Filed 2/13/14 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2014 ND 27

Robert Earnest Delaney, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20130260

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Per Curiam.

Charles A. Stock, 407 North Broadway, P.O. Box 605, Crookston, Minn. 56716-0605, for petitioner and appellant; on brief.

Brian D. Grosinger, Assistant State’s Attorney, 210 Second Avenue NW, Mandan, N.D. 58554, for respondent and appellee; on brief.

Delaney v. State

No. 20130260

Per Curiam.

[¶1] Robert Delaney appeals from a district court order denying his application for post-conviction relief.  Delaney argues the court erred in finding he was not denied effective assistance of counsel and in not ensuring he voluntarily and knowingly waived his constitutional right to testify.  We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7), holding that the court’s conclusion is based on findings of fact that are not clearly erroneous and that “the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily” under State v. Mulske , 2007 ND 43, ¶ 11, 729 N.W.2d 129.

[¶2] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Lisa Fair McEvers

Carol Ronning Kapsner