Matter of E.W.F. , 2009 ND 185 ( 2009 )

Filed 11/17/09 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2009 ND 187

Ronald R. Ernst, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20090192

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Per Curiam.

Ronald R. Ernst, self-represented, petitioner and appellant.

Leah J. Viste, Assistant State's Attorney, Courthouse, P.O. Box 2806, Fargo, N.D. 58108-2806, for respondent and appellee.

Ernst v. State

No. 20090192

Per Curiam.

[¶1] Ronald R. Ernst appeals from the trial court’s order denying his third application for post-conviction relief.  In 2002, Ernst pled guilty to burglary, stalking, two counts of theft, disorderly conduct, criminal mischief, and indecent exposure.  Ernst applied for post-conviction relief and was denied in 2004 and 2006. See Ernst v. State , 2006 ND 203, 725 N.W.2d 588 (affirming the trial court’s dismissal of post-

conviction relief alleging ineffective assistance of counsel, failure to prove an element of the crime, and improper reference to an amended statute based on res judicata and misuse of process); Ernst v. State , 2004 ND 152, 683 N.W.2d 891 (affirming the trial court’s denial of Ernst’s application for post-conviction relief based on a claim of ineffective assistance of counsel).  On appeal, he raises numerous arguments including the State withheld from him favorable evidence, law enforcement searched his residence with an invalid warrant, he should not have been charged with burglary because no proof of theft at the burglary location existed, and criminal trespass would have been a more appropriate charge.  Because his claim that the State withheld favorable evidence was not adequately raised in the trial court, we will not consider it on appeal.   See Darby v. Swenson Inc. , 2009 ND 103, ¶ 23, 767 N.W.2d 147 (concluding that the failure to adequately brief an argument precludes relief on that issue); State v. Myers , 2006 ND 242, ¶ 16, 724 N.W.2d 168 (“[T]his Court generally will not consider issues that a defendant has failed to bring to the attention of the district court.”).  The district court properly concluded that Ernst’s claims were based on either res judicata or misuse of process.   See Klose v. State , 2008 ND 143, ¶ 10, 752 N.W.2d 192 (determining that raising an issue in a post-conviction application that the defendant could have raised in a previous post-conviction application is a misuse of process, and the defendant is not entitled to relief if the contentions are only variations of previously argued issues).

[¶2] We affirm under N.D.R.App.P. 35.1(a)(1), (6), and (7).  

[¶3] Gerald W. VandeWalle, C.J.

Mary Muehlen Maring

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner