2022 ND 36 - Whetsel v. State

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                        FEBRUARY 18, 2022
                                                                    STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

2022 ND 36


Byron Whetsel,                                       Petitioner and Appellant
     v.
State of North Dakota,                              Respondent and Appellee

                          Nos. 20210180, 20210181

Appeal from the District Court of Ransom County, Southeast Judicial District,
the Honorable Jay A. Schmitz, Judge.

AFFIRMED.

Per Curiam.

Benjamin C. Pulkrabek, Mandan, ND, for petitioner and appellant.

Fallon M. Kelly, State’s Attorney, Lisbon, ND, for respondent and appellee.
                              Whetsel v. State
                           Nos. 20210180, 20210181

Per Curiam.

[¶1] Byron Whetsel appeals from an order dismissing his applications for
post-conviction relief. In 2017, Whetsel was convicted of child abuse, child
neglect, and murder. See State v. Whetsel,

2017 ND 237

902 N.W.2d 924

. In
December 2017, Whetsel applied for post-conviction relief. The district court
denied his application, which was affirmed on appeal. See Whetsel v. State,

2019 ND 237

933 N.W.2d 466

. In September 2020, Whetsel filed a second
application for post-conviction relief. The district court denied his application,
and the court’s decision was reversed on appeal and remanded. See Whetsel v.
State,

2021 ND 28

955 N.W.2d 57

. In December 2020, Whetsel filed a third
application for post-conviction relief while the appeal was pending. The two
cases were consolidated, and the State moved to dismiss. The district court
granted the State’s motion to dismiss, concluding the applications were
brought outside the two-year statute of limitations under N.D.C.C. § 29-32.1-
01(2) and none of the exceptions applied under N.D.C.C. § 29-32.1-01(3).

[¶2] On appeal, Whetsel argues the district court erred by denying his claim
of ineffective assistance of post-conviction counsel. We conclude the district
court did not err in determining Whetsel’s applications are untimely and are
barred by the statute of limitations. We summarily affirm under N.D.R.App.P.
35.1(a)(6).

[¶3] Jon J. Jensen, C.J.
     Gerald W. VandeWalle
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte




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