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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE v. BLAKE

Cite as 310 Neb. 769

State 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 discretion 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 determining 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 statutory, and a litigant who complies with the requirements of the applicable 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/04/2022 08:07 AM CST
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statute is entitled to a review of the case to the extent of the scope provided 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 compliance 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 application 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 consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense, and (8) the 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 circumstances 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 appellate court will presume that the sentencing court fulfilled its statutory 
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obligation 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 defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise, the ineffective assistance of trial counsel issue will 

be procedurally barred.

18. Postconviction: Effectiveness of Counsel: Appeal and Error. The necessary specificity of allegations of ineffective assistance of trial counsel 

on direct appeal for purposes of avoiding waiver requires, at a minimum, allegations of deficient 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.

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 witnesses, 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 initial 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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25. 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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affidavit 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 assistance, that counsel was ineffective in failing to present mitigating 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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a 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 postconviction 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 associated 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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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[.]

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 execution 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 victim 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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§ 28-319(1)(c) and Neb. Rev. Stat. § 28-201(4)(b) (Cum. 

Supp. 2014), with a sentencing range of 0 to 20 years’ imprisonment. 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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counsel 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, posttraumatic stress disorder, schizophreniform disorder, and oppositional 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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included stealing underwear, “grooming,” writing inappropriate 

letters, attempting to be alone with younger peers, and attempting 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’ imprisonment and any other sentence previously imposed. The court 

explained that imprisonment was necessary for the protection 
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of 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 seriousness 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 examiner 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 encounters, 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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named witnesses and getting statements from them, (3) pursue 

a motion to quash the information or motion to suppress statements 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 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. 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 untenable, 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 ineffective 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 generally 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 Id.
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challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. 8

V. ANALYSIS

1. Jurisdiction

We first address the State’s contention that we lack jurisdiction 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 application 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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Neb. 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 modification of judgments and decrees rendered or final orders 

made by the district court, including judgments and sentences 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 appellants 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 depositing 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 jurisdiction 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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Section 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 provides 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 application 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 proceed 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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fees, or security or is asserting legal positions which are frivolous 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 positions 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 applicant 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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Subsection (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 obligations 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 accompanying 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 relevant 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 governing 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 manner 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 Id.
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our 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 evidentiary 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 proceed 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 objection 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 filing 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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security 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 merits 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 language 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.
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in 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 posting 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 condition 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 pauperis, 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 jurisdiction 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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court, and pursuant to § 25-2301.02, “An application to proceed 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 consideration 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 affidavit pertaining to the nature of the action and belief of entitlement 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 staleness 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 jurisdictional prerequisite of a filing fee is satisfied when the lower 
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court 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 security 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 heading, “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 important 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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misconceptions 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 jurisdiction over this new direct appeal because Blake’s poverty affidavit 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 considering well-established factors and any applicable legal principles. 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 conscience, 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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(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. 35 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 circumstances surrounding 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 timebomb” 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 impermissible 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 victims and committing assaults since the time when this crime 

was committed. Even in light of Blake’s mental health struggles and unfortunate circumstances growing up, the district 

court’s sentence of 9 to 14 years’ imprisonment, to run consecutively 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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3. 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 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. 39

If it does not, we vacate that portion of the order that prematurely 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 postconviction motion granting this new direct appeal. He in fact 

must raise those claims in this direct appeal or be procedurally 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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4. 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 contention 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 defendant’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 evaluation 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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elaboration, Blake asserts that trial counsel was ineffective in 

failing to bring to the attention of the district court the “contents 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 investigation report.” 48

We note at the outset that Blake’s argument is somewhat 

confusing and underdeveloped. As Blake concedes, the discussion 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 hearing Blake’s and his defense counsel’s assurances that Blake 

was competent to enter his plea. The “contents of his evaluation” 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 normal range. Both Blake and his counsel assured the court there 

was nothing in the PSI report that needed to be added, corrected, or taken out.

Blake does not suggest that we cannot determine this ineffective 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 sentencing 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 ineffective 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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mental 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 ordering 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 sentencing 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 differently. The trial record refutes that Blake was prejudiced by 

trial counsel’s failure to specifically bring to the court’s attention 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 contains “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 Id.
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give it due consideration. Moreover, the record here reflects 

that trial counsel did in fact highlight for the court at the sentencing 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 getting 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 performance 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 appellate 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 Id.
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opportunity 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 ineffective assistance of trial counsel on direct appeal for purposes of 

avoiding waiver requires, at a minimum, allegations of deficient 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 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. 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 counsel 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 sufficient 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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of 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 specified 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 cannot 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 allegation 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 sufficient 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 information 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 adversarial 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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[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 assignment 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 failing 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 statements 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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should 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 performance. 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 assistance unrelated to the request for relief of a new direct appeal. 

With the exception of Blake’s claim that counsel was ineffective 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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reduced charge of first degree sexual assault. In December 

2019, the district court sentenced him to 9 to 14 years’ imprisonment. 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 postconviction 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 jurisdiction 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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of law. 2 Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent 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 appellate rule, § 2-101(B)(4). But I focus solely on the statutory 

requirements.

I begin by reciting three fundamental principles of appellate 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 conferred 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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imposed 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 appellant 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 recognized 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 dispute 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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party 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 consider and construe the controlling statutes both conjunctively 

and strictly.

I now recite the specific content of these statutes, emphasizing 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 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 . . . 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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before 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 jurisdiction 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 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 application 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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to proceed in forma pauperis shall include an affidavit stating 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 judgment 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 exceptions regarding the docket fee requirement “as otherwise provided 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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affidavit serves as a substitute for the docket fee that is otherwise required upon appeal. 21

In order to understand the current versions of these provisions, I rely upon the Court of Appeals’ recitation of significant 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 district 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 amendments 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 appellate court with jurisdiction. 26

That same year, the Legislature created § 25-2301.01, which 

required that the application “shall include an affidavit stating 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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in § 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 predated 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 making 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 sentencing judgment but not filed until after entry. But I contend 

that this interpretation is not consistent with a strict construction 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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appeal 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 pauperis to “include an affidavit stating that the affiant is unable 

to pay the fees and costs.”

Blake’s interpretation misconstrues the nature of an affidavit. 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 examines a current snapshot of that individual’s financial position. 33

It is the affiant’s financial condition at the time of the application to proceed in forma pauperis that is of importance. 34 It is 

possible that if a poverty affidavit is executed at a time different 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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on 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.