State v. Shelby

756                   October 30, 2024                No. 769

   This is a nonprecedential memorandum opinion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

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                    ROBERT C. SHELBY,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    16CR20915; A180203

   Thomas M. Ryan, Judge.
   Submitted September 13, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender filed
the opening brief for appellant. Section B of the brief and the
reply brief was prepared by appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before Lagesen, Chief Judge, and Egan, Judge.
   LAGESEN, C. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)                            757

           LAGESEN, C. J.
         After a jury trial, defendant was convicted of multiple offenses, including first-degree rape, ORS 163.375;
first-degree sexual abuse, ORS 163.427; strangulation,
ORS 163.187; fourth-degree assault, ORS 163.160; and
first-degree sodomy, ORS 163.405. He was sentenced to 830
months in prison.
          Defendant appealed, and we reversed on five counts
and on a sentence-enhancement factor due to lack of jury
unanimity. State v. Shelby, 

, 

 (2022). We also reversed and remanded for merger of
two counts. 

 On remand, the trial court dismissed the five
counts that had nonunanimous verdicts, and the state did
not pursue the sentence enhancement factor. After a resentencing hearing, the trial court sentenced defendant to a
total of 721 months in prison.
         Defendant’s appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 

, 

 (1991). The brief contains a Section B, in which
defendant argues, among other things, that the trial court
erred in imposing consecutive sentences on convictions for
first-degree rape and first-degree sodomy. The state filed
an answering brief responding to defendant’s arguments.
Reviewing under ORAP 5.90(3) for “arguably meritorious
issues,” we affirm.1
         Having reviewed the record, including the trial
court file and the transcript of the hearings, and having
reviewed the Balfour brief, including defendant’s arguments
in Section B of the brief and the state’s response to those
arguments, and having also considered the reply brief and
letters from defendant, 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, 

, 

 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 

, 

 (2012), rev den, 

 (2013) (same).