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Rourke v. State

Supreme Court of North Dakota

June 5, 2018

J. Erin Rourke, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

          Samuel A. Gereszek, East Grand Forks, ND, for petitioner and appellant.

          Tracy E. Hines (argued), Assistant State's Attorney, and Ryan J. Younggren (on brief), Assistant State's Attorney, Fargo, ND, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] J. Erin Rourke appeals from a district court's order denying his application for post-conviction relief. Rourke argues the court erred by denying his application for post-conviction relief because he received ineffective assistance of counsel. We affirm.

         I

         [¶ 2] The State charged J. Erin Rourke with gross sexual imposition and corruption or solicitation of minors. Following a trial held in May 2016, the jury returned a verdict of guilty as to the gross sexual imposition charge and a verdict of not guilty as to the corruption or solicitation of minors charge. Rourke appealed his conviction, arguing insufficient evidence to sustain the jury's verdict. This Court affirmed in State v. Rourke, because Rourke failed to preserve his sufficiency of the evidence argument for appeal by failing to move for a judgment of acquittal at trial under N.D.R.Crim.P. 29, and Rourke made no argument that an obvious error occurred, which is an exception to the requirement to move for acquittal. 2017 ND 102, ¶ 7, 893 N.W.2d 176.

         [¶ 3] Rourke applied for post-conviction relief in May 2017, arguing his trial counsel was ineffective. In his application, Rourke argued his trial counsel failed to move for a judgment of acquittal under N.D.R.Crim.P. 29. Rourke also alleged several other reasons his trial counsel was ineffective, but those issues were not raised on appeal. A post-conviction relief hearing was held on three separate dates; September 22, October 2, and October 9, 2017.

         [¶ 4] After an evidentiary hearing, where both Rourke and his two trial attorneys testified, the district court denied Rourke's post-conviction relief application.

         II

         [¶ 5] On appeal, Rourke argues the district court erred by denying his application for post-conviction relief, because he received ineffective assistance of counsel. Rourke argues that by failing to move for a judgment of acquittal under N.D.R.Crim.P. 29, which barred him from challenging the sufficiency of the evidence on appeal, his trial counsel was ineffective as a matter of law. "The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this Court." Saari v. State, 2017 ND 94, ¶ 12, 893 N.W.2d 764 (quoting Pfeffer v. State, 2016 ND 248, ¶ 6, 888 N.W.2d 743). This Court has held "the purpose of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, is to furnish a method to develop a complete record to challenge a criminal conviction." Chisholm v. State, 2014 ND 125, ¶ 15, 848 N.W.2d 703 (internal quotation omitted). "An applicant has the burden of establishing grounds for post-conviction relief." Id. at ¶ 8.

         The framework for evaluating ineffective assistance of counsel claims under the Sixth Amendment of the United States Constitution and N.D. Const. art. I, § 12, is well-established:

In order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) "show that counsel's representation fell below an objective standard of reasonableness" and (2) "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Surmounting Strickland's high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial or in pretrial proceedings, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a most ...

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