STATE v. BAATZ

Per Curiam.

[¶ 1] Nicholas Baatz appeals the district court's criminal judgment after a jury convicted him of gross sexual imposition. Baatz's counsel argues insufficient evidence exists to support the conviction. We affirm under N.D.R.App.P. 35.1(a)(3), concluding the jury verdict was supported by substantial evidence.

[¶ 2] Baatz filed a Rule 24, N.D.R.App.P., supplemental brief arguing his constitutional right to counsel at his preliminary hearing was denied and his appointed counsel was ineffective. Based on the record, we cannot determine whether Baatz was denied his constitutional right to counsel. We also cannot conclude that Baatz's counsel was plainly defective. We affirm without prejudice to Baatz's right to raise denial of his constitutional right to counsel and ineffective assistance of counsel in postconviction proceedings. See State v. Palmer, 2002 ND 5, ¶ 13, 638 N.W.2d 18 (concluding the defendant's ineffective assistance of counsel claim on direct appeal was without merit, but doing so without prejudice to his right to raise the issue in postconviction proceedings).

[¶ 3] Baatz filed his appeal after a district court granted postconviction relief allowing an untimely filing of a notice of appeal. The State cross-appeals, arguing the district court erred by granting Baatz's application for postconviction relief. We affirm under N.D.R.App.P. 35.1(a)(2), concluding the district court's findings of fact were not clearly erroneous.

[¶ 4] Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner

Dale V. Sandstrom

Gerald W. VandeWalle, C.J.