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Delzell v. Coursey

Court of Appeals of Oregon

September 25, 2013

JOEL EUGENE DELZELL, Petitioner-Appellant,
v.
RICK COURSEY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

Submitted on June 07, 2013.

Umatilla County Circuit Court No. CV120716 Christopher R. Brauer, Judge.

Joel Eugene Delzell filed the brief pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

PER CURIAM

Petitioner appeals a judgment dismissing his petition for post-conviction relief, arguing that the court erred in dismissing his petition without first ruling on his motion to appoint counsel. The state concedes that the court should have ruled on petitioner's motion to appoint counsel before dismissing the petition.

Despite the state's concession of error, we dismiss petitioner's appeal because, under ORS 138.525(3), "a judgment dismissing a meritless petition is not appealable." See Young v. Hill, 347 Or 165, 218 P.3d 125 (2009) (dismissal of petition as meritless is not appealable under ORS 138.525(3)); Pedroso v. Nooth, 251 Or.App. 688, 284 P.3d 1207 (2012), rev den, 353 Or 203 (2013) (same). In this case, the court checked a box on the judgment that provided, "Per ORS 138.525, the Petition is dismissed as meritless, and this judgment is therefore not appealable." Because the petition was dismissed as meritless, the judgment was not appealable. ORS 138.525(3).

Appeal dismissed.


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