Opinion
A181683
06-26-2024
DANIEL FAUSTINO ARCE, aka Daniel Arce, Petitioner-Appellant, v. Jamie MILLER, Superintendent,Snake River Correctional Institution, Defendant-Respondent.
Jason Weber and Equal Justice Law filed the brief for appellant. Ryan Kahn, Assistant Attorney General, waived appearance 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). Snake River Correctional Institution,
Submitted May 13, 2024
Malheur County Circuit Court 21CV00224; A181683 Erin K. Landis, Judge.
Jason Weber and Equal Justice Law filed the brief for appellant.
Ryan Kahn, Assistant Attorney General, waived appearance for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
EGAN, J.
Petitioner appeals from a judgment granting summary judgment and dismissing his amended petition for 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 does not contain a Section B. See ORAP 5.90(1)(b). 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).
In 2017, petitioner was charged with 14 counts, including charges of first-degree robbery with a firearm, ORS 164.415(1)(a). In 2018, a jury returned a verdict of guilty on 11 of the 14 charges, and the other counts were dismissed. Petitioner was sentenced to over 200 months in prison.
In the post-conviction court, petitioner argued, among other things, that he received ineffective assistance of counsel because trial counsel failed to assign error to the trial court's instruction to the jury that it could reach a verdict of guilty without unanimous agreement of all jurors. Petitioner also argued that the trial court's jury instruction, which allowed for nonunanimous jury verdicts, constituted structural error and that he was actually innocent. The superintendent filed a motion for summary judgment, pointing out, among other things, that each conviction was based on a unanimous jury verdict. The post-conviction court granted the superintendent's motion and dismissed the amended petition.
Having reviewed the record, including the trial court file and the transcript of the hearings, and having reviewed the Balfour brief, we have identified no arguably meritorious issues.
Affirmed.