Whetsel v. State

                                                                                  FILED
                                                                          IN THE OFFICE OF THE
                                                                       CLERK OF SUPREME COURT
                                                                              MARCH 31, 2023
                                                                        STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

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

                                No. 20220351

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
                               No. 20220351

Per Curiam.

[¶1] Byron Whetsel appeals from an order summarily dismissing his
application for post-conviction relief before an evidentiary hearing was held.
Whetsel applied for post-conviction relief on August 4, 2022, approximately
five years after being convicted of criminal charges. He argues his sentences
are unconstitutional pursuant to the Eighth Amendment’s prohibition against
cruel and unusual punishment. The district court dismissed his application
finding that Whetsel did not satisfy any condition under N.D.C.C. § 29-32.1-
01(3) warranting consideration outside the statutory two-year period for
requesting relief, and that Whetsel did not provide adequate evidentiary support
for his claims to warrant a hearing. We conclude the district court properly
dismissed Whetsel’s application under these circumstances. We summarily
affirm under N.D.R.App.P. 35.1(a)(6). See Atkins v. State, 

,

 (finding summary denial of post-conviction relief appropriate
when the State moves for summary disposition, and a petitioner fails to provide
some competent evidence to support his claims).

[¶2] Jon J. Jensen, C.J.
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte
     Douglas A. Bahr




                                       1