Filed 11/5/02 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Ambrose Joel Whiteman, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20020163
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lawrence A. Leclerc, Judge.
AFFIRMED.
Per Curiam.
Steven D. Mottinger (argued) and Douglas Nesheim (on brief), Fraase, Johnson, Ramstad & Mottinger, 15 9th Street South, Fargo, ND 58103-1830, for petitioner and appellant.
Wade L. Webb, Assistant State’s Attorney, Courthouse, P.O. Box 2806, Fargo, ND 58108-2806, for respondent and appellee.
Whiteman v. State
No. 20020163
Per Curiam.
[¶1] Ambrose Joel Whiteman appealed a trial court judgment dismissing his petition for post-conviction relief. On May 22, 1998, a jury convicted Whiteman of murder. His trial attorney, Gordon Dexheimer, did not file a notice of appeal. On June 25, 2001, Whiteman filed an application for post-conviction relief, alleging ineffective assistance of counsel based on his attorney’s failure to file a direct appeal. The trial court summarily dismissed Whiteman’s petition. On appeal, this Court reversed and remanded for an evidentiary hearing, concluding Whiteman had raised genuine issues of material fact regarding his instructions to Dexheimer. See Whiteman v. State , 2002 ND 77, ¶¶ 21-23, 643 N.W.2d 704. After an evidentiary hearing on June 20, 2002, at which Dexheimer and Whiteman testified, the trial court found Dexheimer’s testimony more credible and determined Dexheimer followed Whiteman’s instructions to not file a direct appeal.
[¶2] We summarily affirm the trial court judgment under N.D.R.App.P. 35.1(a)(2).
[¶3] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner