State v. Blake
| Decision Date | 28 January 2022 |
| Docket Number | No. S-20-779.,S-20-779. |
| Citation | 969 N.W.2d 399,310 Neb. 769 |
| Parties | STATE of Nebraska, appellee, v. Brandon L. BLAKE, appellant. |
| Court | Nebraska Supreme Court |
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.
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 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:
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.
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 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):
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.
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 § 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.
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, 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 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.
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,...
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