Rourke v. State

2018 ND 137, 912 N.W.2d 311
CourtNorth Dakota Supreme Court
DecidedJune 5, 2018
Docket20170375
StatusPublished
Cited by14 cases

This text of 2018 ND 137 (Rourke v. State) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rourke v. State, 2018 ND 137, 912 N.W.2d 311 (N.D. 2018).

Opinion

McEvers, Justice.

*313 [¶ 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 *314 errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668 , 688, 694 [ 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (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 deferential one. ... It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence.

Booth v. State , 2017 ND 97 , ¶ 7, 893 N.W.2d 186 (citing Bahtiraj v. State, 2013 ND 240 , ¶ 9, 840 N.W.2d 605 ). "The defendant must first overcome the 'strong presumption' that trial counsel's representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight." Laib v. State , 2005 ND 187 , ¶ 9, 705 N.W.2d 845 . A district court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Giwa v. State , 2017 ND 250 , ¶ 6, 902 N.W.2d 734 .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Campbell v. State
2025 ND 152 (North Dakota Supreme Court, 2025)
Rademacher v. State
2025 ND 137 (North Dakota Supreme Court, 2025)
Edwards v. State
2025 ND 43 (North Dakota Supreme Court, 2025)
Samaniego v. State
2024 ND 187 (North Dakota Supreme Court, 2024)
Schweitzer v. State
2024 ND 151 (North Dakota Supreme Court, 2024)
Urrabazo v. State
2024 ND 67 (North Dakota Supreme Court, 2024)
Koon v. State
2023 ND 247 (North Dakota Supreme Court, 2023)
Black Elk v. State
2023 ND 150 (North Dakota Supreme Court, 2023)
Brickle-Hicks v. State
2021 ND 177 (North Dakota Supreme Court, 2021)
Dubois v. State
2021 ND 153 (North Dakota Supreme Court, 2021)
Morales v. State
2019 ND 137 (North Dakota Supreme Court, 2019)
Brewer v. State
2019 ND 69 (North Dakota Supreme Court, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2018 ND 137, 912 N.W.2d 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rourke-v-state-nd-2018.