Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Steven Balaban, Bismarck, ND, for petitioner and appellant.
Jonathan R. Byers, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for respondent and appellee.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
[¶1] Nicholas Baatz appeals from a district court order denying his application for postconviction relief. Because Baatz failed to meet his burden of showing indigency at the preliminary hearing and failed to meet his burden of proving prejudice resulting from his trial attorney's conduct, we affirm the district court order.
[¶2] The history of this case was laid out by this Court in
Baatz v. State, 2013 ND 172, ¶ ¶ 2-4, 837 N.W.2d 387 (hereinafter " Baatz II" ):
[Nicholas] Baatz was convicted by a jury of gross sexual imposition in 2009 and was sentenced to 20 years in prison. In 2010 Baatz filed an application for postconviction relief alleging he was denied effective assistance of counsel because no attorney was appointed for him before trial and because the attorney who finally was appointed failed to appeal his criminal conviction. A hearing was held, and Baatz testified in support of his claims. The district court granted the petition insofar as Baatz requested the right to file an untimely appeal from his criminal conviction, but did not specifically address the other issues raised because " [t]estimony by Defendant at the hearing indicated his only contention
at this point was his denial of a right to appeal issue and not ineffective assistance of counsel at trial."
Baatz appealed from the criminal judgment and filed a N.D.R.App.P. 24 supplemental brief raising the same arguments that were not specifically addressed by the district court in the postconviction order. Baatz did not appeal from the postconviction order, but the State appealed, arguing the court erred in allowing Baatz to file an untimely appeal from the criminal judgment. In [State v.]Baatz,
2011 ND 195, ¶ ¶ 1-3, 806 N.W.2d 438 [(hereinafter " Baatz I" )], this Court affirmed the conviction and the court's decision to allow the appeal " without prejudice to Baatz's right to raise denial of his constitutional right to counsel and ineffective assistance of counsel in postconviction proceedings." No petitions for rehearing were filed.
In 2012 Baatz filed a second application for postconviction relief again alleging he was denied his right to counsel before trial and effective assistance of trial counsel after counsel was appointed. Baatz also claimed he received ineffective assistance of appellate counsel in the prior appeal. Another hearing was held, and Baatz testified in support of his claims. The district court denied the application, concluding the first two grounds alleged were barred by res judicata or misuse of process and Baatz had not shown how appellate counsel was ineffective.
[¶3] Baatz appealed the district court order denying his postconviction application, challenging only the district court's findings on res judicata and misuse of process. He did not challenge the district court's substantive findings on his ineffective assistance of appellate counsel claim. On appeal, this Court determined that, under the law of the case doctrine, this Court's decision in Baatz I allowed Baatz to raise the claims of denial of the right to counsel and of ineffective assistance of trial counsel in a second postconviction proceeding. Baatz II,
2013 ND 172, ¶ 1, 837 N.W.2d 387. This Court remanded the case to the district court to address the merits of these claims.
[¶4] On remand, the district court held no additional hearings, but did address the merits of Baatz's claims of denial of the right to counsel and of ineffective assistance of trial counsel. The district court determined Baatz waived his right to counsel at the preliminary hearing, Baatz failed to show trial counsel was ineffective, and Baatz failed to show trial counsel's alleged errors deprived him of a fair trial. ...