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Paul E. Smestad v. State of North Dakota

August 18, 2011

PAUL E. SMESTAD,
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 Bruce A. Romanick, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme CourtSmestad v. State,

2011 ND 163

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Paul Smestad appeals from an order denying his application for post-conviction relief. We conclude Smestad's claim that his signature on a document extending his probation was not his signature is barred by res judicata. We also conclude that because Smestad's claims are barred by res judicata, he cannot establish his post-conviction trial counsel was ineffective. We affirm.

I

[¶2] In December 2003, Smestad pled guilty in Burleigh County to one count of theft by deception and one count of forgery. He was sentenced to three years in jail with all but eighteen months suspended and was placed on probation for three years following completion of his incarceration. In May 2008, a petition for extension of probation was filed because Smestad had not fully paid restitution ordered under his initial sentence and an order was issued to extend Smestad's probation for five years.

[¶3] In September 2009, a petition was filed to revoke Smestad's probation. After a hearing, the district court revoked his probation and sentenced him to three years in jail. In State v. Smestad, 2010 ND 53, 789 N.W.2d 731, we summarily affirmed the district court's decision revoking Smestad's probation.

[¶4] Smestad applied for post-conviction relief under N.D.C.C. ch. 29-32.1. He claimed he was entitled to post-conviction relief in part because he had not signed any documents extending his probation. The State opposed Smestad's application, claiming some issues raised by him were res judicata and requesting a hearing on the issue about his signature. After an evidentiary hearing, the district court denied Smestad's application, stating Smestad's prior appeal addressed his argument about the expiration of his probation but did not raise claims about his alleged forged signature on the probation extension. The court ruled this issue or a similar issue was resolved in his prior appeal and concluded Smestad's claim involving the authenticity of his signature on documents extending his probation was barred by res judicata and misuse of process.

II

[ΒΆ5] Smestad argues the district court erred in deciding his claim involving the authenticity of his signature on documents extending his probation was barred by res judicata and misuse of process. He claims he could not have raised this issue previously because he was unaware of the documents extending his probation until after his prior appeal was filed. Smestad also ...


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