from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
K. Curtiss (on brief), self-represented, Bismarck, ND,
petitioner and appellant.
Marie Vaagen (on brief), Burleigh County Assistant
State's Attorney, Bismarck, ND, for respondent and
Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale
V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court
by Kapsner, Justice.
Ronning Kapsner, Justice.
[¶1] Spencer Curtiss appeals from a district
court order denying his request for relief from an order
denying his application for post-conviction relief. He also
appeals from an order denying his motion for reconsideration.
He argues (1) the court erred when it did not consider the
criminal trial transcript while ruling on his application for
postconviction relief, and (2) the court erred when it ruled
on his motion for reconsideration before he was given an
opportunity to respond to the State's answer. We affirm.
[¶2] Curtiss was charged with gross sexual
imposition. A jury trial was held on December 8-9, 2010.
Curtiss was represented at trial by attorney Kent Morrow.
District Judge David E. Reich presided. The jury found
Curtiss guilty. Curtiss appealed, arguing the evidence was
insufficient to support his conviction. We affirmed in
State v. Curtiss, 2011 ND 175, 803 N.W.2d 834.
[¶3] On September 17, 2012, Curtiss filed an
application for post-conviction relief. The State filed a
brief in opposition to Curtiss's application and
requested a hearing. A post-conviction relief hearing was
held on May 29, 2014. Curtiss appeared and was represented by
attorney Lee Grossman. Judge Reich presided. The primary
issue argued was whether Curtiss received ineffective
assistance of trial counsel because (1) he was not able to
hear the proceedings due to a hearing impairment; (2) his
trial attorney did not file a motion to suppress certain
evidence; and (3) his trial attorney failed to call witnesses
whom allegedly could have supported an alibi defense. Curtiss
testified at the post-conviction relief hearing and also
called his trial attorney, Kent Morrow, to testify. No
transcript of the criminal
trial was filed. The district court held Curtiss failed to
show he received ineffective assistance of counsel. The court
also held Curtiss failed to provide evidence to support his
assertion that he was unable to hear the criminal trial
proceedings. The court entered an order denying Curtiss's
request for post-conviction relief on December 31, 2014.
[¶4] On August 6, 2015, Curtiss filed a
request for relief from the December 31 order. He argued the
district court erred by not considering the criminal trial
transcript when it denied his application for post-conviction
relief. The State filed its response on August 13, 2015. On
August 19, 2015, the district court entered an order denying
Curtiss's request for relief. It found:
(1) Curtis[s] failed to provide a transcript for the court to
consider; (2) he failed to raise the lack of transcript issue
at his post-conviction relief hearing; and, (3) he failed to
show how reliance on the transcript would ...