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Alman andrew Wong, Petitioner and Appellant v. State of North Dakota

October 18, 2011

ALMAN ANDREW WONG, PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA, RESPONDENT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

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

N.D. Supreme CourtWong v. State, 2011 ND 201

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

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AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Alman Andrew Wong appealed from a district court order denying his application for post-conviction relief. We affirm, concluding that Wong failed to establish a basis for post-conviction relief.

I.

[¶2] In August 2009, Wong pled guilty to gross sexual imposition and aggravated assault. After he entered his plea, but before sentencing, Wong's attorney moved to have Wong evaluated to determine his fitness to proceed and his criminal responsibility. The motions were granted. In October 2009, a new attorney was assigned to Wong's case. On November 19, 2009, a doctor at the North Dakota State Hospital attempted to evaluate Wong, but he refused to undergo the assessment. On December 15, 2009, Wong was sentenced to life imprisonment without the benefit or possibility of parole on the gross sexual imposition charge and to five years imprisonment on the aggravated assault charge. Wong did not appeal his conviction or sentence.

[¶3] On April 12, 2010, Wong filed a petition for post-conviction relief, claiming his conviction was obtained by an unlawfully induced guilty plea because he was incompetent, failure by the prosecution to disclose evidence, and ineffective assistance of counsel. The district court summarily dismissed his petition on May 24, 2010. Wong appealed, and this Court reversed and remanded for further proceedings. Wong v. State, 2010 ND 219, 790 N.W.2d 757. On March 16, 2011, the district court held a hearing on Wong's petition. Following the hearing, the district court denied Wong's petition, finding there was no evidence to support his claims.

II.

[¶4] "Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Delvo v. State, 2010 ND 78, ¶ 10, 782 N.W.2d 72 (quoting Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900). A district court's findings of fact in a post-conviction relief proceeding will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Tweed v. State, 2010 ND 38, ¶ 15, 779 N.W.2d 667. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made." Clark, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (quoting Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454). "Questions of law are fully reviewable on appeal of a post-conviction proceeding." Syvertson v. State, 2005 ND 128, ¶ 4, 699 N.W.2d 855 (quoting Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390).

III.

[ΒΆ5] On appeal, Wong argues his guilty plea cannot stand because he lacked capacity to plead at the time he entered the plea. Wong also contends the district court erred in sentencing him because he was incapacitated from a mental disease. He also argues he received ineffective assistance of counsel because his attorney did not demand the court-ordered evaluation ...


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