Curtiss v. State , 2015 ND 83 ( 2015 )

Filed 4/15/15 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2015 ND 83

Spencer Curtiss, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20140365

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

AFFIRMED.

Per Curiam.

Lee M. Grossman, P.O. Box 475, Valley City, N.D. 58072, for petitioner and appellant; submitted on brief.

Pamela A. Nesvig, Assistant State’s Attorney, P.O. Box 5518, Bismarck, N.D. 58506-5518, for respondent and appellee; submitted on brief.

Curtiss v. State

No. 20140365

Per Curiam.

[¶1] Spencer Curtiss appealed from a district court order summarily dismissing his second application for post-conviction relief.  In December 2010, a jury convicted Curtiss of gross sexual imposition, and we summarily affirmed his conviction on  appeal.   State v. Curtiss , 2011 ND 175, 803 N.W.2d 834.  In September 2012, Curtiss filed his first application for post-conviction relief, and the district court subsequently held an evidentiary hearing on the application.  While that application was pending, Curtiss filed this second post-conviction relief application in August 2014.  The State requested the application be dismissed.  The district court summarily dismissed his second application because it was filed beyond the two-year statute of limitations.   See N.D.C.C. § 29-32.1-01(2).

[¶2] On appeal, Curtiss argues the district court erred in summarily dismissing his second post-conviction relief application because his allegations of newly discovered evidence fall within an exception to the two-year statute of limitations.  We affirm under N.D.R.App.P. 35.1(a)(6) and (7).   See Johnson v. State , 2015 ND 7, ¶ 7, 858 N.W.2d 632 (summary disposition is appropriate when the petitioner fails to raise a genuine issue of material fact that the alleged newly discovered evidence, which if proved and reviewed in light of the evidence as a whole, would establish the petitioner did not engage in the criminal conduct for which he was convicted, so as to satisfy the newly discovered evidence exception under N.D.C.C. § 29-32.1-01(3)(a)(1)).

[¶3] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Lisa Fair McEvers

Carol Ronning Kapsner