Opinion
A180767
07-24-2024
DAVID JAMES KELSO, Petitioner-Appellant, v. Erin REYES, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
Margaret Huntington and Equal Justice Law fled the brief for appellant. Section B of the opening brief and a reply brief were fled by appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 June 14, 2024.
Umatilla County Circuit Court 20CV30489 J. Burdette Pratt, Judge.
Margaret Huntington and Equal Justice Law fled the brief for appellant. Section B of the opening brief and a reply brief were fled by appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
Affirmed.
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 argues that he was denied effective assistance of appellate counsel. See ORAP 5.90(1)(b). The state filed an answering brief responding to petitioner's arguments, and petitioner was granted leave to file a pro se supplemental reply brief. 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).
After a jury trial, petitioner was convicted of first-degree burglary, ORS 164.225, second-degree burglary, ORS 164.215, interference with making a report, ORS 165.572, two counts of fourth-degree assault, ORS 163.160, strangulation, ORS 163.187, and menacing, ORS 163.190. The trial court sentenced him to 160 months in prison. Having reviewed the record, including the trial court file, the transcript of the hearings, and the post-conviction court proceedings, and having reviewed the Balfour brief, including the arguments in Section B of the brief and the state's response to those arguments, we have identified no arguably meritorious issues. Regarding the arguments in petitioner's pro se supplemental reply brief, we are unable to address them because they are based on materials that are not part of the record.
Affirmed.