State v. Shelby ( 2024 )

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This is a nonprecedential memorandum opinion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Nonprecedential Memo Op: 335 Or App 756 (2024) 757
LAGESEN, C. J.
After a jury trial, defendant was convicted of mul-
tiple 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, 317 Or App 647, 648-49, 505 P3d
482 (2022). We also reversed and remanded for merger of
two counts. Id. 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 resen-
tencing hearing, the trial court sentenced defendant to a
total of 721 months in prison.
Defendant’s appointed counsel filed a brief pur-
suant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814
P2d 1069 (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 mer-
itorious 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) (decid-
ing 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).