Otto v. State

2015 ND 55

• Court: North Dakota Supreme Court
• Decided: March 24, 2015
• Docket: 20140400
• Status: Published

Opinion

Filed 3/24/15 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2015 ND 55

Wayne James Otto, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20140400

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

AFFIRMED.

Per Curiam.

Lee M. Grossman, 341 Central Avenue North, Suite 3, P.O. Box 475, Valley City, ND 58072, for petitioner and appellant; submitted on brief.

Dawn M. Deitz, Assistant State’s Attorney, 514 East Thayer Avenue, Bismarck, N.D. 58501, for respondent and appellee; submitted on brief.

Otto v. State

[¶1] Wayne Otto appeals from a district court order denying him post-conviction relief.  He argues the district court erred in summarily dismissing his application for post-conviction relief, because the court did not give all reasonable inferences in regard to his claim of ineffective assistance of counsel.  He also argues the district court erred by failing to hold an evidentiary hearing to further develop his claims regarding the alleged drug dog investigation.  We summarily affirm under N.D.R.App.P. 35.1(a)(6) and (7).   See Ude v. State , 2009 ND 71, ¶ 12, 764 N.W.2d 419 (a petitioner is not entitled to an evidentiary hearing on his application for post-

conviction relief if he fails to provide any competent evidence to raise a genuine issue of material fact); Dunn v. State , 2006 ND 26, ¶ 12, 709 N.W.2d 1 (if a petitioner fails to raise a genuine issue of material fact, summary disposition will be appropriate).

[¶2] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Lisa Fair McEvers

Carol Ronning Kapsner