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Roe v. State

Supreme Court of North Dakota

March 30, 2017

Barry Roe, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

         AFFIRMED.

          Charles A. Stock for petitioner and appellant.

          Brian D. Grosinger for respondent and appellee.

          OPINION

          Tufte, Justice.

         [¶ 1] Barry Roe appeals a district court order denying his application for post-conviction relief in which he alleged he received ineffective assistance of counsel from two attorneys who represented him at different stages of his criminal case. We affirm, concluding Roe was not prejudiced by his counsels' representation.

         I

         [¶ 2] The State charged Roe with two counts of gross sexual imposition. The State's evidence included forensic interview statements by three children, two of whom alleged sexual abuse by Roe. During the preliminary hearing, a detective testified to what the children said at the interviews. The court found probable cause supported both counts, and the case was set for trial. Prior to trial, substitute counsel was appointed to represent Roe. During the trial, one of the children partially recanted her sexual abuse allegation. She altered her story to say Roe had touched her inner thigh rather than her vaginal area.

         [¶ 3] A jury found Roe guilty of both charges. Roe later filed an application for post-conviction relief, arguing his preliminary hearing attorney and his trial attorney ineffectively represented him. The district court denied his application, finding neither attorney's representation prejudiced Roe.

         II

         [¶ 4] A person may apply for post-conviction relief on the ground that the conviction was obtained in violation of the United States Constitution. N.D.C.C. § 29-32.1-01(1)(a). The Sixth Amendment guarantees that a person charged with a crime is "entitled to effective assistance of counsel at critical stages of criminal proceedings." Peterka v. State, 2015 ND 156, ¶ 25, 864 N.W.2d 745 (citing Adams v. Illinois, 405 U.S. 278, 279 (1972)). An applicant for post-conviction relief who claims ineffective assistance of counsel must demonstrate: (1) his counsel's representation "fell below an objective standard of reasonableness"; and (2) he was prejudiced by his counsel's representation. Id. A district court should dispose of an ineffective assistance of counsel claim without reaching the merits of the first prong if the applicant fails to establish prejudice. Heckelsmiller v. State, 2004 ND 191, ¶ 4, 687 N.W.2d 454 (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)).

         [¶ 5] The standard of review for a claim of ineffective assistance of counsel in a post-conviction proceeding is well-established:

Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on appeal unless clearly erroneous. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made." Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454.

Clark v. State, 2008 ND 234, ΒΆ 11, 758 N.W.2d 900. The question before us is whether the representation of either Roe's preliminary hearing attorney or ...


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