Thorstad v. State, 909 N.W.2d 111 (2018)

April 10, 2018 · North Dakota Supreme Court · No. 20170427
909 N.W.2d 111
Tanner THORSTAD, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee

Tanner THORSTAD, Petitioner and Appellant
v.
STATE of North Dakota, Respondent and Appellee

No. 20170427

Supreme Court of North Dakota.

Filed April 10, 2018

Mark C. Sherer, Dickinson, ND, for petitioner and appellant; submitted on brief.

Gabrielle J. Goter, Assistant State's Attorney, Mandan, ND, for respondent and appellee; submitted on brief.

Per Curiam.

[¶ 1] Tanner Thorstad appealed from the district court's order summarily dismissing his application for post-conviction relief. Thorstad argues the court erred in summarily dismissing his application because he received ineffective assistance of counsel. He claims his attorney failed to properly present his plea agreement to the court and his sentence was harsher than the sentence he agreed to. The district court granted the State's motion to summarily dismiss, concluding Thorstad failed to present competent and admissible evidence to raise an issue of material fact and establish both prongs of the two-prong test for ineffective assistance of counsel from Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We summarily affirm under N.D.R.App.P. 35.1(a)(6) and (7). See Leavitt v. State , 2017 ND 173, ¶¶ 7, 16, 898 N.W.2d 435 (holding a post-conviction applicant must present *112competent and admissible evidence on both prongs of the Strickland test to avoid summary dismissal of an ineffective assistance of counsel claim).

[¶ 2] Gerald W. VandeWalle, C.J.

Jerod E. Tufte

Daniel J. Crothers

Lisa Fair McEvers

Jon J. Jensen