Lutcavich v. Pedro

Summary

The Oregon Court of Appeals affirmed the denial of post-conviction relief to a petitioner convicted of two counts of second-degree rape. Applying the standard governing Balfour submissions, the court concluded that the record disclosed no arguably meritorious issues, including claims concerning post-conviction counsel's performance and alleged trial-counsel deficiencies.

Holdings

1. In reviewing a Balfour submission, the court determines whether the record, rather than the briefing, discloses any arguably meritorious issue requiring supplemental briefing.
2. Alleged deficient performance by post-conviction counsel is not itself a ground for post-conviction relief under ORS 138.530(1)(a).
3. Because petitioner did not bring his complaint about post-conviction counsel's failure to raise a ground for relief before the post-conviction court through a Church motion, the record presented no arguably meritorious issue concerning whether the court should have directed counsel to act.
4. The remaining claims did not present arguably meritorious issues because they were not supported by the record.

Questions Presented

1. What standard governs appellate review of a Balfour brief and whether the record disclosed any arguably meritorious issue requiring supplemental briefing.
2. Whether alleged deficient performance by post-conviction counsel constituted a ground for post-conviction relief.
3. Whether petitioner's remaining claims presented arguably meritorious issues when they were not supported by the record.

Disposition

affirmed