Walton v. Thompson

CourtCourt of Appeals of Oregon
Writing for the CourtHASELTON, P.J.
Citation196 Or. App. 335,102 P.3d 687
PartiesTyrone Earl WALTON, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent.
Decision Date01 December 2004

James N. Varner, Newberg, filed the opening brief. Tyrone Walton filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the brief for respondent. Before HASELTON, Presiding Judge, BREWER, Chief Judge,1 and ORTEGA, Judge.


Petitioner appeals from the trial court's denial of his petition for post-conviction relief, asserting that the trial court erred in its disposition of various claims. We write only to address petitioner's assertion that the trial court erred in rejecting his claim that his consecutive sentences on two counts of aggravated murder were unlawful under State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000). For the reasons that follow, we affirm.

Petitioner was convicted in 1988 of two counts of aggravated murder, one count of felony murder, and one count of robbery and was sentenced to death. Both counts of aggravated murder related to the same victim, but each alleged a different theory of the crime. In State v. Walton, 311 Or. 223, 809 P.2d 81 (1991) (Walton I), the Oregon Supreme Court affirmed petitioner's convictions but vacated the death sentence and remanded the case for a new penalty-phase proceeding. On remand, petitioner's counsel argued that the court lacked authority to impose consecutive sentences on the two counts of aggravated murder "because they involve[d] one victim and one single act." Counsel acknowledged, however, that the case law did not support his position. Petitioner was sentenced to consecutive life sentences with 30-year minimum terms on the two counts of aggravated murder. The court merged the felony murder conviction into one of the aggravated murder convictions but did not merge the robbery conviction.

Petitioner appealed again, making several arguments. First, he argued that the court, on remand, erred in imposing consecutive sentences on the aggravated murder convictions because in Walton I he had challenged the sentence on only one of those convictions.2 We rejected petitioner's premise, noting that the "death sentence applied to both convictions [for] aggravated murder." State v. Walton, 134 Or.App. 66, 71, 894 P.2d 1212, rev. den., 321 Or. 429, 899 P.3d 197 (1995) (Walton II). Petitioner further argued that the court erred in failing to merge his robbery conviction into the aggravated murder conviction that was based on the robbery. We agreed that, under State v. Tucker, 315 Or. 321, 845 P.2d 904 (1993), robbery was a lesser-included offense of the aggravated murder and thus should merge. Walton II, 134 Or.App. at 72-74, 894 P.2d 1212.3 We therefore remanded with instructions to vacate the robbery sentence and to enter an amended judgment merging the robbery conviction with one of the aggravated murder convictions. Id. at 75, 894 P.2d 1212.

On remand, the trial court merged the robbery conviction into one of the aggravated murder convictions and rejected petitioner's attempts to raise other issues, on the ground that the remand was limited to that single issue.

Petitioner did not appeal from the resentencing following the remand in Walton II. Instead, petitioner filed this action for post-conviction relief. Petitioner alleged that trial counsel, as well as appellate counsel involved in Walton I, were inadequate in numerous respects. He also alleged that he was denied a fair trial due to alleged prosecutorial misconduct in the initial proceeding. In his final claim for relief — which is the sole object of our discussion here — petitioner alleged, among other things, that he was denied a fair trial and deprived of numerous constitutional rights on the ground that the trial court in the second and third sentencing proceedings "sentenced petitioner to a sentence not authorized by law." Notably, petitioner did not frame his final claim for relief in terms of whether he received adequate assistance of counsel.

As pertinent to petitioner's final claim for relief — and, particularly, petitioner's allegation that the imposition of consecutive life sentences on the two aggravated murder counts was a sentence "not authorized by law" — the post-conviction court found the following facts:

"34. Petitioner appealed the imposition of consecutive life sentences after they were imposed on [the initial] remand. The Court of Appeals rejected his challenge in [Walton II].
"* * * * *
"53. Petitioner challenged the sentence imposed by the sentencing court on direct appeal. Thus, ORS 138.550(2) bars his claim the court erred in sentencing him. On petitioner's second remand, the sentencing court imposed the same sentence affirmed by the Court of Appeals, with one modification that was beneficial to petitioner.
"* * * * *
"* * * * *
"6. Petitioner's claims against the trial court and sentencing court are barred by the Oregon Supreme Court's opinion in Palmer v. State of Oregon, 318 Or. 352 (1994), or, ORS 138.550(2)."

On appeal, petitioner asserts that the trial court erred in imposing consecutive sentences on the two counts of aggravated murder because, under Barrett, a single conviction and sentence for aggravated murder is appropriate in circumstances such as this, where there is only one victim but the evidence supported multiple theories that aggravated murder had been committed. See Barrett, 331 Or. at 37,

10 P.3d 901. Petitioner further contends that, notwithstanding Palmer, his failure to predicate his challenge to the imposition of the consecutive life sentences on allegations of inadequate assistance of counsel is not conclusive. Rather, petitioner asserts, his post-conviction challenge to the imposition of the consecutive sentences is independently cognizable pursuant to ORS 138.530(1)(c) (post-conviction relief shall be granted where the petitioner establishes, inter alia, that the sentencing court imposed a "[s]entence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted").

We note, at the outset, that, under Barrett's reasoning, the imposition of multiple convictions for two counts of aggravated murder involving a single victim was, in fact, improper. See Barrett, 331 Or. at 37,

10 P.3d 901 (holding that, in those circumstances, the trial court should have "enter[ed] one judgment of conviction reflecting the defendant's guilt on the charge of aggravated murder, which judgment separately would enumerate each of the existing aggravating factors"). It is undisputed that petitioner's convictions are analogous to those at issue in Barrett. That is, had Barrett been the law at the time of petitioner's conviction, only one conviction and sentence would have resulted from the two counts of aggravated murder.4

Given that conclusion, the question is whether the post-conviction court correctly denied petitioner post-conviction relief based on ORS 138.550(2) and Palmer. ORS 138.550(2) provides, in part:

"When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding."

Palmer stands for the basic proposition that, "[w]hen a criminal defendant fails to raise an issue at trial that the defendant reasonably could have been expected to raise, the defendant cannot obtain post-conviction relief" unless he or she demonstrates that the failure to raise the issue falls within one of several "narrowly drawn exceptions." Palmer, 318 Or. at 358, 867 P.2d 1368. Those exceptions include

"`where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. Also, the failure to assert the right would not be a bar where counsel was incompetent or was guilty of bad faith.'"

Id. at 357, 867 P.2d 1368 (quoting North v. Cupp, 254 Or. 451, 456-57, 461 P.2d 271 (1969) cert. den., 397 U.S. 1054, 90 S.Ct. 1396, 25 L.Ed.2d 670 (1970)). While Palmer primarily concerned ORS 138.550(1) and the failure to preserve an issue at the trial level, its rationale applies with equal force to situations such as this, where an issue was preserved at the trial level but was not asserted on direct appeal.

Petitioner advances several arguments as to why ORS 138.550(2) and Palmer do not preclude relief under the circumstances. First, as noted, petitioner argues that Palmer is inapplicable to "unauthorized sentence" claims under ORS 138.530(1)(c). Petitioner notes that we did not decide that issue in Blackledge v. Morrow, 174 Or.App. 566, 571-72, 26 P.3d 851, rev. den., 332 Or. 558, 34 P.3d 1176 (2001), declining to reach it as an alternative basis for affirmance on the ground that it was appropriate for the trial court to decide the issue in the first instance. Petitioner's argument, as we understand it, is that Palmer is inapposite because the claim at issue in Palmer concerned the unconstitutionality of a statute, ORS 138.530(1)(d), and the one here pertains to an allegedly "unauthorized sentence" under ORS 138.530(1)(c). The holding in Palmer was not, however, so circumstantially circumscribed. As noted above, Palmer was based in part on an earlier case, North. In Palmer, the court rejected the notion that the rule of law from North should be limited to claims under ORS 138.530(1)(a) (substantial denial of constitutional rights):

"The governing

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