Background
Warren Alexander Rich was convicted after a jury trial of attempted aggravated murder with a firearm, attempted first-degree assault with a firearm, multiple burglary offenses, unlawful use of a weapon, felon in possession of a firearm, and second-degree criminal mischief. He received a total sentence of 150 months’ imprisonment.
Rich later sought post-conviction relief, alleging that trial counsel failed to provide and review his recorded police interview, should have objected to the recording’s admission, and conceded guilt on certain charges over his objection. Counsel submitted a declaration stating that she reviewed the recording with Rich, had no basis to object to its use, discussed the strategy of avoiding conviction on the two most serious charges, and conceded only conduct that Rich agreed he had committed. The post-conviction court credited counsel’s declaration, found Rich not credible, and denied relief.
The Court’s Holding
Rich’s appointed appellate counsel filed a brief under ORAP 5.90 and State v. Balfour that did not include a Section B identifying any issue Rich wished to raise. After reviewing the record, the post-conviction court file, the hearing transcripts, and the Balfour brief, the Court of Appeals found no arguably meritorious issue.
The court explained that it was bound by the post-conviction court’s factual findings when supported by evidence and by its credibility determination concerning Rich. It therefore affirmed the judgment denying post-conviction relief.
Key Takeaways
- The Court of Appeals independently reviewed the record after appointed counsel filed a Balfour brief without a Section B and found no arguably meritorious appellate issue.
- Evidence in trial counsel’s declaration supported the findings that counsel reviewed the police recording with Rich, reasonably declined to object to it, and pursued a strategy that Rich had approved.
- The appellate court was bound by the supported factual findings and credibility determinations of the post-conviction court.
Why It Matters
The decision illustrates the difficulty of overturning a post-conviction judgment when the disputed claims depend on credibility and the record supports the post-conviction court’s findings. It also shows the Oregon Court of Appeals’ review process when appointed counsel submits a Balfour brief identifying no meritorious claim.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may not be cited except as permitted by ORAP 10.30(1).