
Filed 6/14/10 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA







2010 ND 111







State of North Dakota, 		Plaintiff and Appellee



v.



Roger Dale McKay, Jr., 		Defendant and Appellant







Nos. 20090295-20090298 & 20090342







Appeals from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge.



AFFIRMED.



Per Curiam.



Lonnie W. Olson (submitted on brief), State’s Attorney, 524 4th Avenue NE, Unit 16, Devils Lake, ND 58301, for plaintiff and appellee.



Mark Taylor Blumer (submitted on brief), 341 Central Avenue North, Suite 3, P.O. Box 475, Valley City, ND 58072, for defendant and appellant.

State v. McKay

Nos. 20090295-20090298 & 20090342



Per Curiam.

[¶1]	Roger McKay Jr. appeals from a district court judgment entering his plea of guilty to aggravated assault and from a district court order revoking his probation and sentencing him to 40 years in prison.  We affirm.

[¶2]	McKay raises two issues on appeal.  McKay argues the district court erroneously concluded his guilty plea had a sufficient factual basis because no evidence established the victim of McKay’s assault was rendered unconscious or suffered a bone fracture.  Substantial evidence exists supporting the district court’s finding, and with regard to this issue.

[¶3]	McKay also contends the district court erred by considering his guilty plea to aggravated assault when sentencing him on the probation revocation.  The district court’s sentencing is also affirmed because McKay’s derivative second argument is predicated on the alleged error from the first issue on appeal.

[¶4]	We affirm under N.D.R.App.P. 35.1(a)(3).

[¶5]	Gerald W. VandeWalle, C.J.

Daniel J. Crothers

Carol Ronning Kapsner

Dale V. Sandstrom

Zane Anderson, D.J.

[¶6]	The Honorable Zane Anderson, D.J., sitting in place of Maring, J., disqualified.

