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Curtiss v. State

Supreme Court of North Dakota

March 15, 2016

Spencer Kerry Curtiss, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

         Spencer K. Curtiss (on brief), self-represented, Bismarck, ND, petitioner and appellant.

         Tessa Marie Vaagen (on brief), Burleigh County Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

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

          OPINION

Page 59

          Carol 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.

         I

          [¶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

Page 60

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 ...

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