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Wery v. State

IN THE SUPREME COURT STATE OF NORTH DAKOTA


May 11, 2010

AMY WERY, A/K/A AMY HOWE,
PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA,
RESPONDENT AND APPELLEE

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

Per curiam.

AFFIRMED.

[¶1] Amy Wery appeals from a district court order denying her application for post-conviction relief. Wery argues the district court improperly denied her application for post-conviction relief because her counsel was ineffective, she reached a binding plea agreement with the State and only agreed to plead guilty on the basis of the terms of the agreement, her sentence is illegal, and the revocation of her probation was untimely.

[¶2] We summarily affirm under N.D.R.App.P. 35.1(a)(2), concluding the district court's order denying Wery's application for post-conviction relief is based on findings of fact that are not clearly erroneous. We also affirm under N.D.R.App.P. 35.1(a)(7), concluding Wery's sentence is not illegal under N.D.C.C. § 12.1-32-06.1. See DeCoteau v. State, 504 N.W.2d 552, 556 (N.D. 1993) (the holding about a combined sentence of imprisonment and probation in State v. Nace, 371 N.W.2d 129 (N.D. 1985), has been superseded by N.D.C.C. § 12.1-32-06.1); State v. Stavig, 2006 ND 63, ¶¶ 15-16, 711 N.W.2d 183 (in felony cases, under N.D.C.C. § 12.1-32-06.1 the court can impose two five-year periods of probation for a maximum length of ten years of probation).

[¶3] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner

20100511

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