McDonnell v. Premo

• Decision Date: 10 February 2021
• Docket Number: A158967
• Citation: 483 P.3d 640,309 Or.App. 173
• Parties: Michael Martin MCDONNELL Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Oregon Court of Appeals

309 Or.App. 173

483 P.3d 640

Michael Martin MCDONNELL Petitioner-Appellant,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A158967

Court of Appeals of Oregon.

Argued and submitted August 17, 2018.

February 10, 2021

Kenneth A. Kreuscher argued the cause for appellant. Also on the briefs were Mark A. Larranaga and Bert Dupre. Michael M. McDonnell filed the supplemental brief pro se.

Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Petitioner was convicted of aggravated murder in 1988 and sentenced to death. On automatic and direct review, State v. McDonnell , 313 Or. 478, 837 P.2d 941 (1992) ( McDonnell IV ), the Supreme Court upheld petitioner's conviction but vacated the death penalty and remanded for resentencing. After proceedings on remand, the Supreme Court considered petitioner's appeals twice more and ultimately upheld the death-penalty sentence. State v. McDonnell , 343 Or. 557, 176 P.3d 1236 (2007) ( McDonnell VI ), cert. den. , McDonnell v. Oregon , 555 U.S. 904, 129 S. Ct. 235, 172 L. Ed. 2d 180 (2008). In this post-conviction proceeding, petitioner appeals a judgment denying his petition for post-conviction relief, raising 39 assignments of error through counsel and an additional pro se assignment in a supplemental brief. We conclude for the reasons explained in this opinion that the post-conviction court did not err in denying relief, and we therefore affirm.

On November 21, 1984, petitioner walked away from an inmate work crew at the Farm Annex of the Oregon State Prison, where he was serving concurrent sentences for property offenses. On December 22, 1984, petitioner murdered the victim, who had picked him up hitchhiking, by cutting her with a knife. The cause of the victim's death was loss of blood, primarily due to the severing of the victim's neck vessels. The physician who performed the autopsy found 40 knife wounds on the victim's body, including multiple wounds to the chin, neck, hands, chest, and abdomen. McDonnell IV, 313 Or. at 481, 837 P.2d 941. Defendant was charged with the capital offense of aggravated murder under ORS 163.095(2)(f), murder committed after escape from and before return to the custody of a penal or correctional facility. State v. McDonnell , 84 Or. App. 278, 280, 733 P.2d 935 (1987) ( McDonnell I ). Petitioner's defense was that he committed the murder while in a drug-induced psychosis and was unable to form the intent necessary to commit the crime of aggravated murder and that, therefore, he was guilty only of the crime of manslaughter. Id .

The trial court set aside the indictment, concluding that ORS 163.095(2)(f) violated Article I, sections 16 and 20, of the Oregon Constitution, and the Eighth Amendment to the Constitution of the United States, because it imposed an unconstitutional sentence. We reversed that judgment and sent the case back for trial, McDonnell I , and the Supreme Court denied review.

Before trial, the state and defendant engaged in extensive negotiation about a possible plea agreement, which the state ultimately rejected for the reason that the victim's parents insisted that the prosecution seek the death penalty. Also before trial, petitioner filed a motion under ORS 14.250 and ORS 14.260(1)¹ to disqualify Judge Millikan from presiding. In an affidavit, petitioner declared that he believed in good faith that Judge Millikan was prejudiced against his interests, because Judge Millikan had formerly worked with the deputy district attorney prosecuting petitioner's case. Petitioner also stated that he had "been informed of other facts and circumstances which concern[ed him] greatly," but he did not elaborate on those other facts and circumstances. The motion and affidavit did not include any allegation of actual bias and, in granting the motion, Judge Seitz did not make a determination of actual bias. The case proceeded to trial before Judge Seitz.

Petitioner's prosecution came to trial in March 1988, shortly after the Oregon Supreme Court had issued its opinion in State v. Wagner , 305 Or. 115, 160, 752 P.2d 1136 (1988) ( Wagner I ), upholding the constitutionality of former ORS 163.150(1) (1984), under which the sentence for aggravated murder was "death or life imprisonment," as determined by the jury's answers to three questions.² Wagner I held that the statute survived an Eighth Amendment challenge, because the statute did not impermissibly limit a sentencing jury's ability to consider mitigating circumstances.

Petitioner was tried and convicted of aggravated murder and sentenced to death under former ORS 163.150(1) (1984).³

After entry of judgment, on automatic and direct review, the parties agreed to limit review to the question "whether the district attorney based his decision not to enter into the plea agreement on improper considerations and, if so, determining what is the proper remedy for such an erroneous decision." State v. McDonnell , 310 Or. 98, 101, 794 P.2d 780 (1990) ( McDonnell III ).

In McDonnell III , on the state's concession, the court held that the district attorney had violated ORS 135.415, which describes the criteria to be considered in plea negotiations, by allowing the victim's parents to control the decision whether to accept a plea offer, and the court vacated the judgment and remanded the case for an evidentiary hearing to determine how the district attorney would have exercised his discretion under proper criteria and the facts existing at the time. The court described the potential dispositions, depending on the trial court's determination:

"If, after hearing the evidence, the trial court finds that the district attorney would have reached the same decision to proceed with the prosecution of the accused on proper grounds, then the judgment of conviction and sentence of death shall be reinstated and an appeal therefrom may proceed. If, however, the trial court finds that the [district attorney] would have accepted the negotiated plea, then, as the State concedes, the defendant shall be permitted to enter a plea of guilty to the crime of aggravated murder and the trial court shall sentence him to life imprisonment."

Id. at 106-07, 794 P.2d 780. On remand, the trial court determined that the district attorney would have sought the death penalty regardless of the victim's parents’ wishes, and the trial court therefore reinstated the judgment of conviction and death sentence.

In the meantime, in Penry v. Lynaugh , 492 U.S. 302, 109 S. Ct. 2934, 106 L E2d 256 (1989), the United States Supreme Court held that sentencing juries in capital cases must be presented with a specific instruction requiring them to consider mitigation evidence. The United States Supreme Court thus vacated and remanded Wagner I . Wagner v. Oregon , 492 U.S. 914, 109 S. Ct. 3235, 106 L. Ed. 2d 583 (1989).

In State v. Wagner , 309 Or. 5, 7-8, 786 P.2d 93 (1990), cert. den. , 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) ( Wagner II ), the Oregon Supreme Court held that former ORS 163.150(1) (1984) was not "facially unconstitutional" under Penry , because the statutory scheme permitted an instruction directing the jury to consider all relevant mitigation evidence. The court held that, in cases in which a capital sentencing jury had not been instructed "to consider any mitigating aspect of defendant's life * * * not necessarily related causally to the offense" in determining whether the defendant should be sentenced to death, the appropriate remedy was a remand for new penalty-phase proceedings. Id . at 20, 786 P.2d 93.⁴

On automatic and direct review, in McDonnell IV , the Supreme Court upheld the trial court's ruling relating to plea negotiations and also upheld petitioner's conviction for aggravated murder. But, on the state's concession, the court held that the trial court's instructions in the penalty phase were inadequate under Wagner II . 313 Or. at 506-07, 837 P.2d 941.

On remand, the trial court rejected petitioner's request to waive ex post facto objections and sentence petitioner under ORS 163.150(5) (1993), so that he could be considered for a true-life sentence, instead of under ORS 163.150 (1984), which was the statute in effect at the time of the crime. The jury again sentenced petitioner to death.

On petitioner's appeal from the second death-sentence judgment, the Supreme Court held that petitioner had lawfully waived an ex post facto objection to sentencing under ORS 163.150 (1993), and that the trial court had therefore erred in sentencing petitioner under ORS 163.150 (1984). State v. McDonnell , 329 Or. 375, 391, 987 P.2d 486 (1999) ( McDonnell V ).

On remand, the trial court, Judge Seitz, recused herself, as did another judge, and Judge Millikan agreed to retry the penalty phase. No party objected to Millikan presiding despite his having previously been disqualified. The court sentenced petitioner under ORS 163.150(5)(a) (1993), and, for a third time, the jury returned a death sentence. On automatic and direct review, the Supreme Court upheld the sentence. McDonnell VI . The court rejected petitioner's contention that the sentencing judgment was void as a result of Millikan having presided after being disqualified from presiding over the original trial. Rather, the court held, "Millikan's conduct in presiding over defendant's penalty-phase trial was a procedural error to which defendant was required to object in order to preserve the issue for appellate review." 343 Or. at 568, 176 P.3d 1236. The court concluded that the judgment was "voidable" rather than void, and that, because petitioner had failed to raise an objection to Millikan presiding, the issue was not preserved for appellate review. The court further declined to review the issue...