Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.
James A. Teigland (argued) and Nicholas D. Thornton (on brief), Fargo, ND, for petitioner and appellant.
Mark J. McCarthy, Assistant State's Attorney, Grand Forks, ND, for respondent and appellee; submitted on brief.
Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Neumann, Justice. Kapsner, Justice, dissenting.
Daniel J. Crothers, Justice.
[¶1] Gerald Ray Middleton appeals from a district court order denying his application for postconviction relief. We affirm because trial counsel's procedurally deficient motion for a new trial was not proven to prejudice Middleton.
[¶2] Middleton was found guilty by a jury of continuous sexual abuse of a child, a class AA felony, and corruption of a minor, a class C felony. After the trial, attorney Steven M. Light, now deceased, was substituted as Middleton's new counsel. Middleton then moved for a new trial. The brief in support of Middleton's motion stated, in its entirety:
On April 5, 2010, Gerald Middleton (hereinafter " Middleton" ) was charged via Information with Continuous Sexual
Abuse of a Child, a Class AA Felony, and Corruption of a Minor, a Class C Felony. A Jury Trial commenced October 24, 2011. On October 29, 2011, the jury returned a verdict of Guilty on both counts.
Under Rule 33 of the North Dakota Rules of Criminal Procedure, the court may grant a new trial to the defendant if required in the interest of justice.
State v. Kraft, 413 N.W.2d 303, 308 (N.D. 1987).
Respectfully submitted this 8th day of November, 2011.
The district court denied Middleton's motion, ruling Middleton failed to include any legal arguments or facts to support his motion. Middleton was sentenced, and a judgment was subsequently entered. Light died three months after submitting the brief in support of the new trial motion.
[¶3] Represented by new counsel, Middleton filed a direct appeal, arguing the district court erred in denying his pretrial motion to release the victim's medical records and the State engaged in prosecutorial misconduct during closing argument. See
State v. Middleton, 2012 ND 181, ¶ 4, 820 N.W.2d 738. This Court determined Middleton had not preserved his issues for appeal because they were not included in his motion for a new trial. Id. at ¶ 6. This Court also determined it would not review the issues for obvious error because review for obvious error under N.D.R.Crim.P. 52(b) is allowed only " to prevent an unjust conviction," or in " exceptional situations where the defendant has suffered serious injustice," and neither of those situations applied. Middleton, at ¶ 7 (citations omitted). We affirmed the judgment of conviction. Id. at ¶ 8.
[¶4] Middleton filed an application for postconviction relief, arguing his trial counsel and appellate counsel were ineffective on four grounds. With respect to Light, Middleton argued, " Post-trial counsel filed a substantively deficient motion for new trial thereby effectively denying Mr. Middleton direct appellate review of his case by the North Dakota Supreme Court[.]" After an evidentiary hearing, the district court denied Middleton's application for postconviction relief. Regarding Middleton's postconviction claims about Light, the district court held:
" D. Middleton failed to show how the results of his appeal would have been different if appellate counsel's Motion for a New Trial was laden with more legal arguments and facts to support his position.
" The North Dakota Supreme Court applied N.D.R.Crim.P. 52(b) to Middleton's appeal.
State v. Middleton, 2012 ND 181, ¶ 7, 820 N.W.2d 738, 739-40. The Supreme Court found that Mr. Middleton had not 'suffered serious injustice,' and thus he was not entitled to a review of the issues for obvious error. Id. Consequently, the Court found appellate counsel's performance did not deny Mr. Middleton the opportunity for direct appellate review by the North Dakota Supreme Court.
" Here, Middleton was afforded an opportunity for an evidentiary hearing. The only evidence produced by Middleton at the evidentiary hearing was evidence of dissatisfaction with his trial attorney and his appellate attorney. There was no evidence presented to establish how a longer preparation time would have changed the outcome of the trial or that trial counsel failed to present relevant evidence that would have changed the outcome of the trial."
Middleton appeals from the district court order denying his application for postconviction relief, challenging only the district court's ruling ...