Opinion
A180738
06-26-2024
LEVI DANE SIMMONS, Petitioner-Appellant, v. JAMIE MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
Jason Weber and O'Connor Weber LLC fled the brief for appellant. Section B of the brief was prepared by appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted May 13, 2024
Malheur County Circuit Court 21CV29991; A180738 J. Burdette Pratt, Senior Judge.
Jason Weber and O'Connor Weber LLC fled the brief for appellant. Section B of the brief was prepared by appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Chief Judge and Egan, Judge.
EGAN, J.
Petitioner appeals from a judgment denying him post-conviction relief. His appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). The brief contains a Section B, in which petitioner raises assignments of error relating to the postconviction court's denial of motions filed pursuant to Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966). The superintendent filed an answering brief responding to those arguments. Reviewing under ORAP 5.90(3) for "arguably meritorious issues," we affirm.
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel. See, e.g., State v. Yother, 310 Or.App. 563, 484 P.3d 1098 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v. Nooth, 254 Or.App. 402, 295 P.3d 115 (2012), rev den, 353 Or. 747 (2013) (same).
Defendant was charged with seven counts of encouraging child sexual abuse (ECSA) in the first degree, 19 counts of ECSA in the second degree, and five counts of encouraging sexual assault of an animal. Petitioner pleaded guilty to six counts of first-degree ECSA, four counts of second-degree ECSA, and the other charges were dismissed. The parties stipulated to an upward departure sentence of 36 months in prison on each of the first-degree ECSA counts, and to an upward departure sentence of 21 months in prison on the second-degree ECSA counts, with all counts to run consecutively. The trial court accepted petitioner's plea, accepted the stipulated sentence, and sentenced petitioner to 300 months in prison.
In the post-conviction court, petitioner argued that he received ineffective assistance of counsel. Petitioner filed two Church motions. After holding a Church hearing, the post-conviction court denied the motions. The post-conviction court also denied petitioner's motion for a replacement attorney. After a hearing on the petition for post-conviction relief, the court denied relief, determining that petitioner failed to establish that he received ineffective assistance of counsel. The post-conviction court was not persuaded that trial counsel failed to exercise reasonable professional skill and judgment, and petitioner failed to show prejudice.
Having reviewed the record, including the trial court file and the transcript of the hearings, and having reviewed the Balfour brief, including the arguments in Section B of the brief and the superintendent's response to those arguments, we have identified no arguably meritorious issues.
Affirmed.