|Filed May 31, 1995|
Patrick T. McMorrow, Jr., Petitioner and Appellant
State of North Dakota, Respondent and Appellee
Civil No. 940316
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman J. Backes, Judge.
Mark A. Beauchene, Wold Johnson, P.C., 414 Gate City Building, P.O. Box 1680, Fargo, ND 58107, for petitioner and appellant. Submitted on brief.
Mark R. Boening, Assistant State's Attorney, Courthouse, P.O. Box 2806, Fargo, ND 58108-2806, respondent and appellee. Submitted on brief.
Robert P. Bennett, Attorney General's Office, 600 East Boulevard Avenue, Bismarck, ND 58505-0040, for amicus curiae the State of North Dakota. Submitted on brief.
McMorrow v. State
Patrick T. McMorrow appealed from a judgment of the district court, East Central Judicial District, denying his petition for post-conviction relief.
McMorrow was convicted of gross sexual imposition in October 1992. The conviction was summarily affirmed by this court in State v. McMorrow, 503 N.W.2d 848 (N.D. 1993). The district court's denial of McMorrow's petition for post-conviction relief was also summarily affirmed by this court. McMorrow v. State, 524 N.W.2d 612 (N.D. 1994). After a full evidentiary hearing, the trial court correctly found that "the legitimate claims of the Petitioner have been fully and finally determined in previous proceedings and that the Petitioner has presented no new argument to warrant further proceedings."
McMorrow now attempts to challenge the constitutionality of the gross sexual imposition statute, section 12.1-20-03, NDCC, as it was applied to his case. He failed to raise this issue in his direct appeal or in his previous petition for post-conviction relief. A trial court may properly deny post-conviction relief "on the ground of misuse of process" when the petitioner presents no excuse for the failure to raise the issue earlier. NDCC 29-32.1-12.
We affirm under Rule 35.1(a)(2), (6), and (7), N.D.R. App. P.
Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Beryl J. Levine
Herbert L. Meschke