McMorrow v. State, 940316
| Decision Date | 31 May 1995 |
| Docket Number | No. 940316,940316 |
| Parties | NOTICE: "SUMMARY DISPOSITION, SEE NORTH DAKOTA RULES OF APPELLATE PROCEDURE, RULE 35.1(a)." Patrick T. McMORROW, Jr., Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Cass County, East Central Judicial District; Norman J. Backes, Judge.
Mark A. Beauchene, Wold Johnson, P.C., Fargo, for petitioner and appellant. Submitted on brief.
Mark R. Boening, Asst. State's Atty., Fargo, respondent and appellee. Submitted on brief.
Robert P. Bennett, Atty. General's Office, Bismarck, for amicus curiae the State of N.D. Submitted on brief.
District Court, Cass County, 503 N.W.2d 848.
AFFIRMED.
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 Sec. 29-32.1-12.
We affirm under Rule 35.1(a)(2), (6), and (7), N.D.R.App.P.
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