
Filed 6/19/13 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA







2013 ND 92







Albert Spotted Wolf, 		Petitioner and Appellant



v.



State of North Dakota, 		Respondent and Appellee







No. 20120431







Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.



AFFIRMED.



Per Curiam.



Blake D. Hankey (on brief), 405 Bruce Avenue, Ste. 100, Grand Forks, N.D. 58201, for petitioner and appellant.



Dawn M. Deitz (on brief), Assistant State’s Attorney, 514 E. Thayer Avenue, Bismarck, N.D. 58501, for respondent and appellee.







Spotted Wolf v. State

No. 20120431



Per Curiam.

[¶1]	Albert Spotted Wolf appeals the trial court’s order denying his second post-

conviction relief application.  In his post-conviction application, Spotted Wolf raised the following issues: (1) the trial court violated his due process rights for failing to advise him of his rights under N.D.R.Crim.P. 11; (2) the trial court erred in accepting his guilty plea without a proper factual basis; and (3) his trial counsel was ineffective for allowing him to plead guilty despite having been highly intoxicated at the time of the sexual assault.  We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7) on the grounds of misuse of process and res judicata.  
See
 
Klose v. State
, 2008 ND 143, ¶ 10, 752 N.W.2d 192 (holding misuse of process precludes claims when the defendant inexcusably failed to pursue an issue on appeal and now seeks review in a post-conviction application or failed to raise an issue in an initial post-conviction application and now seeks review in a subsequent post-conviction application); 
Smestad v. State
, 2011 ND 163, ¶ 6, 801 N.W.2d 691 (holding res judicata precludes post-conviction relief claims or variations of the same claim that have been fully and finally decided in a prior proceeding).		

[¶2]	Gerald W. VandeWalle, C.J.

Mary Muehlen Maring

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner



