Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.
Thomas J. Glass, for petitioner and appellant.
Lonnie Olson, State's Attorney, for respondent and appellee.
[¶ 1] Matthew Swearingen appeals from a district court order denying his application for post-conviction relief. Concluding the district court provided inadequate findings of fact and should have granted Swearingen's request for a transcript of the post-conviction evidentiary hearing, we reverse and remand.
[¶ 2] Swearingen was charged with and found guilty of gross sexual imposition. He appealed the judgment, arguing there was insufficient evidence to support the trial court's decision, which this Court summarily affirmed in State v. Swearingen, 2012 ND 6, 809 N.W.2d 833. Swearingen applied for post-conviction relief, claiming his court-appointed counsel was ineffective because he requested a bench trial instead of a jury trial and failed to inform Swearingen of his reasons for doing so. An evidentiary hearing was held, and the district court denied Swearingen's application.
[¶ 3] The court concluded:
Based on the Petitioners testimony he essentially is making the same argument he made before the Supreme Court, State of North Dakota v. Swearingen, 2012 ND 6. Petitioners counsel argues that requesting a bench trial instead of a jury trial under these circumstances is ineffective assistance of counsel. The argument is not persuasive.
[¶ 4] The district court subsequently denied Swearingen's request for a transcript of the evidentiary hearing for his appeal, concluding:
In this particular case the issues raised in the post conviction proceeding on January 4, 2013, were addressed in the related criminal action where transcripts have been prepared, State of North Dakota v. Matthew Swearingen, Ramsey County Case No. 36-10-K-00730 and Supreme Court Case No. 20110227.
Swearingen moved to reconsider his request for a transcript, but the district court, lacking jurisdiction over a matter on appeal to this Court, did not rule on the motion.
[¶ 5] Swearingen argues the district court erred in denying his post-conviction relief claim of ineffective assistance of counsel. He argues his counsel did not communicate sufficiently with him and he was not able to make a fully-informed decision about waiving his right to a jury trial. In his supplemental brief, Swearingen argues the district court erred in denying his request for a post-conviction evidentiary hearing transcript.
[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Swearingen's appeal was timely under N.D.R.App.P. 4(d). We have jurisdiction under N.D. Const. art. ...