Curtiss v. State

¶1Filed 4/15/15 by Clerk of Supreme Court

¶2IN THE SUPREME COURT

¶3STATE OF NORTH DAKOTA

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¶72015 ND 83

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¶11Spencer Curtiss, Petitioner and Appellant

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¶13v.

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¶15State of North Dakota, Respondent and Appellee

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¶19No. 20140365

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¶23Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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¶25AFFIRMED.

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¶27Per Curiam.

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¶29Lee M. Grossman, P.O. Box 475, Valley City, N.D. 58072, for petitioner and appellant; submitted on brief.

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¶31Pamela A. Nesvig, Assistant State’s Attorney, P.O. Box 5518, Bismarck, N.D. 58506-5518, for respondent and appellee; submitted on brief.

¶32Curtiss v. State

¶33No. 20140365

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¶35Per Curiam.

¶36[¶1] Spencer Curtiss appealed from a district court order summarily dismissing his second application for post-conviction relief.  In December 2010, a jury convicted Curtiss of gross sexual imposition, and we summarily affirmed his conviction on  appeal.   State v. Curtiss , 2011 ND 175, 803 N.W.2d 834.  In September 2012, Curtiss filed his first application for post-conviction relief, and the district court subsequently held an evidentiary hearing on the application.  While that application was pending, Curtiss filed this second post-conviction relief application in August 2014.  The State requested the application be dismissed.  The district court summarily dismissed his second application because it was filed beyond the two-year statute of limitations.   See N.D.C.C. § 29-32.1-01(2).

¶37[¶2] On appeal, Curtiss argues the district court erred in summarily dismissing his second post-conviction relief application because his allegations of newly discovered evidence fall within an exception to the two-year statute of limitations.  We affirm under N.D.R.App.P. 35.1(a)(6) and (7).   See Johnson v. State , 2015 ND 7, ¶ 7, 858 N.W.2d 632 (summary disposition is appropriate when the petitioner fails to raise a genuine issue of material fact that the alleged newly discovered evidence, which if proved and reviewed in light of the evidence as a whole, would establish the petitioner did not engage in the criminal conduct for which he was convicted, so as to satisfy the newly discovered evidence exception under N.D.C.C. § 29-32.1-01(3)(a)(1)).

¶38[¶3] Gerald W. VandeWalle, C.J.

¶39Dale V. Sandstrom

¶40Daniel J. Crothers

¶41Lisa Fair McEvers

¶42Carol Ronning Kapsner