State v. Mayer

¶1Filed 6/26/08 by Clerk of Supreme Court

¶2IN THE SUPREME COURT

¶3STATE OF NORTH DAKOTA

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¶72008 ND 127

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¶11Robert Allen, Petitioner and Appellant

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¶13v.

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¶15State of North Dakota, Respondent and Appellee

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¶19No. 20080025

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¶23Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

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¶25AFFIRMED.

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¶27Per Curiam.

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¶29Todd A. Schwarz (on brief), Parkade Building, Second Floor, 515½ East Broadway, Suite 103, Bismarck, N.D. 58501, for petitioner and appellant.

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¶31Cynthia M. Feland (on brief), Assistant State’s Attorney, Courthouse, 514 East Thayer, Bismarck, N.D. 58501-4413, for respondent and appellee.

¶32Allen v. State

¶33No. 20080025

¶34

¶35Per Curiam.

¶36[¶1] Robert Allen appeals from a district court order denying his petition for post-

¶37conviction 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.

¶38[¶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.”).

¶39[¶3] Gerald W. VandeWalle, C.J.

¶40Dale V. Sandstrom

¶41Daniel J. Crothers

¶42Mary Muehlen Maring

¶43Carol Ronning Kapsner

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