State v. Hernandez-Camacho

654                   October 1, 2025               No. 847

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
           EDGAR HERNANDEZ-CAMACHO,
                 Defendant-Appellant.
            Washington County Circuit Court
                 C130423CR; A183775

  Eric Butterfield, Judge.
  Submitted April 11, 2025.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil Francis Byl, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for appellant. Section B of the brief was prepared by appellant.
   Dan Rayfield, 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.
Cite as 

 (2025)                                            655

           LAGESEN, C. J.
         This appeal arises after a post-conviction court’s
judgment remanded this criminal case for resentencing
because it had set aside two of defendant’s convictions on
the ground that those convictions rested on nonunanimous
jury verdicts. Pursuant to a stipulated general judgment
and the state’s motion for judgment of dismissal, the trial
court dismissed those counts on remand, and it resentenced
defendant to the same sentence it had imposed before: 150
months’ incarceration and 10 years’ post-prison supervision.
Appointed counsel filed a brief pursuant to ORAP 5.90 and
State v. Balfour, 

, 

 (1991). The brief
contains a Section B. The state filed an answering brief
responding to arguments raised in the Section B brief. See
ORAP 5.90(1)(b). Our review in this posture is to determine whether “the record discloses an arguably meritorious
issue.” State v. Dempsey, 

, 

(2025). Applying that standard, we affirm.1
         By way of background, a unanimous jury found
defendant guilty of one count of attempted rape in the first
degree and four counts of sexual abuse in the first degree.
The same jury, by nonunanimous verdicts, found defendant
guilty of two additional counts of sexual abuse in the first
degree. At sentencing, after accounting for the guilty verdicts that merged, the trial court entered a judgment of
conviction on four counts of first-degree sexual abuse, and
one count of attempted rape in the first-degree. It sentenced
defendant to 150 months’ incarceration by imposing two
consecutive 75-month sentences on two of the counts of sexual abuse, with two 75-month sentences for the remaining
sexual abuse counts and a 27-month sentence for attempted
rape running concurrently. The court also sentenced defendant to 10 years of post-prison supervision.
         Following the post-conviction court’s grant of relief
with respect to counts based on nonunanimous verdicts and
remand to the trial court for resentencing, the trial court
dismissed the counts based on nonunanimous verdicts, but,
after accounting for merger, entered a judgment of conviction
   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
656                            State v. Hernandez-Camacho

on three counts of first-degree sexual abuse and one count
of attempted first-degree rape. The court then imposed what
was, in effect, the same sentence as before, structuring it
the same way.
         In Section B of defendant’s brief, defendant raises
multiple challenges to his sentence, arguing that all of the
sexual abuse verdicts merged with the dismissed counts
and should also have been dismissed, that the trial court
incorrectly calculated his criminal history score, and that
his 150-month sentence is disproportionate. Defendant
acknowledges that the assigned errors are not preserved
and explicitly requests plain error review. In its responsive
brief, the state argues that the assigned errors are not eligible for plain error review and urges us to reject them for
that reason.
          As an initial matter, we observe that, in arguing
that the assignments of error presented in the Section B
brief do not qualify for plain error review, the state has not
engaged with or framed its arguments in terms of the applicable standard of review which, as noted, is whether the
record—not the briefing—discloses any “arguably meritorious” issues for the court’s review, such that the court must
order supplemental briefing to address the arguably meritorious issue. See Dempsey, 

 (discussing
standard of review). That is understandable, because the
state filed its responsive brief in this case before we issued
our decision in Dempsey clarifying our standard of review in
this context.
         Applying the applicable standard here, having
reviewed the record, including the trial court file, the transcript of the hearings, and the briefs on file, we have identified no arguably meritorious issues. Specifically, with
respect to defendant’s arguments raised in the Section B
brief, having reviewed how the parties litigated the matter
on resentencing, we see no arguably meritorious basis for
concluding that defendant’s unpreserved assignments of
error would warrant reversal under the applicable substantive and procedural law.
        Affirmed.