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Olsen v. State

Supreme Court of North Dakota

August 28, 2014

Andrew Olsen, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable William W. McLees, Judge.

David D. Dusek, Grand Forks, N.D., for petitioner and appellant.

Kelly A. Dillon, Assistant State's Attorney, Minot, N.D., for respondent and appellee.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 373

VandeWalle, Chief Justice.

[¶1] Andrew Olsen appealed from an order denying his application for post-conviction relief. Because we conclude as a matter of law the failure of Olsen's attorney to raise an issue of first impression on an unsettled question of law in North Dakota did not constitute ineffective assistance of counsel, we affirm the district court's order.

I

[¶2] On March 1, 2007, Olsen pled guilty to possession of visual representations that include sexual content in violation of N.D.C.C. § 12.1-27.2-04.1, which at the time was a class A misdemeanor for a first offense. See 1989 N.D. Sess. Laws ch. 169, § 7. The district court entered an order deferring imposition of sentence and placed Olsen on supervised probation for a period of two years. The court did not advise Olsen in the order or otherwise that he was required to register as a sexual offender. See N.D.C.C. § 12.1-32-15. Olsen completed the probation period without any violations, and on March 6, 2009, Olsen's guilty plea was withdrawn, the charge was dismissed, and the file was sealed as required by N.D.R.Crim.P. 32.1.

[¶3] On July 6, 2009, Olsen was charged with class C felony failure to register as a sexual offender in violation of N.D.C.C. § 12.1-32-15. Olsen posted a $1,000 bond and one of the conditions of release in the bail order was that he " must register with Minot Police Dept within 24 hours of posting bond." This charge was dismissed on the State's motion because Olsen had not been informed of the registration requirement when the order deferring imposition of sentence was entered on March 1, 2007. Olsen registered and continued to register as a sexual offender until 2011.

[¶4] On June 1, 2011, Olsen was again charged with class C felony failure to register as a sexual offender in violation of N.D.C.C. § 12.1-32-15. Olsen was represented by an attorney and, following a bench trial, he was found guilty and was sentenced to serve one year in jail with all but 90 days suspended for a period of one year of supervised probation. Olsen did not appeal from the criminal judgment.

[¶5] In March 2013, Olsen filed an application for post-conviction relief, claiming his attorney during the 2011 proceedings leading to his conviction was ineffective for failing to argue that he could not be found guilty for failure to register because his 2007 guilty plea had been withdrawn and the case dismissed under the procedure for deferred imposition of sentences contained in N.D.R.Crim. P. 32.1 . The State moved for dismissal, arguing Olsen's attorney was not ineffective because 1995 amendments to N.D.C.C. § 12.1-32-15 made it clear that the registration requirement applied to offenders who received deferred imposition of sentences, and therefore, if Olsen's ...


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