Poitra v. State

20120283 Joshua Poitra, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Lisa K. Fair McEvers
Nature of Action: Post-Conviction Relief
Counsel:
Appellant: Daniel Eric Gast
Appellee: Kimberlee Jo Hegvik , Asst. State's Attorney
Term: 12/2012   Argument: 12/20/2012  Waived
ND cite: 2013 ND 5
NW cite: 828 N.W.2d 546


Issues: Appellant's Statement of the Issues:
I. Trial Counsel was ineffective by failing to consult with an eye-witness expert.
II. Trial Counsel was ineffective by not taking necessary efforts to secure the presence of Defense Witnesses.
III. Trial Counsel was ineffective by not advising Defendant of the possibility that taking responsibility for the crime, even after conviction by a jury, could be used by the district court to sentence less than the 20 year minimum.
IV. Appeallate counsel was ineffective by not advising Defendant of his right to a post appeal Rule 35, in which he could have taken responsibility for the crime and asked for the minimum mandatory to not be applied.

Appellee's Statement of the Issues:
Whether Poitra failed to show that his attorneys' performances fell below an objective standard of reasonableness.

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Docket entries:
106/29/2012 NOTICE OF APPEAL: 06/29/2012
206/29/2012 ORDER FOR TRANSCRIPT (Part of NOA): 06/29/2012
307/24/2012 TRANSCRIPT DATED APRIL 30, 2012, & C.O.S.
407/25/2012 DISK-tra (4/30/12) e-mailed
507/27/2012 ELEC. RECORD ON APPEAL DATED 07/26/2012 (ENTRY NOS.1-40)
607/27/2012 ELEC. RECORD ON APPEAL DATED 07/26/2012 cass co # 08-k-02762 (ENTRY NOS.1-35, 39-116, and 119-181)
707/27/2012 Items sent via U.S. mail Nos. 36-38, Items not sent Nos 117-118
808/07/2012 ELEC. SUPP. RECORD ON APPEAL DATED 08/07/2012 (ENTRY NOS.41-42)
908/08/2012 Notice of Appointment of Attorney Gast for Appellant in Supplemental
1008/13/2012 Letter from Appellant requesting addt'l time for briefing. No action taken, due to counsel appt.
1108/15/2012 2nd ELEC. SUPP. RECORD ON APPEAL DATED 08/15/2012 (ENTRY NOS.43-45)
1208/29/2012 MOT. EXT/TIME APPELLANT BRIEF
1308/29/2012 E-FILED MOTION
1408/29/2012 ACTION BY CLERK. Granted: 10/04/2012
1509/14/2012 3rd ELEC. SUPP. RECORD ON APPEAL DATED September 13, 2012 (ENTRY NOS. 46-48)
1610/02/2012 APPELLANT BRIEF (PDF)
1710/02/2012 E-FILED BRIEF
1810/02/2012 APPELLANT APPENDIX
1910/02/2012 E-FILED APPENDIX
2010/04/2012 Rec'd $25 surcharge for ATB (Receipt #21592)
2110/11/2012 Rec'd 7 copies of ATB from CSD
2210/11/2012 Rec'd 6 copies of ATA from CSD
2310/16/2012 Proof of Service of Appellant's Brief & Appendix on Joshua Poitra on 10-15-12
2411/01/2012 APPELLEE BRIEF
2511/01/2012 E-FILED BRIEF
2611/05/2012 REQUEST TO WAIVE ORAL ARGUMENT BY APPELLANT
2711/05/2012 E-FILED MOTION
2811/05/2012 Received 7 copies of AEB from Central Duplicating
2911/07/2012 Rec'd $25 e-filing surcharge for AEB (Receipt #21567)
3011/20/2012 NOTICE OF ORAL ARGUMENT SENT
3111/27/2012 NO ACTION TAKEN (REQUEST TO WAIVE ORAL ARGUMENT BY APPELLANT)
3211/27/2012 S.CT. DETERMINED ORAL ARGUMENT NOT NECESSARY
3312/20/2012 APPEARANCES: Waived under N.D.R.App.P. 34(a)
3412/20/2012 ARGUED: Waived
3501/23/2013 DISPOSITION: AFFIRMED BY SUMMARY DISP.
3601/23/2013 UNANIMOUS OPINION: Per Curiam
3701/24/2013 Judgment Sent to Parties
3802/25/2013 MANDATE
3903/04/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4004/11/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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