Background
After a jury trial, Jose Luis Berumen-Carlos was convicted of two counts of unlawful use of a weapon with a firearm, two counts of recklessly endangering another person, unlawful use of a global positioning system device, unlawful use of a vehicle, felon in possession of a firearm, and two counts of first-degree theft. He received a 164-month prison sentence.
Berumen-Carlos sought post-conviction relief, alleging that trial counsel failed to advise him adequately about his maximum sentencing exposure when discussing plea offers and failed to move to suppress evidence obtained from his phone. The post-conviction court credited counsel’s declaration that she had explained the possible sentences, consecutive sentencing, enhancement factors, and the advantages and disadvantages of trial. Counsel also stated that she considered a suppression motion but concluded it lacked a reasonable likelihood of success and chose to focus on trial preparation.
The post-conviction court denied both claims. On appeal, appointed counsel filed a brief under ORAP 5.90 and State v. Balfour that contained no Section B identifying issues for review.
The Court’s Holding
The Oregon Court of Appeals affirmed the judgment denying post-conviction relief. After reviewing the record, the post-conviction court file, the hearing transcripts, and the Balfour brief, the court found no arguably meritorious issue.
The record supported the finding that trial counsel fully discussed the possible trial outcomes, sentencing exposure, and benefits of the state’s plea offers. Berumen-Carlos also failed to prove that counsel acted unreasonably by declining to seek suppression of the phone evidence or that the proposed motion likely would have succeeded.
Key Takeaways
- The court found no arguably meritorious basis to challenge the denial of post-conviction relief.
- Evidence that counsel explained maximum penalties, consecutive sentencing, enhancement factors, and plea benefits supported rejection of the inadequate-advice claim.
- A petitioner challenging counsel’s failure to file a suppression motion must establish deficient performance and that the proposed motion likely would have succeeded.
Why It Matters
The decision illustrates the evidentiary burden facing post-conviction petitioners who challenge counsel’s plea advice or strategic decision not to file a suppression motion. Credibility findings supported by the record bind the appellate court, and speculation that an unfiled motion might have succeeded is insufficient to establish prejudice.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may not be cited except as that rule permits.