Full Opinion

No. 1058 October 28, 2026 329 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 ERASMO ELI TISTOJ-LOPEZ, Petitioner-Appellant, v. David PEDRO, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent. Umatilla County Circuit Court 23CV35034; A187064 J. Burdette Pratt, Senior Judge. Submitted October 7, 2026. Jedediah Peterson and Equal Justice Law filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent. Before Kamins, Presiding Judge, Lagesen, Chief Judge, and Pagán, Judge. PER CURIAM Affirmed. 330 Tistoj-Lopez v. Pedro PER CURIAM Petitioner appeals from a judgment denying post- conviction relief. In a single assignment of error, he argues that the court erred in denying as untimely his motion to replace, or instruct, court-appointed counsel pursuant to Church v. Gladden, 244 Or 308, 311-12, 417 P2d 993 (1966). Reviewing for abuse of discretion, see Walls v. Fhuere, 334 Or App 1, 7, 555 P3d 354, rev den, 373 Or 121 (2024) (apply- ing standard), we affirm. The trial court did not abuse its discretion in deny- ing petitioner’s Church motion as untimely. As petitioner acknowledges, he filed his Church motion 11 days after the deadline contained in the post-conviction court’s scheduling order. Despite the deadline, petitioner argues that the post- conviction court was required to provide him an opportu- nity to be heard on the timeliness of the motion. He does not, however, identify how he was precluded from making arguments urging the court to accept a late submission or requesting a continuance in his Church motion or in another accompanying motion. Petitioner also argues that the defen- dant would not have been prejudiced by allowing a late motion. Although the lack of prejudice may support a conclu- sion that the post-conviction court could have acted within its discretion to allow the untimely motion, it does not sup- port the inverse—that the post-conviction court lacked the discretion to deny it. See Davison and Schafer, 308 Or App 513, 518, 479 P3d 1108 (2021) (reversal required “only if the trial court’s discretionary determination was not a legally permissible one” (internal quotation marks omitted)). Affirmed.