State v. Nickel

¶1Filed 10/18/11 by Clerk of Supreme Court

¶2IN THE SUPREME COURT

¶3STATE OF NORTH DAKOTA

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¶5

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¶72011 ND 195

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¶11State of North Dakota, Plaintiff, Appellee

¶12 and Cross-Appellant

¶13

¶14v.

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¶16Nicholas Baatz, Defendant, Appellant

¶17 and Cross-Appellee

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¶21No. 20110043

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¶25Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

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¶27AFFIRMED.

¶28

¶29Per Curiam.

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¶31Jonathan 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.

¶32

¶33Joel Lyle Larson (argued), 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, ND 58206-5849, for defendant, appellant and cross-appellee.

¶34State v. Baatz

¶35No. 20110043

¶36

¶37Per Curiam.

¶38[¶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.

¶39[¶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.  SeeState 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).

¶40[¶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.

¶41[¶4] Daniel J. Crothers

¶42Mary Muehlen Maring

¶43Carol Ronning Kapsner

¶44Dale V. Sandstrom

¶45Gerald W. VandeWalle, C.J.

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