Cook v. State

2023 ND 13, 985 N.W.2d 724

Opinion

FILED

IN THE OFFICE OF THE CLERK OF SUPREME COURT

FEBRUARY 16, 2023

STATE OF NORTH DAKOTA

IN THE SUPREME COURT STATE OF NORTH DAKOTA

2023 ND 13

Joshua Cook, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee

No. 20220271

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Per Curiam.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Nicholas S. Samuelson (argued) and Kara S. Olson (on brief), Assistant State’s Attorneys, Fargo, ND, for respondent and appellee.

Cook v. State No. 20220271

Per Curiam.

[¶1] Joshua Cook appeals from a district court’s judgment denying his application for post-conviction relief. The court considered N.D.C.C. § 29-32.1- 12(1) and found that Cook’s claim was fully and finally determined during the appeal of his criminal conviction. Cook argues the court erred because it did not apply what he characterizes as an ameliorative penal change to N.D.C.C. § 19- 03.1-23(2) that went into effect after his sentencing date but before his conviction was affirmed on appeal.

[¶2] After reviewing the record, the district court did not err in its findings of fact or conclusions of law. The court did not err in relying on our prior decision in State v. Cook, 2018 ND 100, ¶ 31, 910 N.W.2d 179, that determined Cook was properly sentenced under the law in effect at the time of the sentencing hearing and prior to the effective date of the statutory amendment. We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7).

[¶3] Jon J. Jensen, C.J.

Daniel J. Crothers Lisa Fair McEvers Douglas A. Bahr Daniel D. Narum, D.J.

[¶4] The Honorable Daniel D. Narum, D.J., sitting in place of Tufte, J., disqualified.