Tweed v. State

20090171 Reginald Tweed, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Frank L. Racek
Nature of Action: Post-Conviction Relief
Counsel:
Appellant: Chad Rory McCabe
Appellee: Mark Rainer Boening , Asst. State's Attorney
Term: 01/2010   Argument: 01/28/2010  9:30am
ND cite: 2010 ND 38
NW cite: 779 N.W.2d 667

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
ISSUE I: David Sumner's admissions to Todd Suedel is evidence not previously presented and heard which requires vacation of the conviction in the interest of justice.
ISSUE II: Tweed's trial counsel failed to move for a new trial based upon the newly discovered evidence of David Sumner's admissions to Todd Suedel. 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.

Reply Brief Issues
ISSUE I: David Sumner's admissions to Todd Suedel is evidence not previously presented and heard which requires vacation of the conviction in the interest of justice.
ISSUE II: Tweed's trial counsel failed to move for a new trial based upon the newly discovered evidence of David Sumner's admissions to Todd Suedel. 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. David Sumner's admissions to Todd Suedel are not newly discovered evidence of the weight and quality that would probably produce an acquittal, and therefore cannot require a vacation of Reginald Tweed's conviction.
II. Trial counsel's strategic decision to file a timely appeal of Reginald Tweed's conviction and other strategic trial decisions cannot be construed as ineffective assistance of counsel.

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Docket entries:
106/08/2009 NOTICE OF APPEAL: 06/04/2009
206/08/2009 ORDER FOR TRANSCRIPT: 06/04/2009
306/16/2009 TRANSCRIPT DATED February 4, 2009 & C.O.S.
406/16/2009 DISK - tra dated 2-4-09
507/07/2009 RECORD ON APPEAL & separates (Nos. 21-exhibit & 23-Trans. dated 2-4-09) (Not rec'd: #18-tape)
607/23/2009 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
707/23/2009 E-FILED MOTION (MAT)
807/24/2009 ACTION BY CHIEF JUSTICE (MAT). Granted: 09/25/2009
907/28/2009 RECORD ON APPEAL for 91-K-140 - the underlying criminal case (incl. sep. nos. 76 & 116 tras &
1007/28/2009 not rec'd were entry nos. 77-89, & 92-94-exhibits)
1109/25/2009 APPELLANT BRIEF (e-filed)
1209/25/2009 E-FILED BRIEF (ATB)
1309/25/2009 APPELLANT APPENDIX (e-filed)
1409/25/2009 E-FILED APPENDIX (ATA)
1509/29/2009 Received $25 surcharge for ATB (Receipt #19012)
1610/02/2009 Received 6 copies of ATA from Central Duplicating.
1710/06/2009 Received 7 copies of ATB from Central Duplicating.
1810/20/2009 MOT. EXT/TIME APPELLEE BRIEF & Affidavit/Support (e-filed)
1910/20/2009 E-FILED MOTION (MAE)
2010/20/2009 ACTION BY CLERK. Granted: 11/24/2009
2111/24/2009 APPELLEE BRIEF (e-filed)
2211/24/2009 E-FILED BRIEF (AEB)
2311/30/2009 Consent from Mark Boening for 3rd yr Law Student Jennifer Cook to appear for State
2412/02/2009 Received $25 surcharge for AEB (Receipt #19251)
2512/07/2009 Received 7 copies of AEB from Central Duplicating
2612/14/2009 MOT. EXT/TIME REPLY BRIEF
2712/14/2009 E-FILED MOTION (MRY)
2812/14/2009 ACTION BY CLERK (extended to 4 p.m. on 12-23-09). Granted: 12/23/2009
2912/22/2009 NOTICE OF ORAL ARGUMENT SENT
3012/23/2009 REPLY BRIEF of Appellant (e-filed)
3112/23/2009 E-FILED BRIEF (RYB)
3212/27/2009 Request for Radio/TV Coverage (Associated Press) approved
3312/28/2009 Received 7 copies of RYB from CSD
3401/15/2010 Request for Radio/TV Coverage approved (ND Public Radio)
3501/28/2010 APPEARANCES: Chad R. McCabe/Mark R. Boening, Asst. State's Atty. & Jennifer Cook, 3rd yr law studen
3601/28/2010 ARGUED: McCabe/Cook
3701/28/2010 ORAL ARGUMENT WEBCAST
3803/08/2010 MOTION FOR Stay of Appeal and Remand to District Court
3903/08/2010 E-FILED MOTION (Motion for Stay and Remand)
4003/10/2010 ACTION BY SUPREME COURT. Denied
4103/16/2010 DISPOSITION: AFFIRMED
4203/16/2010 UNANIMOUS OPINION: Kapsner, Carol Ronning
4303/16/2010 (CONCUR IN THE RESULT): Crothers, Daniel John: CON/RES
4403/16/2010 (CONCUR IN THE RESULT): Maring, Mary Muehlen: CON/RES
4503/25/2010 PETITION FOR REHEARING
4603/25/2010 DISK NONCOMPLIANCE-PER
4704/06/2010 ACTION BY SUPREME COURT (PER). Denied
4804/22/2010 MANDATE
4904/26/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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