State v. Anthony

- 757 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
State of Nebraska, appellee, v. Donald G.
Anthony, appellant.
___ N.W.3d ___
Filed January 30, 2026. 	No. S-25-057.
1. Rules of the Supreme Court: Appeal and Error. Parties who wish to
secure appellate review of their claims must abide by the rules of the
Nebraska Supreme Court. Any party who fails to properly identify and
present its claim does so at its own peril.
2. ____: ____. Depending on the particulars of each case, failure to comply
with the mandates of Neb. Ct. R. App. P. § 2-109(D) (rev. 2024) may
result in an appellate court waiving the error, proceeding on a plain error
review only, or declining to conduct any review at all.
3. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
4. Pleadings: Words and Phrases. Historically, “verified,” for the purpose
of a pleading, has meant that the signer believed the facts stated in the
pleading to be true.
5. Pleadings. When the title of a filing does not reflect its substance, it is
proper for a court to treat a pleading or motion based on its substance
rather than its title.
6. Postconviction: Pleadings: Oaths and Affirmations: Time. A separate
verification—in proper form, supported by oath or affirmation, directed
solely and exclusively to a specified motion for postconviction relief,
and filed simultaneously with that motion—satisfies the verification
requirement of Neb. Rev. Stat. § 29-3001(1) (Cum. Supp. 2024).
7. Appeal and Error. Generally, an appellate court will find plain error
only when a miscarriage of justice would otherwise occur.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:53 AM CDT

- 758 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
Donald G. Anthony, pro se.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Cassel, J.
INTRODUCTION
Donald G. Anthony moved for postconviction relief, 1 and
the district court overruled his motion without a hearing, in
part, for lack of verification. 2 He appeals but has failed to set
forth assignments of error. 3 On plain error review, we find
that the motion was sufficiently verified by a separate docu-
ment. But nonetheless, we see no plain error in the ultimate
disposition. We affirm.
BACKGROUND
A jury found Anthony guilty of first degree murder, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon by a prohibited person. The underlying facts
were recited in our opinion on direct appeal, which affirmed
Anthony’s convictions. 4
Anthony filed his motion for postconviction relief within 1
year after we issued our mandate on direct appeal. Thus, the
motion was timely. 5
1 See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016 & Cum. Supp.
2024).
2 See § 29-3001(1).
3 See Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2024).
4 See State v. Anthony, 316 Neb. 308, 4 N.W.3d 393 (2024).
5 See § 29-3001.

- 759 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
The district court overruled it, without an evidentiary hear-
ing, on two independent grounds: a lack of verification and
substantive defects. We will discuss the court’s reasoning
and provide additional details regarding the motion and accom-
panying documents in our analysis.
Anthony 	filed 	a 	timely 	appeal, 	which 	was 	docketed
with this court. 6 We overruled the State’s motion for sum-
mary affirmance. 7
ASSIGNMENTS OF ERROR
Anthony’s appellate brief does not comply with our court
rules. 8 Our rules of appellate practice require that an appel-
lant’s initial brief include a section containing a “separate,
concise statement of each error a party contends was made by
the trial court, together with the issues pertaining to the assign-
ments of error.” 9
Section 2-109(D)(1) provides that the “brief of appellant
. . . shall contain the following sections, under appropriate
headings.” The sections specified are the title page, a table of
contents, a statement of the basis of jurisdiction, a statement
of the case, a statement of each error a party contends was
made by the trial court, propositions of law, a statement of
facts, a summary of the argument, and the argument. 10
Anthony’s 	appellate 	brief 	contains 	no 	separate 	section
for assignments of error and no specific assignment. It sets
forth five sections entitled: “Table of Contents,” “Table of
Authorities,” “Issue,” “Facts,” and “Propositions of Law.” His
argument is scattered throughout the issue, facts, and proposi-
tions of law sections.
6 See Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2024).
7 See Neb. Ct. R. App. P. § 2-107(B)(2) (rev. 2022).
8 See § 2-109(D)(1).
9 Id.
10 See id.

- 760 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
[1,2] Parties who wish to secure appellate review of their
claims must abide by the rules of the Nebraska Supreme
Court. Any party who fails to properly identify and present
its claim does so at its own peril. 11 Depending on the par-
ticulars of each case, failure to comply with the mandates of
§ 2-109(D) may result in an appellate court waiving the error,
proceeding on a plain error review only, or declining to con-
duct any review at all. 12
Here, we elect to review for plain error.
STANDARD OF REVIEW
[3] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process. 13
ANALYSIS
Although 	the 	district 	court 	employed 	two 	independent
grounds for overruling Anthony’s motion for postconviction
relief, we proceed with a plain error review focusing primarily
on one ground: that the motion lacked verification. But before
addressing the verification issue, we provide additional back-
ground gleaned from the record.
Record
According to the appellate transcript, Anthony submitted
three filings on the same date. At oral argument, the State did
not dispute that the three filings were submitted together. We
recite them in the order in which they appear in the transcript.
Within the three filings are two key documents.
11 County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612
(2023).
12 Id.
13 State v. Price, ante p. 1, 26 N.W.3d 70 (2025).

- 761 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
One key document is the first filing: a 3-page “Motion for
Verified Postconviction Relief and Evidentiary Hearing.” We
recite the motion’s substantive allegation later in this opinion.
Only for completeness, we note the next filing—a memo-
randum brief and an attached “Affirmation” directed only to
the content of the brief.
The other key document is an “Affirmation” attached to the
third filing. This “Affirmation” referred explicitly and exclu-
sively to Anthony’s motion for postconviction relief, although
the transcript shows it as the second page of a motion for
appointment of counsel. Without referring to appointment of
counsel, the “Affirmation” stated:
I, 	. 	. 	. Anthony, 	Defendant 	pro 	se., 	on 	Verified
Motion for Postconviction Relief N.R.S. § 29-3001 et
seq.,(Reissue 2016), do swear or affirm under penalty
of perjury that three pages of Verified Motion for Post-
conviction Relief was mailed to the Hall County Attorneys
Office . . . and that the facts are true therein, and accurate
as I verily believe.
This document was subscribed by Anthony and sworn before a
notary public.
Without an evidentiary hearing, the district court overruled
Anthony’s motion for postconviction relief on two grounds.
First, relying on State v. Burries, 14 it concluded that the motion
lacked proper verification. It reasoned that the “Affirmation”
attached to the second filing applied only to the brief, and not
to the postconviction motion. But the court did not address
the legal effect of the “Affirmation” attached to the third fil-
ing. Alternatively, the court concluded that Anthony’s sole
claim failed on the merits.
We agree that the “Affirmation” attached to the second fil-
ing did not apply to the motion for postconviction relief. Its
content referred only to the memorandum brief to which it
14 State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).

- 762 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
was attached. But we address the “Affirmation” attached to the
third filing in the next section.
Verification Requirement
[4] Section 29-3001(1) provides that “[a] prisoner in cus-
tody under sentence and claiming a right to be released . . .
may file a verified motion . . . stating the grounds relied upon
and asking the court to vacate or set aside the sentence.” As we
observed in Burries, § 29-3001 does not define “verified,” but
the concept is discussed elsewhere in Nebraska law:
Until 1969, all pleadings filed in Nebraska were
required to be verified. Historically, “verified,” for the
purpose of a pleading, has meant that the signer “believed
the facts stated in the pleading to be true.” Verification
stands in contrast to “acknowledgment,” which is “the act
by which a party who has executed an instrument goes
before a competent officer and declares or acknowledges
the same as his or her genuine and voluntary act and
deed.” In other words, to “verify” a pleading is to say
that the signer believes the facts contained therein are
truthful and to “acknowledge” means that the signer of
the pleading appears before a notary or other officer,
who then confirms that the signer is who the signer
purports to be. 15
The district court relied upon Burries in concluding that
Anthony’s motion lacked verification. There, a prisoner filed
a pro se second amended motion for postconviction relief that
was not verified, though earlier pleadings by him were veri-
fied. We agreed with the State that verification of a motion
filed under § 29-3001 is “undisputedly required” 16 and that
the failure to file a verified petition was a defect that sup-
ported the district court’s dismissal. We disapproved of a
15 Id. at 692, 969 N.W.2d at 99.
16 Id. at 693, 969 N.W.2d at 99.

- 763 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
prior decision 17 to the extent that it might have suggested that
an earlier verified motion is sufficient to comply with the
statutory requirement of verification.
But the circumstances here are materially different. Anthony
did not attempt to rely on an earlier pleading to meet the
verification 	requirement. The 	first 	filing 	was 	his 	original
motion, and he attempted to verify it by simultaneously fil-
ing an “Affirmation” referring exclusively to his postconvic-
tion motion. To the extent that the district court read Burries
to preclude consideration of a simultaneously filed document
verifying a motion for postconviction relief, we disapprove of
such reading.
Our analysis centers on the content of the “Affirmation”
attached to the third filing. The district court’s ruling did not
mention that document.
[5,6] The “Affirmation” attached to the third filing satis-
fied the verification requirement for Anthony’s motion for
postconviction relief. We have previously said that when the
title of a filing does not reflect its substance, it is proper for
a court to treat a pleading or motion based on its substance
rather than its title. 18 This “Affirmation” referred to the three
pages of Anthony’s motion for postconviction relief and said
that he believes the facts contained therein are truthful. It was
also signed by Anthony and duly sworn. It does not matter
that it was not attached to the postconviction motion. We now
hold that a separate verification—in proper form, supported
by oath or affirmation, directed solely and exclusively to a
specified motion for postconviction relief, and filed simulta-
neously with that motion—satisfies the verification require-
ment of § 29-3001(1).
Here, the verification was sufficient. But an examination
for plain error requires that we examine whether the court’s
17 See State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015), disapproved,
State v. Burries, supra note 14.
18 Hawk v. Hawk, 319 Neb. 120, 21 N.W.3d 303 (2025).

- 764 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
verification ruling prejudicially affected Anthony’s substantial
right and, if uncorrected, would result in damage to the integ-
rity, reputation, and fairness of the judicial process. In the next
section, we determine that it did not.
No Plain Error
The 	district 	court’s 	alternative 	ground 	for 	overruling
Anthony’s motion for postconviction relief was that his sole
claim failed on the merits. The motion alleged a violation
of Anthony’s federal and state constitutional rights due to
“Ineffective Assistance of Counsel, when trial counsel failed
to provide all ‘EXCULPATORY EVIDENCE AND WITNESS’
for [Anthony’s] defense, during Pretrial, Trial and Sentence;
Thus, BRADY violation.” (Emphasis in original.)
To support that ground, the motion alleged:
Anthony requested his “Trial Counsel” to present the
evidence of the “DNA/BLOOD TEST” that was within
States Discovery, and was denied the right to have said
evidence presented for the purpose to prove his guilt or
innocence; and Anthony requested that the “witness”
of the Nebraska State Patrol . . . would have provided
evidence of the “Crime Lab Reports” sufficient to prove
his guilt or innocence, which both evidence would have
shown the “material elements” presented by the State
Prosecutor’s was without merit, and further show that
Anthony could not have . . . committed the Murder.
Ordinarily, 	in 	appeals 	from 	postconviction 	proceedings,
an appellate court reviews de novo a determination that the
defendant failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no
relief. 19 But, here, our review is limited to plain error.
An evidentiary hearing is not required when a motion for
postconviction relief alleges only conclusions of fact or law
19 State v. Trail, 319 Neb. 84, 21 N.W.3d 61 (2025).

- 765 -
Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. ANTHONY
Cite as 320 Neb. 757
without supporting facts. 20 Among other reasons, the district
court determined that Anthony’s motion pled mere conclusions
of fact or law.
[7] We see no plain error in the court’s decision on the
merits. Consequently, the court’s verification ruling was not
plainly erroneous. Generally, an appellate court will find plain
error only when a miscarriage of justice would otherwise
occur. 21 We see none here.
CONCLUSION
Anthony’s separate verification, coupled with his motion for
postconviction relief, satisfied the requirement of § 29-3001(1)
for a verified motion. But seeing no plain error, we affirm the
district court’s order denying relief.
Affirmed.
20 State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025).
21 State v. Molina, ante p. 544, 28 N.W.3d 837 (2025).