February 13, 2014
Matthew Swearingen, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge.
Thomas John Glass, Bismarck, ND, for petitioner and appellant; submitted on brief.
Lonnie Olson, State's Attorney, Devils Lake, ND, for respondent and appellee; submitted on brief.
Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner.
[¶1] Matthew Swearingen appealed from a district court order denying his application for post-conviction relief. Swearingen argued the district court erred in denying his post-conviction relief application because he received ineffective assistance of counsel and his counsel's alleged deficient performance prejudiced his defense. This Court reversed and remanded to the district court " to provide more adequate findings on the issues raised as well as to provide a transcript of the post-conviction evidentiary hearing so that we may adequately review ineffective assistance of counsel and the waiver of a jury trial." Swearingen v. State, 2013 ND 125, ¶ 18, 833 N.W.2d 532. We summarily affirm under N.D.R.App.P. 35.1(a)(2), concluding the district court's findings of fact regarding waiver of a jury trial were not clearly erroneous, and under N.D.R.App.P. 35.1(a)(7). See Murchison v. State, 2011 ND 126, ¶ 8, 799 N.W.2d 360 (" To establish a claim of ineffective assistance of counsel a defendant has a heavy burden of proving . . . the defendant was prejudiced by counsel's deficient performance." ); Smestad v. State, 2011 ND 163, ¶ 11, 801 N.W.2d 691 (" If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ).
[¶2] Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner