State v. Nickel , 2011 ND 200 ( 2011 )

Filed 10/18/11 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2011 ND 195

State of North Dakota, Plaintiff, Appellee

and Cross-Appellant

v.

Nicholas Baatz, Defendant, Appellant

and Cross-Appellee

No. 20110043

Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Per Curiam.

Jonathan R. Byers (argued), Assistant Attorney General, Office of Attorney General, 600 East Boulevard Avenue, Bismarck, ND 58505-0040, and Danny Lee Herbel (appeared), State’s Attorney, P.O. Box 196, Carson, ND 58529, for plaintiff, appellee and cross-appellant.

Joel Lyle Larson (argued), 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, ND 58206-5849, for defendant, appellant and cross-appellee.

State v. Baatz

No. 20110043

Per Curiam.

[¶1] Nicholas Baatz appeals the district court’s criminal judgment after a jury convicted him of gross sexual imposition.  Baatz’s counsel argues insufficient evidence exists to support the conviction.  We affirm under N.D.R.App.P. 35.1(a)(3), concluding the jury verdict was supported by substantial evidence.

[¶2] Baatz filed a Rule 24, N.D.R.App.P., supplemental brief arguing his constitutional right to counsel at his preliminary hearing was denied and his appointed counsel was ineffective.  Based on the record, we cannot determine whether Baatz was denied his constitutional right to counsel.  We also cannot conclude that Baatz’s counsel was plainly defective.  We affirm without prejudice to Baatz’s right to raise denial of his constitutional right to counsel and ineffective assistance of counsel in postconviction proceedings.   See State v. Palmer , 2002 ND 5, ¶ 13, 638 N.W.2d 18 (concluding the defendant’s ineffective assistance of counsel claim on direct appeal was without merit, but doing so without prejudice to his right to raise the issue in postconviction proceedings).

[¶3] Baatz filed his appeal after a district court granted postconviction relief allowing an untimely filing of a notice of appeal.  The State cross-appeals, arguing the district court erred by granting Baatz’s application for postconviction relief.  We affirm under N.D.R.App.P. 35.1(a)(2), concluding the district court’s findings of fact  were not clearly erroneous.

[¶4] Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner

Dale V. Sandstrom

Gerald W. VandeWalle, C.J.