J. Erin Rourke, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
A. Gereszek, East Grand Forks, ND, for petitioner and
E. Hines (argued), Assistant State's Attorney, and Ryan
J. Younggren (on brief), Assistant State's Attorney,
Fargo, ND, for respondent and appellee.
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.
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.
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.
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
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 ...