Flanagan v. State

20050226 David Flanagan, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce B. Haskell
Nature of Action: Post-Conviction Relief
Counsel:
Appellant: Vinje Law Firm
Appellee: Lloyd Clayton Suhr , Asst. State's Attorney
Term: 12/2005   Argument: 12/12/2005  9:30am
ND cite: 2006 ND 76
NW cite: 712 N.W.2d 602

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Issues: Appellant's Statement of the Issues:
ISSUE I: The trial court failed to instruct the jury on the elements of gross sexual imposition under N.D.C.C.  12.1-20-03(2)(a), and therefore, Flanagan was convicted in violation of N.D.C.C.  12.1-01-03(1) which specifically states that, "No person may be convicted of an offense unless each element of the offense if proved beyond a reasonable doubt."
ISSUE II: Flanagan's counsel failed to object to the trial court's failure to instruct the jury on the elements of gross sexual imposition under N.D.C.C.  12.1-20-03(2)(a), and failed to object that the elements of the offense instruction was in violation of N.D.C.C.  12.1-01-03(1). This failure to object was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
ISSUE III:Flanagan's counsel failed to interview and subpoena A.P. (older sister) for trial, and failed to interview and investigate A.P. (younger sister). This failure to object was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
ISSUE IV:Flanagan's counsel failed to object to the prosecution using gender-based peremptory challenges. This failure to object was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
ISSUE V: Flanagan's counsel failed to preserve a curative instruction request when the State committed prosecutorial misconduct in asking the prejudicial question, "Is this the first time you've ever been accused of doing this?" after the Court had twice previously ruled that such questions were inadmissible. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.

Appellee's Statement of the Issues:
I.Whether Flanagan was convicted in violation of N.D.C.C.  12.1-01-03 (1)?
II.Whether Flanagan received ineffective assistance of counsel?

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Docket entries:
107/07/2005 NOTICE OF APPEAL: 07/01/2005
207/07/2005 ORDER FOR TRANSCRIPT: 07/01/2005
307/11/2005 ACKNOWLEDGMENT OF OTR & REQUEST FOR RETENTION OF RECORD ON APPEAL: 08/20/2005
407/21/2005 TRANSCRIPT DATED May 31, 2005
507/21/2005 DISK of tra
607/22/2005 RECORD ON APPEAL & Transcripts (3) (NOT REC'D: #78 & 101 -- Court Reporter Notes)
708/29/2005 MOT. EXT/TIME APPELLANT BRIEF
808/29/2005 ACTION BY CLERK (MAT). Granted: 09/29/2005
909/29/2005 APPELLANT BRIEF
1009/29/2005 E-FILED BRIEF (ATB)
1109/29/2005 APPELLANT APPENDIX
1209/29/2005 E-FILED APPENDIX (ATA)
1310/03/2005 Payment of $25 surcharge for ATB (Receipt #16315)
1410/07/2005 6 cc of ATA rec'd from Central Duplicating
1510/07/2005 7 cc of ATB rece'd from Central Duplicating
1610/28/2005 APPELLEE BRIEF
1710/28/2005 DISK - aeb (e-mailed)
1812/12/2005 APPEARANCES: Chad R. McCabe, David Flanagan; Lloyd C. Suhr
1912/12/2005 ARGUED: McCabe; Suhr
2012/12/2005 ORAL ARGUMENT WEBCAST
2104/19/2006 DISPOSITION: AFFIRMED
2204/19/2006 UNANIMOUS OPINION: Maring, Mary Muehlen
2304/20/2006 Judgment Mailed to Parties
2405/16/2006 MANDATE
2505/18/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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