State v. Mayer

2008 ND 120

• Court: North Dakota Supreme Court
• Decided: June 26, 2008
• Docket: 20080046
• Status: Published

Opinion

Filed 6/26/08 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2008 ND 127

Robert Allen, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20080025

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

AFFIRMED.

Per Curiam.

Todd A. Schwarz (on brief), Parkade Building, Second Floor, 515½ East Broadway, Suite 103, Bismarck, N.D. 58501, for petitioner and appellant.

Cynthia M. Feland (on brief), Assistant State’s Attorney, Courthouse, 514 East Thayer, Bismarck, N.D. 58501-4413, for respondent and appellee.

Allen v. State

[¶1] Robert Allen appeals from a district court order denying his petition for post-

conviction relief.  Allen was convicted of gross sexual imposition upon a child less than fifteen years of age.  He applied for post-conviction relief, arguing he was denied effective assistance of counsel at his criminal trial.  The district court found the performance of Allen’s counsel was not deficient, and denied his ineffective assistance of counsel claim.  On appeal, Allen argues his attorney’s failure to object to hearsay statements allowed repetitive and inflammatory evidence to come in.  He also argues the district court failed to follow the procedures under N.D.R.Ev. 803(24) prior to admitting a child’s statement about sexual abuse at trial.

[¶2] We summarily affirm under N.D.R.App.P. 35.1(a)(2), concluding Allen was not denied effective assistance of counsel.  We also affirm under N.D.R.App.P. 35.1(a)(7), concluding the additional issue raised on appeal to support Allen’s claim was not brought before the district court at the post-conviction relief hearing and therefore cannot be considered by this Court.   See Heng v. Rotech Medical Corp. , 2006 ND 176, ¶ 9, 720 N.W.2d 54 (“We do not address issues raised for the first time on appeal.”).

[¶3] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner