Kalmio v. State, 082219 NDSC, 20190051

Docket Nº:20190051
Opinion Judge:TUFTE, JUSTICE.
Party Name:Omar Mohamed Kalmio, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
Attorney:Omar M. Kalmio, self-represented, Bismarck, N.D., petitioner and appellant; on brief. Rozanna C. Larson, State's Attorney, and Kelly A. Dillon, Deputy State's Attorney, Minot, N.D., for respondent and appellee; on brief.
Judge Panel:Jerod E. Tufte Daniel J. Crothers Jon J. Jensen Lisa Fair McEvers Gerald W.VandeWalle, C.J.
Case Date:August 22, 2019
Court:Supreme Court of North Dakota
 
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2019 ND 223

Omar Mohamed Kalmio, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20190051

Supreme Court of North Dakota

August 22, 2019

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

Omar M. Kalmio, self-represented, Bismarck, N.D., petitioner and appellant; on brief.

Rozanna C. Larson, State's Attorney, and Kelly A. Dillon, Deputy State's Attorney, Minot, N.D., for respondent and appellee; on brief.

OPINION

TUFTE, JUSTICE.

[¶1] Omar Kalmio appeals after the district court entered a judgment on remand again denying his post-conviction relief application. We conclude the district court on remand did not clearly err in finding Kalmio failed to show he was prejudiced in his direct appeal when his appellate counsel did not brief the issue of the admissibility of prior bad acts testimony. We further conclude the court did not err in denying him an additional evidentiary hearing on remand. We affirm.

I

[¶2] This appeal follows our remand in Kalmio v. State, 2018 ND 182, 915 N.W.2d 655. The factual and procedural background of this case is detailed in that opinion and in the direct appeal, State v. Kalmio, 2014 ND 101, 846 N.W.2d 752, and we need not repeat it here except to the extent necessary for an understanding of the arguments in this appeal.

[¶3] In 2013, a jury found Kalmio guilty of four counts of class AA felony murder. In Kalmio, 2014 ND 101, ¶¶ 1, 52, 846 N.W.2d 752, a majority of this Court affirmed the convictions. In 2014, Kalmio applied for post-conviction relief, raising multiple grounds, including ineffective assistance of counsel. After evidentiary hearings, the district court entered a final judgment denying his application in 2017. Kalmio appealed. In Kalmio, 2018 ND 182, ¶¶ 1, 22, 915 N.W.2d 655, this Court affirmed in part, reversed in part, and remanded to the district court for additional findings on whether the representation of Kalmio's appellate counsel during the direct appeal in the criminal proceedings prejudiced his direct appeal.

[¶4] On December 19, 2018, the district court entered its order on remand, again denying his post-conviction application. In its order, the court found Kalmio failed to meet his burden to show he was prejudiced by his appellate counsel's unprofessional errors. The court also denied Kalmio's request for an evidentiary hearing on remand. A judgment on remand was entered on December 21, 2018.

[¶5] On January 31, 2019, the district court also entered an order denying Kalmio's December 26, 2018, amended post-conviction application. Kalmio filed his notice of appeal on February 13, 2019, appealing only from the district court's December 19, 2018, order on remand. We treat Kalmio's attempted appeal from the court's order as an appeal from the subsequent judgment on remand entered on December 21, 2018. See Broadwell v. State, 2014 ND 6, ¶ 4, 841 N.W.2d 750 (citation omitted) ("An attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.").

II

[¶6] Kalmio argues the district court erred in ruling he failed to show he was prejudiced in his direct appeal by his appellate counsel's failure to brief the issue of admissibility of prior bad acts testimony and failure to study the record.

[¶7] We have explained our standard of review for an ineffective assistance of counsel claim in a post-conviction proceeding: Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on...

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