State v. Klein

[Go to Documents]Filed Feb. 23, 2006[Download as WordPerfect]IN THE SUPREME COURTSTATE OF NORTH DAKOTA2006 ND 37

State of North Dakota, Plaintiff and Appellee
v.
Paul Henry Klein, Defendant and Appellant

No. 20050293

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
AFFIRMED.
Per Curiam.
William Kirschner, 1351 Page Drive, Ste. 104, Fargo, N.D. 58103, for defendant and appellant; submitted on briefs.
Kara Schmitz Olson, Assistant State's Attorney, P.O. Box 2806, Fargo, N.D. 58108-2806, for plaintiff and appellee; submitted on briefs.

State v. Klein
No. 20050293

Per Curiam.

[¶1] Paul Henry Klein appeals from an amended judgment of conviction finding him guilty of driving while under the influence of alcohol. On appeal, Klein argues he received ineffective assistance of counsel. Klein bases his claim of ineffective assistance of counsel on his counsel's failure to object to the State's entry into evidence of Intoxilyzer breath test results and supporting documents; failure to object to the admission of incriminating statements Klein made, and failure to request necessary jury instructions.

[¶2] To establish ineffective assistance of counsel, a party must prove (1) counsel's performance was deficient such that it fell below an objective standard of reasonableness; and, (2) counsel's deficient performance prejudiced the defendant. Klose v. State, 2005 ND 192, ¶ 9, 705 N.W.2d 809. This Court prefers an ineffective assistance of counsel claim be made in an application for post-conviction relief so that an evidentiary record can be made that will allow scrutiny of the reasons underlying counsel's conduct. State v. Causer, 2004 ND 75, ¶ 19, 678 N.W.2d 552. Nevertheless, this Court will, on direct appeal, examine the entire record to determine if assistance of counsel was plainly defective. Id. Assistance of counsel is plainly defective when the record affirmatively shows ineffectiveness of constitutional dimensions or the defendant points to some evidence in the record to support the claim. Id. "When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made." State v. Strutz, 2000 ND 22, ¶ 26, 606 N.W.2d 886.

[¶3] Our review of the record indicates Klein's counsel was not plainly defective. We summarily affirm under N.D.R.App.P. 35.1(a)(1) and (3).

[¶4]Gerald W. VandeWalle, C.J.
Mary Muehlen Maring
Daniel J. Crothers
Carol Ronning Kapsner
Dale V. Sandstrom