Hemmesch v. Bonebrake , 2002 ND 168 ( 2002 )

Filed 11/5/02 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2002 ND 166

Ambrose Joel Whiteman, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20020163

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lawrence A. Leclerc, Judge.

AFFIRMED.

Per Curiam.

Steven D. Mottinger (argued) and Douglas Nesheim (on brief), Fraase, Johnson, Ramstad & Mottinger, 15 9th Street South, Fargo, ND 58103-1830, for petitioner and appellant.

Wade L. Webb, Assistant State’s Attorney, Courthouse, P.O. Box 2806, Fargo, ND 58108-2806, for respondent and appellee.

Whiteman v. State

No. 20020163

Per Curiam.

[¶1] Ambrose Joel Whiteman appealed a trial court judgment dismissing his petition for post-conviction relief.  On May 22, 1998, a jury convicted Whiteman of murder.  His trial attorney, Gordon Dexheimer, did not file a notice of appeal.  On June 25, 2001, Whiteman filed an application for post-conviction relief, alleging ineffective assistance of counsel based on his attorney’s failure to file a direct appeal.  The trial court summarily dismissed Whiteman’s petition.  On appeal, this Court reversed and remanded for an evidentiary hearing, concluding Whiteman had raised genuine issues of material fact regarding his instructions to Dexheimer.   See Whiteman v. State , 2002 ND 77, ¶¶ 21-23, 643 N.W.2d 704.  After an evidentiary hearing on June 20, 2002, at which Dexheimer and Whiteman testified, the trial court found Dexheimer’s testimony more credible and determined Dexheimer followed Whiteman’s instructions to not file a direct appeal.

[¶2] We summarily affirm the trial court judgment under N.D.R.App.P. 35.1(a)(2).

[¶3] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

William A. Neumann

Mary Muehlen Maring

Carol Ronning Kapsner