Swearingen v. State, 833 N.W.2d 532

Matthew Swearingen was convicted of gross sexual imposition and his direct appeal (challenging sufficiency of the evidence) was summarily affirmed by this Court.
Swearingen filed a first petition for post-conviction relief alleging ineffective assistance of trial counsel for requesting a bench trial instead of a jury trial and failing to communicate reasons to him.
A post-conviction evidentiary hearing was held; the district court denied relief but made no detailed findings of fact.
The district court also denied Swearingen’s request for a transcript of the post-conviction evidentiary hearing, reasoning the issues were covered by prior criminal-case transcripts; Swearingen sought reconsideration but the court did not rule while the case was on appeal.
The appellate record lacked the post-conviction hearing transcript and did not clearly show that Swearingen knowingly, intelligently, and voluntarily waived his jury right; the signed stipulation and limited pretrial colloquy did not satisfy the record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Swearingen’s waiver of a jury trial was knowing, intelligent, and voluntary	Swearingen: counsel failed to adequately communicate; he could not make an informed waiver	State: waiver was documented by stipulation and parties agreed to bench trial	Court: record does not clearly show a valid waiver; genuine factual question exists and transcript is needed
Whether trial counsel was ineffective for requesting a bench trial	Swearingen: counsel’s conduct deprived him of effective assistance by not explaining/consulting	State: bench trial request was tactical and not ineffective	Court: cannot resolve on present record; evidentiary transcript required for review
Whether the district court abused discretion by denying transcript of post-conviction hearing	Swearingen: transcript necessary for appellate review; particularized need exists	State: prior criminal transcripts render post-conviction transcript unnecessary	Court: district court abused discretion; prior transcripts did not cover the post-conviction issues
Whether the district court’s order denying relief is adequate	Swearingen: order lacked findings of fact and mischaracterized issues	State: denial was proper as court found argument unpersuasive	Court: order lacked adequate findings and mischaracterized the record; remand for fuller findings and transcript

State v. Swearingen, 809 N.W.2d 833 (N.D. 2012) (direct appeal affirming conviction on sufficiency grounds)
State v. Kranz, 353 N.W.2d 748 (N.D. 1984) (court must ensure jury-waiver is voluntary, knowing, and intelligent)
Brady v. United States, 397 U.S. 742 (1970) (defendant’s waiver must be made with sufficient awareness of circumstances and consequences)
Klose v. State, 752 N.W.2d 192 (N.D. 2008) (district court has discretion to deny indigent applicant a transcript absent particularized need)
Waslaski v. State, 828 N.W.2d 787 (N.D. 2013) (post-conviction proceedings are civil and governed by civil rules)
Owens v. State, 578 N.W.2d 542 (N.D. 1998) (applicant must show particularized need for trial transcript)
United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) (federal rule: jury waiver must be knowing, intelligent, and voluntary)