Summerlyn v. Fhuere

334 Or. App. 30

• Court: Court of Appeals of Oregon
• Decided: July 24, 2024
• Docket: A182845
• Status: Unpublished

Opinion

30 July 24, 2024 No. 516

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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

ADAM KOHL SUMMERLYN, Petitioner-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent. Marion County Circuit Court 22CV20544; A182845

Patricia A. Sullivan, Senior Judge. Submitted June 14, 2024. Laura Graser filed the brief for appellant. Ryan Kahn, Assistant Attorney General, waived appear- ance for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Affirmed. Nonprecedential Memo Op: 334 Or App 30 (2024) 31

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 P2d 1069 (1991). The brief does not contain a Section B. See ORAP 5.90(1)(b). We affirm.1 After a trial, petitioner was acquitted of attempted murder, but found guilty of first-degree assault with a fire- arm, felon in possession of a firearm (FIP), and unlawful use of a weapon with a firearm (UUW). After merging the guilty verdicts on the FIP and UUW counts, the trial court sentenced defendant to 106 months in prison. On direct appeal, we affirmed the judgment of conviction. State v. Summerlyn, 316 Or App 230, 501 P3d 1076 (2021), rev den, 369 Or 505 (2022). In the post-conviction court, petitioner argued that his trial counsel was ineffective. Based on evi- dence including a declaration from petitioner’s trial counsel, the post-conviction court found that petitioner’s claims were not credible, and that trial counsel provided a vigorous, com- petent defense. Having reviewed the record, including the post- conviction court file and the transcript of the hearings, and having reviewed the Balfour brief, we have identified no arguably meritorious issues. Affirmed.

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).