
claim that trial counsel was ineffective by failing to present
evidence of his childhood background as a victim of physical
and sexual abuse. Blake describes that the PSI report con-
tains “over 75 pages of information regarding his background,
including physical and sexual abuse that occurred during his
childhood.” 50 Blake does not suggest there was significant
information missing from the PSI report that should have been
brought to light. Rather, Blake’s argument is that trial counsel
failed to highlight or discuss the information found in the PSI
report concerning Blake’s history as a victim of physical and
sexual abuse, which “could have swayed the district court in
its sentence.” 51
We reiterate that we will presume the sentencing court
fulfilled its statutory obligation to review the PSI report and
50
Id. at 13.
51
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Cite as 310 Neb. 769give it due consideration. Moreover, the record here reflects
that trial counsel did in fact highlight for the court at the sen-
tencing hearing that Blake suffered from a number of mental
health issues and had a history with the Department of Health
and Human Services. Trial counsel was not deficient nor was
Blake prejudiced with respect to the alleged failure to highlight
for the court at sentencing Blake’s childhood background as a
victim of physical and sexual abuse.
(b) Ineffective Assistance in Relation to Plea
Blake assigns two errors alleging ineffective assistance of
trial counsel in relation to his plea. First, he asserts trial counsel
was ineffective by not properly investigating Blake’s claimed
innocence by interviewing certain named witnesses and get-
ting statements from them. Second, he asserts trial counsel was
ineffective by not pursuing a motion to quash the information
or a motion to suppress statements and evidence taken from
Blake during the course of the investigation. We find the first
claim sufficiently raised but not determinable on direct appeal,
and we find the second claim is not sufficiently raised.
[17] 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 perform­
ance which is known to the defendant or is apparent from the
record. 52 Otherwise, the ineffective assistance of trial counsel
issue will be procedurally barred. 53 Once raised, the appellate
court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims; an
ineffective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing. 54 This
procedure promotes judicial economy by allowing the appel-
late court that is already examining the trial record to address
the merits of the ineffective assistance claim at the first
52
State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
53
Id.54
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Cite as 310 Neb. 769opportunity and to prevent postconviction courts from having
to “‘search for needles in haystacks’” to determine if a viable
ineffective assistance claim could have been made on direct
appeal. 55
[18,19] The necessary specificity of allegations of ineffec-
tive assistance of trial counsel on direct appeal for purposes of
avoiding waiver requires, at a minimum, allegations of defi-
cient performance described with enough particularity for an
appellate court to make a determination of whether the claim
can be decided upon the trial record and also for a district court
later reviewing a potential petition for postconviction relief to
be able to recognize whether the claim was brought before the
appellate court. 56 Assignments of error on direct appeal regard-
ing ineffective assistance of trial counsel must specifically
allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity. 57
(i) Failing to Interview Potential Witnesses
The State submits Blake’s claim pertaining to the failure to
interview witnesses was sufficiently raised but that the record
is insufficient to review it. We agree.
[20] When the claim of ineffective assistance on direct
appeal involves uncalled witnesses, vague assertions that coun-
sel was deficient for failing to call “witnesses” are little more
than placeholders and do not sufficiently preserve the claim. 58
However, the appellate court does not need specific factual
allegations as to what the person or persons would have said,
which will not be found in the appellate record. 59 It is suf-
ficient that appellate counsel give on direct appeal the names
or descriptions of any uncalled witnesses forming the basis
55
See id. at 130, 853 N.W.2d at 865.
56
See State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
57
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
58
See State v. Abdullah, supra note 52.
59
See id.
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Cite as 310 Neb. 769of a claim of ineffective assistance of trial counsel. 60 Such
specificity is necessary so that the postconviction court may
later identify whether a particular claim of failing to investigate
a witness is the same one that was raised on direct appeal. 61
Blake’s assignment of error and supporting argument speci-
fied the names of the witnesses he claims that, if investigated,
would have supported his innocence. Blake sufficiently raised
his claim of ineffective assistance in relation to the uncalled
witnesses in order to preserve it, but it is apparent that we can-
not determine on direct appeal the nature of those witnesses’
accounts and whether they would have actually supported
Blake’s innocence. Therefore, we cannot resolve this allega-
tion of ineffective assistance on direct appeal, but this claim is
preserved for purposes of postconviction.
(ii) Failing to Pursue Motions to Quash Information
or Suppress Statements and Evidence
In contrast, we find that Blake has failed to raise with suffi-
cient particularity the nature of his claims that trial counsel was
ineffective by not moving to quash the information or suppress
statements and evidence. Blake assigns that trial counsel was
ineffective in failing to pursue a motion to quash the informa-
tion or a motion to suppress statements and evidence taken
from Blake during the course of investigation. In his arguments
under the heading for this assignment of error, Blake merely
sets forth standard propositions of law from Strickland 62 and
U.S. v. Cronic 63 and summarizes: “Basically, trial counsel did
nothing in [Blake’s] matter to subject the case to any adver-
sarial processes.” 64
60
See id.61
See id.62
Strickland v. Washington, supra note 43.
63
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657(1984).
64
Brief for appellant at 12.
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Cite as 310 Neb. 769[21-23] Blake’s argument is conclusory in nature. Where an
appellant’s brief contains conclusory assertions unsupported by
a coherent analytical argument, the appellant fails to satisfy the
requirement that the party asserting the alleged error must both
specifically assign and specifically argue it in the party’s initial
brief. 65 A claim insufficiently stated is no different than a claim
not stated at all. 66 When a party fails to follow the rules of the
Nebraska Supreme Court, an appellate court may proceed as
though the party had failed to file a brief or, alternatively, may
examine the proceedings for plain error. 67 Blake’s conclusory
argument does not allow us to determine whether the claim can
be decided upon the trial record, nor does it allow a district
court in a potential postconviction action to recognize if the
claim was brought before the appellate court.
[24] Blake’s argument remains insufficiently specific even if
we read it together with its heading repeating the assignment of
error. An argument that does little more than restate an assign-
ment of error does not support the assignment, and an appellate
court will not address it. 68
[25,26] Absent from both the assignment of error and the
argument is on what grounds Blake believes the information
would have been quashed. Also absent is what statements
and evidence would have been suppressed had a motion been
made, and on what grounds. Counsel is not deficient for fail-
ing to file a meritless motion, 69 and we will not search the
record to determine the possible grounds for pretrial motions a
defendant on direct appeal asserts trial counsel was deficient in
failing to make. Furthermore, without specifying which state-
ments and evidence appellate counsel believes trial counsel
65
State v. Chase, ante p. 160, 964 N.W.2d 254 (2021).
66
State v. Abdullah, supra note 52.
67
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
68
State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
69
See State v. Anderson, supra note 8. See, also, e.g., U.S. v. Islam, 932 F.3d
957 (D.C. Cir. 2019); Denson v. U.S., 804 F.3d 1339 (11th Cir. 2015).
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Cite as 310 Neb. 769should have sought to suppress, a postconviction court will be
unable to identify whether the same claim was brought before
the appellate court. Allegations on direct appeal of ineffective
assistance of trial counsel for failing to make a motion under
some broad category, such as a motion to suppress or a motion
to quash, without more detail as to the subject of and grounds
for the motion, are, like claims for failing to investigate or call
“witnesses,” mere placeholders.
Blake fails to explain with sufficient particularity the subject
of the motions he asserts trial counsel ought to have made or
why there would have been grounds for filing the motions.
Blake has thus failed to sufficiently allege deficient perform­
ance. 70 This claim of ineffective assistance of trial counsel is
not properly raised in this appeal.
VI. CONCLUSION
In the new direct appeal, we affirm Blake’s conviction and
sentence. We vacate that part of the court’s postconviction
order prematurely addressing the claims of ineffective assist­
ance unrelated to the request for relief of a new direct appeal.
With the exception of Blake’s claim that counsel was ineffec-
tive by failing to interview the named witnesses, we find in the
new direct appeal that Blake’s claims of ineffective assistance
of trial counsel are either insufficiently raised or affirmatively
refuted by the record.
Affirmed in part, and in part vacated.
70
See State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
Cassel, J., dissenting.
Because the controlling statutes, conjunctively and strictly
construed, required that Blake’s affidavit of poverty be made
within 30 days after the order, I would hold that this court
lacks jurisdiction and that the appeal should be dismissed.
I have no particular quarrel with the majority’s factual
recitation. As the majority states, Blake pled no contest to a
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Cite as 310 Neb. 769reduced charge of first degree sexual assault. In December
2019, the district court sentenced him to 9 to 14 years’ impris-
onment. Blake did not file a direct appeal.
In February 2020, Blake filed a motion for postconviction
relief, alleging, in part, that he received ineffective assistance
of counsel because he was “denied [his] request for a direct
appeal.” After soliciting and receiving the State’s position, the
district court granted an evidentiary hearing on this aspect of
Blake’s motion and appointed new counsel. The hearing took
place on August 19. On October 2, the court granted post­
conviction relief “in the form of reinstating [Blake’s] right to
file a direct appeal.”
On October 27, 2020, Blake filed a notice of appeal and
a motion to proceed in forma pauperis with the clerk of the
district court. However, his motion was not accompanied by
an affidavit. Three days later, on October 30, he submitted a
poverty affidavit which was filed by the district court clerk.
However, the jurat completed by the notary public on Blake’s
affidavit attested that Blake signed it and swore to its contents
on July 2, which was 3 full months before the court granted his
new direct appeal.
The Nebraska Court of Appeals dismissed Blake’s appeal,
citing Neb. Ct. R. App. P. §§ 2-101(B)(4) (rev. 2015) and
2-107(A)(2) (rev. 2012). Blake sought rehearing. The Court of
Appeals sustained Blake’s motion for rehearing, reinstated his
appeal, and ordered the parties to brief the “issue of jurisdic-
tion specifically related to . . . § 2-101(B)(4) which requires
a poverty affidavit in lieu of a docket fee to be executed
no more than 45 days prior to the notice of filing of the
appeal.” Before disposition of the appeal, it was moved to this
court’s docket. 1
I agree with the basic standards of review recited by the
majority. A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
1
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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Cite as 310 Neb. 769of law. 2 Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below. 3
The State argues that because Blake’s affidavit of poverty
was made 3 months before the relief of a new direct appeal was
granted, we lack jurisdiction. Blake disagrees.
The parties’ briefing, probably responding to the Court of
Appeals’ direction, primarily addressed the effect of our appel-
late rule, § 2-101(B)(4). But I focus solely on the statutory
requirements.
I begin by reciting three fundamental principles of appel-
late jurisdiction. Before reaching the legal issues presented
for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it. 4 Except
in those cases wherein original jurisdiction is specially con-
ferred by Neb. Const. art. V, § 2, this court exercises appellate
jurisdiction, and such appellate jurisdiction can be conferred
only in the manner provided by statute. 5 Most important to
my analysis is the principle that jurisdictional statutes must be
strictly construed. 6
For civil cases since 1941 7 and criminal cases since 1961, 8
the statutory process of perfecting appellate jurisdiction has
2
State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
3
State v. Riessland, ante p. 262, 965 N.W.2d 13 (2021).
4
State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).
5
Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623
N.W.2d 308 (2001).
6
See, Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020); Lombardo
v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018); State v. Parmar, 255
Neb. 356, 586 N.W.2d 279 (1998). See, also, Barney v. Platte Valley
Public Power and Irrigation District, 144 Neb. 230, 13 N.W.2d 120(1944).
7
See 1941 Neb. Laws, ch. 32, § 1, p. 141.
8
See 1961 Neb. Laws, ch. 135, § 1, p. 388.
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Cite as 310 Neb. 769imposed upon an appellant two basic tasks. An appellate court
has no power to exercise appellate jurisdiction in proceedings
to review the judgment of the district court unless the appel-
lant shall have filed a notice of appeal and deposited a docket
fee in the office of the clerk of the district court within the
time fixed and as provided in Neb. Rev. Stat. § 25-1912 (Cum.
Supp. 2020). 9
This court has repeatedly stated that the legislative history
of § 25-1912 shows “the [Nebraska] Legislature intended that
the filing of the notice of appeal and the depositing of the
docket fee in the office of the clerk of the district court are
both mandatory and jurisdictional.” 10 This court has also rec-
ognized that “‘no step other than the filing of such notice of
appeal and the depositing of such docket fee shall be deemed
jurisdictional.’” 11
Where, as here, a district court grants postconviction relief
in the form of a new direct appeal, the time for perfecting the
appeal begins with the entry of the order granting that relief. 12
That order was entered on October 2, 2020. There is no dis-
pute that the notice of appeal was timely filed. Although no
docket fee was deposited within the 30-day period that began
on October 2, a statutory alternative exists where an appellant
claims that he or she is unable to pay the fee.
In lieu of depositing the required docket fee, Neb. Rev.
Stat. § 29-2306 (Reissue 2016) allows a criminal defendant
to request to proceed in forma pauperis on appeal. 13 When a
9
See State v. Parmar, supra note 6.
10
See, id. at 360, 586 N.W.2d at 282 (internal quoatation marks omitted);
American Legion Post No. 90 v. Nebraska Liquor Control Commission,
199 Neb. 429, 259 N.W.2d 36 (1977); Barney v. Platte Valley Public
Power and Irrigation District, supra note 6.
11
Barney v. Platte Valley Public Power and Irrigation District, supra note 6,
144 Neb. at 233, 13 N.W.2d at 122.
12
See State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), abrogated
on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
13
State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021).
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Cite as 310 Neb. 769party seeks to appeal in forma pauperis, a poverty affidavit
serves as a substitute for the docket fee otherwise required
upon appeal. 14 Section 29-2306 requires that an application
to proceed in forma pauperis be “in accordance with sections
25-2301 to 25-2310.” Thus, the question becomes, what does
this collection of related statutes require?
Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible. 15 But here, because jurisdictional
statutes must be strictly construed, 16 this court must con-
sider and construe the controlling statutes both conjunctively
and strictly.
I now recite the specific content of these statutes, emphasiz-
ing their most pertinent parts.
First, § 25-1912 states, in relevant part, as follows:
(1) The proceedings to obtain a reversal, vacation, or
modification of judgments and decrees rendered or final
orders made by the district court, including judgments
and sentences upon convictions for felonies and misde-
meanors, shall be by filing in the office of the clerk of the
district court in which such judgment, decree, or final
order was rendered, within thirty days after the entry of
such judgment, decree, or final order, a notice of intention
to prosecute such appeal . . . and, except as otherwise
provided in sections 25-2301 to 25-2310 and 29-2306
. . . , by depositing with the clerk of the district court the
docket fee required by section 33-103.
(2) A notice of appeal or docket fee filed or deposited
after the announcement of a decision or final order but
14
Id.
15
In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807(2021).
16
See, Thomas v. Peterson, supra note 6; Lombardo v. Sedlacek, supra note
6; State v. Parmar, supra note 6.
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Cite as 310 Neb. 769before the entry of the judgment, decree, or final order
shall be treated as filed or deposited after the entry of the
judgment, decree, or final order and on the date of entry.
....
(4) Except as otherwise provided in . . . sections
25-2301 to 25-2310 and 29-2306, . . . an appeal shall be
deemed perfected and the appellate court shall have juris-
diction of the cause when such notice of appeal has been
filed and such docket fee deposited in the office of the
clerk of the district court. After being perfected no appeal
shall be dismissed without notice, and no step other than
the filing of such notice of appeal and the depositing of
such docket fee shall be deemed jurisdictional.
(Emphasis supplied.)
Section 29-2306 provides:
If a defendant in a criminal case files, within thirty
days after the entry of the judgment, order, or sentence,
an application to proceed in forma pauperis in accord­
ance with sections 25-2301 to 25-2310 with the clerk of
the district court, then no payment of the docket fee shall
be required of him or her unless the defendant’s applica-
tion to proceed in forma pauperis is denied. The clerk of
the district court shall forward a certified copy of such
application, including the affidavit, to the Clerk of the
Supreme Court. If an application to proceed in forma
pauperis is filed and granted, the Court of Appeals or
Supreme Court shall acquire jurisdiction of the case when
the notice of appeal is filed with the clerk of the district
court. In cases in which an application to proceed in
forma pauperis is granted, the amount of the costs shall be
endorsed on the mandate and shall be paid by the county
in which the indictment was found.
(Emphasis supplied.)
Finally, Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) states,
“Any county or state court . . . may authorize the . . . appeal
. . . of a . . . criminal case in forma pauperis. An application
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Cite as 310 Neb. 769to proceed in forma pauperis shall include an affidavit stat-
ing that the affiant is unable to pay the fees and costs . . . .”
(Emphasis supplied.)
From the first of these statutes, several important principles
emerge. First, § 25-1912(1) requires the filing of the notice of
appeal and the deposit of the docket fee after the entry of the
sentencing judgment. 17 Second, § 25-1912(2) treats a docket
fee paid before entry of judgment but after announcement of
the decision as having been deposited after the entry of judg-
ment and on the date thereof. In other words, if a judgment has
been announced but not entered, a docket fee deposited after
the announcement would not be void as premature. 18 Here, the
record makes no suggestion that the decision was announced
prior to October 2, 2020. Thus, a docket fee paid before that
date would have been premature and ineffective. 19 Finally,
under § 25-1912(4), filing of the notice of appeal and deposit
of the docket fee need not be simultaneous, so long as both
actions occur within 30 days after the entry of judgment. 20
More pertinent here, § 25-1912(1) and (4) provide excep-
tions regarding the docket fee requirement “as otherwise pro-
vided in sections 25-2301 to 25-2310 and 29-2306.” With this
understanding of the fundamental jurisdictional requirement of
a timely deposit of a docket fee within 30 days after the entry
of judgment, I turn to the effect of the provisions “otherwise
provided.” As I have already noted, the net effect of these
provisions is that in an in forma pauperis appeal, a poverty
17
See, State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019); State v.
Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018); In re Guardianship &
Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004);
Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (2002); State
v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
18
See, State v. Hartzell, supra note 17; In re Guardianship & Conservatorship
of Woltemath, supra note 17.
19
See In re Guardianship & Conservatorship of Woltemath, supra note 17.
20
See, also, State v. Parmar, supra note 6.
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Cite as 310 Neb. 769affidavit serves as a substitute for the docket fee that is other-
wise required upon appeal. 21
In order to understand the current versions of these provi-
sions, I rely upon the Court of Appeals’ recitation of signifi-
cant statutory changes made in 1999. 22 Prior to amendments
to § 29-2306 in 1999, it provided that “[i]f a defendant in a
criminal case files . . . an affidavit with the clerk of the dis-
trict court that he or she is unable by reason of poverty to pay
the costs, then no payment of the docket fee shall be required
of him or her.” 23 That pre-1999 version of § 29-2306 further
provided that “[i]f such affidavit is filed, the Court of Appeals
or Supreme Court shall acquire jurisdiction of the case when
the notice of appeal is filed with the clerk of the district
court.” 24 In 1999, however, the Legislature enacted amend-
ments to the statutes governing the filing of in forma pauperis
proceedings. 25
Specifically, the Legislature amended § 29-2306 (Cum.
Supp. 2000) to provide that a defendant in a criminal case
must file “an application to proceed in forma pauperis in
accordance with sections 25-2301 to 25-2310” to be free
of the requirement of filing a docket fee to vest the appel-
late court with jurisdiction. 26
That same year, the Legislature created § 25-2301.01, which
required that the application “shall include an affidavit stat-
ing that the affiant is unable to pay the fees and costs . . . .” 27
Section 25-2301.01 falls within the range of statutes specified
21
See State v. Melton, supra note 13.
22
See State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).
23
See § 29-2306 (Reissue 1995).
24
See id.
25
See State v. Grant, supra note 22. See, also, 1999 Neb. Laws, L.B. 43,
§ 17, and 1999 Neb. Laws, L.B. 689, § 13.
26
State v. Grant, supra note 22, 9 Neb. App. at 923, 623 N.W.2d at 341
(emphasis supplied).
27
See id. See, also, 1999 Neb. Laws, L.B. 689, § 3.
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Cite as 310 Neb. 769in § 29-2306: “sections 25-2301 to 25-2310.” Since 1999, both
§§ 29-2306 and 25-2301.01 have remained unchanged.
Just as a docket fee is jurisdictional, 28 a poverty affidavit,
which replaces a docket fee in an in forma pauperis appeal, is
mandatory and jurisdictional.
In State v. Parmar, 29 this court distinguished the filing of
a poverty affidavit from its execution. But that decision pre-
dated the 1999 legislation amending § 29-2306 and enacting
§ 25-2301.01.
Two of this court’s decisions have come after the 1999
legislation, but neither addresses the timing required for mak-
ing an affidavit to be filed with an application to proceed in
forma pauperis under §§ 25-1912, 29-2306, and 25-2301.01.
In State v. Dallmann, 30 this court held that failure to include
in the poverty affidavit statements of the nature of the action,
defense, or appeal, and the belief that the affiant is entitled to
redress, was not a jurisdictional defect in those cases in which
in forma pauperis status was granted by the trial court without
objection. In State v. Ruffin, 31 this court upheld a dismissal by
the Court of Appeals where the poverty affidavit was signed
by the defendant’s attorney and not by the defendant. Neither
decision speaks to the timing required for making a poverty
affidavit.
Blake contends that our current statutory provisions do not
prohibit reliance upon an affidavit made before entry of a sen-
tencing judgment but not filed until after entry. But I contend
that this interpretation is not consistent with a strict construc-
tion of §§ 25-1912, 29-2306, and 25-2301.01.
As I have already highlighted, the key language of these
sections must be read together. Section 25-1912 emphasizes
that one of the two jurisdictional requirements to perfect an
28
See State v. Greer, supra note 2.
29
State v. Parmar, supra note 6.
30
State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
31
State v. Ruffin, 280 Neb. 611, 789 N.W.2d 19 (2010).
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Cite as 310 Neb. 769appeal is the deposit of a docket fee after the entry of the
judgment or final order (or at least after the announcement of
the decision, where there is a delay between announcement of
the decision and entry of the judgment or final order). Section
29-2306, in turn, requires that an application to proceed in
forma pauperis in a criminal appeal must be filed within
30 days after the entry of the judgment, order, or sentence,
and must be “in accordance with [§ 25-2301.01].” Finally,
§ 25-2301.01 requires the application to proceed in forma pau-
peris to “include an affidavit stating that the affiant is unable
to pay the fees and costs.”
Blake’s interpretation misconstrues the nature of an affida-
vit. The purpose of the affidavit required to be filed with an
application to proceed in forma pauperis under § 25-2301.01
is to establish that at the time of making the application, the
affiant is unable to pay the fees and costs of the proceeding.
Averments in an affidavit must be true when the affidavit is
made or they will never be true. 32 In considering whether an
individual is entitled to in forma pauperis status, a court exam-
ines a current snapshot of that individual’s financial position. 33
It is the affiant’s financial condition at the time of the applica-
tion to proceed in forma pauperis that is of importance. 34 It is
possible that if a poverty affidavit is executed at a time differ-
ent than when it is filed, a different snapshot of an individual’s
financial condition would emerge. 35
Blake’s interpretation would permit an affidavit that was
true when made but false when filed to serve as the basis
for waiving costs and fees. If the statutes, read together, do
not include a requirement that the affidavit be made during
the 30-day period after entry of the order (or at least after
announcement of a decision), they impose no limit whatsoever
32
2A C.J.S. Affidavits § 41 (2013).
33
See Sabino v. Ozuna, 303 Neb. 318, 928 N.W.2d 778 (2019).
34
See State v. Jensen, 299 Neb. 791, 910 N.W.2d 155 (2018).
35
See Sabino v. Ozuna, supra note 33.
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Cite as 310 Neb. 769on when the affidavit must be made. I contend that by enacting
§ 25-2301.01 and imposing a 30-day window in § 29-2306, the
Legislature imposed a sensible limit.
Strictly and conjunctively construed, §§ 29-2306 and
25-2301.01 require that the affidavit to be included in an
application to proceed in forma pauperis must be made within
30 days after the entry of the judgment, order, or sentence.
Because the affidavit was made long before the required time,
it was premature and void.
Blake failed to execute his poverty affidavit within 30 days
after the court granted his new direct appeal, which, I contend,
is a jurisdictional requirement. Therefore, this court lacks
jurisdiction for the instant appeal and should dismiss it. Because
the majority holds otherwise, I respectfully dissent.
Funke, J., joins in this dissent.