Garner v. Premo

Decision Date01 February 2017
Docket NumberA154285
Citation389 P.3d 1143,283 Or.App. 494
Parties Anthony Scott GARNER, Petitioner-Appellant Cross-Respondent, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent Cross-Appellant.
CourtOregon Court of Appeals

Ryan T. O'Connor, Portland, argued the cause and filed the briefs for appellant-cross-respondent. With him on the combined reply and answering brief was O'Connor Weber LLP. Anthony Scott Garner filed a supplemental brief pro se.

Peenesh H. Shah argued the cause for respondent-cross-appellant. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.


Petitioner was convicted of two counts of aggravated murder and sentenced to life imprisonment without the possibility of parole. On direct appeal, we reversed the conviction on one of those counts and remanded for entry of a corrected judgment reflecting a conviction on a single count of aggravated murder. State v. Garner , 194 Or.App. 268, 279, 94 P.3d 163, rev. den. , 337 Or. 616, 103 P.3d 639 (2004) (Garner I ). After an unsuccessful appeal from the judgment on remand, petitioner sought post-conviction relief, which the court granted in part and denied in part. Two aspects of that ruling are pertinent here. First, the post-conviction court rejected petitioner's claim that his appellate lawyer in the underlying criminal case performed inadequately by not assigning error to the criminal trial court's mid-trial dismissal of a juror. Second, the post-conviction court granted relief on a different claim of inadequate assistance of appellate counsel, determining that competent counsel would have sought reconsideration of our opinion in Garner I on the ground that we should have remanded the entire case for resentencing, instead of simply remanding for entry of a corrected judgment. Both petitioner and defendant, Superintendent of the Oregon State Penitentiary, have appealed from the resulting post-conviction judgment. For the reasons set out below, we affirm on appeal and on cross-appeal.

The facts are largely undisputed. Petitioner was charged with two counts of aggravated murder for killing a person in 1998. Garner I , 194 Or.App. at 273, 94 P.3d 163. The first count was premised on petitioner having intentionally maimed the victim, resulting in her death. Id .1 The second count was premised on petitioner having caused the victim's death in an effort to conceal evidence of other crimes. Id .2 The case was tried to a jury. At some point during the guilt phase of that trial, a juror, to whom we refer as "Juror B," sent the trial court a note stating that he "kn[e]w [he could] never sentence anyone to death." The court decided to speak with Juror B individually, outside the presence of the remaining jurors. Toward the end of the discussion that followed, Juror B said that he did not "believe that [he] could sentence someone to death"; he had determined during the days leading up to writing the note that he "just personally [did not] think it's for [him] to make that decision." The court excused Juror B and an alternate juror took his place.

The jury convicted defendant of the two charged counts of aggravated murder. The jury declined to impose a death sentence and, instead, voted to impose a sentence of life imprisonment without the possibility of parole. The trial court entered a judgment that did not merge the guilty verdicts on the two aggravated-murder counts, but that purported to merge the counts "[f]or purposes of sentencing." Garner I , 194 Or.App. at 273, 94 P.3d 163.3 On petitioner's direct appeal, we held that the record did not include evidence that petitioner "harbored a separate intent to maim the victim apart from his intent to cause her death," and the trial court therefore erred when it denied petitioner's motion for judgment of acquittal on the first count of aggravated murder. Id. at 279, 94 P.3d 163. We accordingly reversed the conviction on that count and remanded; our opinion included the following disposition:

"Judgment of conviction for aggravated murder on count one reversed; judgment of conviction for aggravated murder on count two affirmed; remanded for entry of corrected judgment; otherwise affirmed."

Id. That opinion issued in July 2004. Id. at 268, 94 P.3d 163. Petitioner petitioned for review in the Oregon Supreme Court, making arguments that are not relevant here. The court denied review. State v. Garner , 337 Or. 616, 103 P.3d 639 (2004).

On remand, petitioner requested a new sentencing hearing on the theory that, absent the conviction based on intentional maiming, "the jury might well have voted to give [him] life instead of life without parole." The trial court denied that request and, in 2005, entered a judgment convicting petitioner of only one count of aggravated murder and again imposing a sentence of "life without parole." On direct appeal from that judgment, petitioner argued that the trial court erred by denying his request for a resentencing hearing because resentencing was required under ORS 138.222(5)(b).4 Indeed, petitioner argued that, upon reversing the first count of aggravated murder in the 2004 appeal, this court "was required to remand the case for re-sentencing." He suggested that this court's tag line in the 2004 opinion—remanding for entry of a corrected judgment—was incorrect because " ORS 138.222(5)(b) * * * clearly directs the court to remand for re-sentencing in such cases." In response, the state asserted, among other things, that petitioner had not sought reconsideration of the tag line in Garner I or petitioned for review regarding the remedy that we had ordered in that case. Accordingly, the state argued, petitioner's complaint about the limited remedy was barred by preclusion principles. Moreover, the state argued, the trial court could not err on remand by carrying out what this court had ordered in Garner I . This court affirmed the 2005 judgment on remand without opinion, and the Supreme Court again denied review. State v. Garner , 214 Or.App. 571, 166 P.3d 606, rev. den. , 343 Or. 467, 172 P.3d 249 (2007).

Petitioner then initiated this post-conviction proceeding. In his second amended petition for post-conviction relief, he asserted several claims, only two of which are pertinent here. First, petitioner claimed that he was denied adequate assistance of appellate counsel in Garner I because his appellate lawyers did not "assign as legal error and present sufficient arguments regarding the wrongful dismissal" of Juror B from the jury in the aggravated-murder trial. Second, petitioner claimed that he was denied adequate assistance of appellate counsel, again in Garner I , because his appellate lawyers did not "[f]ile a timely motion for reconsideration and request a remand for resentencing."

In a memorandum opinion, the post-conviction court granted petitioner's petition in part and denied it in part. As pertinent here, the court rejected petitioner's claim related to his appellate lawyers' failure to assign error to the mid-trial dismissal of Juror B. The court ruled that "the judge's decision to replace the juror was correct" because the juror's "inability to sentence someone to death would substantially impair him in performance of his duties as a juror in the case." Accordingly, the court concluded, petitioner's appellate lawyers "did not err by failing to assign the dismissal of [Juror B] from the jury" as error in Garner I .

The post-conviction court granted relief, however, on petitioner's claim that his appellate lawyers were inadequate for having failed to file a petition for reconsideration in Garner I seeking a remand for resentencing, instead of (as we had ordered) remand for entry of a corrected judgment—one that would retain the originally imposed sentence of life imprisonment without parole. The court concluded on the basis of ORS 138.222(5) (2003) that "petitioner was entitled to a resentencing proceeding before a jury upon remand from the Court of Appeals"—a hearing at which his lawyer could advocate for a sentence of life with the possibility of parole, as the state would not have been "able to argue that petitioner should receive true life * * * because he had maimed the victim."

The court subsequently entered findings of fact and conclusions of law consistent with its memorandum opinion. With respect to the claim that petitioner's appellate lawyers should have advocated for a resentencing hearing, the court stated:

"A competent appellate attorney would have moved the Oregon Court of Appeals for reconsideration of [its] decision remanding Petitioner's case for entry of a ‘corrected judgment.’ If this had occurred, it is more probable than not that the result of the proceedings would have been different. Petitioner is entitled to remand to the Clatsop County Circuit Court for a resentencing proceeding before a jury."

The court granted relief under both the state and the federal constitutions on that claim. It entered a general judgment that ordered a new "sentencing proceeding before a jury" and otherwise denied the petition for post-conviction relief.

Petitioner appeals from that judgment and the superintendent cross-appeals. We review the post-conviction court's grant or denial of relief for legal error. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). We are bound by the post-conviction court's factual findings if they are supported by evidence in the record. Everett v. Premo , 279 Or.App. 470, 477, 380 P.3d 1099 (2016).

We begin by addressing petitioner's appeal, in which he argues that the post-conviction court erred by denying his claim "that he was deprived of his state and federal constitutional rights to adequate assistance of appellate counsel when his appellate counsel failed to assign error to the trial court's excusal of [Juror B] from the jury during the guilt phase of...

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3 cases
  • Lizarraga-Regalado v. Premo
    • United States
    • Oregon Court of Appeals
    • 1 March 2017
    ...governing post-conviction relief and the procedural requisites and constraints of summary judgment. Very recently in Garner v. Premo , 283 Or.App. 494, 389 P.3d 1143 (2017), we summarized the "settled legal principles" pertaining to post-conviction relief claims based on purported deficient......
  • Antoine v. Taylor
    • United States
    • Oregon Court of Appeals
    • 15 April 2020
    ...[the] issue [were] so obvious that any lawyer exercising reasonable professional skill and judgment would do so.’ " Garner v. Premo , 283 Or. App. 494, 507, 389 P.3d 1143, rev. den. , 361 Or. 885, 403 P.3d 768, 772 (2017) (quoting Ross v. Hill , 235 Or. App. 340, 344, 231 P.3d 1185, rev. de......
  • Harbert v. Franke
    • United States
    • Oregon Court of Appeals
    • 15 March 2017 exercise reasonable professional skill and judgment," and "that petitioner suffered prejudice as a result." Garner v. Premo , 283 Or.App. 494, 501, 389 P.3d 1143 (2017) (internal quotation marks omitted).With respect to a claim that appellate counsel failed to exercise reasonable profess......

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