Marcel v. Pedro

339 Or. App. 455

• Court: Court of Appeals of Oregon
• Decided: April 2, 2025
• Docket: A182745
• Status: Unpublished

Opinion

No. 287 April 2, 2025 455

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DESHAUN DOMINIQUE MARCEL, Petitioner-Appellant, v. David PEDRO, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent. Umatilla County Circuit Court 21CV07962; A182745

J. Burdette Pratt, Senior Judge. Submitted January 10, 2025. Jason Weber and Equal Justice Law filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Affirmed. 456 Marcel v. Pedro

EGAN, J. Petitioner appeals from a judgment denying 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 P2d 1069 (1991). The brief contains a Section B. See ORAP 5.90(1)(b). We affirm.1 Based on evidence that defendant violently raped and sodomized his cousin, the state charged defendant with multiple sex crimes. In November 2019, the trial court entered a judgment of conviction after defendant pleaded no contest to first-degree rape, two counts of first-degree sodomy constituting domestic violence, first-degree sexual abuse constituting domestic violence, and strangulation constituting domestic violence. The trial court sentenced defendant to 180 months in prison. In seeking post-conviction relief, petitioner argued that he received ineffective assistance of counsel. The post- conviction court determined that petitioner did not show that his trial counsel failed to exercise reasonable profes- sional skill and judgment or that petitioner suffered prej- udice. Petitioner claimed, for example, that trial counsel told him that his sentence would likely be 90 months. The post-conviction court found that the claim was not credible because petitioner had authorized trial counsel to make a 140-month offer to the state, which was met with a counter- offer of 160 months. In Section B of his brief, petitioner raises argu- ments relating to the denial of his motion filed pursuant to Church v. Gladden, 244 Or 308, 417 P2d 993 (1966). In his motion, which was filed after the post-conviction trial, petitioner sought to raise claims relating to DNA evidence. After a hearing, the post-conviction court denied the motion as untimely. Having reviewed the record, including the post- conviction court file, the transcript of the hearings, the

1 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 P3d 1098 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v. Nooth, 254 Or App 402, 295 P3d 115 (2012), rev den, 353 Or 747 (2013) (same). Nonprecedential Memo Op: 339 Or App 455 (2025) 457

Balfour brief, the arguments in Section B of the brief, and the state’s response to those arguments in its answering brief, we have identified no arguably meritorious issues. Affirmed.