Wilkinson v. State

2023 ND 64, 988 N.W.2d 548

• Court: North Dakota Supreme Court
• Decided: March 31, 2023
• Docket: 20220282
• Status: Published

Opinion

FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT MARCH 31, 2023 STATE OF NORTH DAKOTA

IN THE SUPREME COURT STATE OF NORTH DAKOTA

2023 ND 64

Warren James Wilkinson, Sr., Petitioner and Appellant v. State of North Dakota, Respondent and Appellee

No. 20220282

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.

AFFIRMED.

Per Curiam.

Laura C. Ringsak, Bismarck, ND, for petitioner and appellant; submitted on brief.

Andrew C. Eyre, Assistant State’s Attorney, and Murial Rott, third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, ND, for respondent and appellee; submitted on brief. Wilkinson v. State No. 20220282

[¶1] Warren Wilkinson appeals from a district court order denying his application for post-conviction relief. Wilkinson was convicted by a jury of gross sexual imposition. On direct appeal, Wilkinson argued insufficient evidence exists to sustain the conviction, and this Court affirmed. State v. Wilkinson, 2020 ND 244, 950 N.W.2d 761.

[¶2] Wilkinson argues his attorney’s representation fell below an objective standard of reasonableness because the attorney failed to submit a pretrial motion, failed to conduct a meaningful investigation, failed to validate the authenticity of a recording, made concessions at trial, and allowed Wilkinson to testify without adequately preparing him. After an evidentiary hearing, the district court denied Wilkinson’s application, concluding he did not overcome the presumption his trial counsel’s representation fell within the wide range of reasonable professional assistance.

[¶3] We conclude the district court’s findings are not clearly erroneous. See Truelove v. State, 2020 ND 142, ¶¶ 6, 11, 945 N.W.2d 272 (the clearly erroneous standard of review applies to findings of fact in post-conviction relief proceedings; matters of trial strategy will not be second-guessed on appeal). We summarily affirm under N.D.R.App.P. 35.1(a)(2).

[¶4] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Douglas A. Bahr