[Go to Documents] | Filed July 18, 1994 |
Patrick T. McMorrow, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
Civil No. 930337
Appeal from the District Court for Cass County, East Central Judicial District, the Honorable Norman J. Backes, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
Mark A. Beauchene of Wold, Johnson, Feder, Brothers, Beauchene & Schimmelpfennig, P.O. Box 1680, Fargo, N.D. 58107, for petitioner and appellant.
Mark R. Boening, Assistant State's Attorney, P.O. Box 2806, Fargo, N.D. 58108-2806, for respondent and appellee.
McMorrow v. State
Sandstrom, Justice.
Patrick T. McMorrow appeals from a trial court judgment dismissing his application for post-conviction relief. Because McMorrow's notice of appeal was not timely filed, we remanded this case to the trial court to decide, under Rule 4(a), N.D.R.App.P., if there was excusable neglect for the late-filed notice of appeal. See McMorrow v. State, (Civil No. 930337), 516 N.W.2d 282 (N.D. 1994). On remand, the trial court found there was excusable neglect.
In October 1992, McMorrow was convicted of gross sexual imposition. The conviction was affirmed on appeal, under Rule 35.1(a)(3), N.D.R.App.P. State v. McMorrow, 503 N.W.2d 848 (N.D. 1993). In March 1993, McMorrow applied for post-conviction relief, claiming his conviction should be reversed because of lack of evidence, ineffective assistance of counsel, and prosecutorial misconduct. Following an evidentiary hearing, the trial court denied McMorrow's application finding: (1) McMorrow's claim of lack of evidence had already been adversely decided by this Court in McMorrow's direct appeal; (2) McMorrow had not been denied the effective assistance of counsel; and, (3) the prosecutor did not commit misconduct.
We affirm the trial court under Rule 35.1(a)(2) and (7), N.D.R.App.P.
Dale V. Sandstrom
William A. Neumann
Beryl J. Levine
Herbert L. Meschke
Gerald W. VandeWalle, C.J. - I concur in the result