Garner v. Premo, 389 P.3d 1143

Petitioner was convicted of two aggravated-murder counts (different theories) in 1998; jury imposed life without parole. One count (intentional maiming theory) was reversed on direct appeal in Garner I and the court remanded "for entry of corrected judgment," leaving the life-without-parole sentence intact.
On remand the trial court declined to hold a new sentencing; petitioner’s direct appeal from the corrected judgment failed.
Petitioner then filed a post-conviction petition alleging two relevant ineffective-assistance-of-appellate-counsel claims in Garner I: (1) failure to assign error to the trial court’s mid-trial excusal of a juror (Juror B) who said he could not impose death; and (2) failure to file a timely reconsideration petition seeking remand for resentencing rather than mere entry of a corrected judgment.
The post-conviction court denied relief on the Juror B claim (finding excusal proper because Juror B stated he could not sentence anyone to death) and granted relief on the reconsideration/resentencing claim, concluding a competent appellate lawyer would have sought reconsideration under ORS 138.222(5) and that resentencing before a jury was warranted.
Both parties appealed the post-conviction judgment; the Court of Appeals affirmed—denying relief on the juror-excusal claim and sustaining the post-conviction court’s conclusion that appellate counsel should have sought reconsideration to obtain remand for resentencing.

Issue	Plaintiff's Argument (Garner)	Defendant's Argument (Superintendent)	Held
Whether appellate counsel was ineffective for not assigning error to mid-trial excusal of Juror B	Juror B only expressed uncertainty about imposing death; excusal was improper and a reasonable appellate lawyer would have challenged it	Trial court properly excused a juror who stated he could not impose death; removal reviewed for abuse of discretion	Denied: excusal was within trial court discretion; counsel not ineffective because any challenge would have failed
Whether appellate counsel was ineffective for not seeking reconsideration asking remand for resentencing under ORS 138.222(5)	A reasonable appellate lawyer would have sought reconsideration because reversal of one conviction could have affected the original sentence; resentencing should follow	At the time (2004) case law did not clearly require resentencing for non-guidelines life sentences; counsel could reasonably decline to seek reconsideration	Granted: competent counsel would have sought reconsideration; Rodvelt, Sanders, Randant made resentencing obvious; petitioner entitled to resentencing remand

State v. Turnidge, 359 Or 364 (Sup. Ct.) (death-penalty views disqualify juror only if they would prevent or substantially impair performance)
State v. Lotches, 331 Or 455 (Sup. Ct.) (trial court’s juror-qualification decisions entitled to great weight)
Guinn v. Cupp, 304 Or 488 (Sup. Ct.) (standards for post-conviction claims of inadequate appellate assistance)
State v. Rodvelt, 187 Or App 128 (Or. Ct. App.) (reversal of some convictions can require remand for resentencing under ORS 138.222(5))
State v. Sanders, 185 Or App 125 (Or. Ct. App.) (on reconsideration held remand for resentencing required when convictions reversed/merged)
State v. Randant, 192 Or App 668 (Or. Ct. App.) (remanded for merger and resentencing; panel and reconsideration opinions reinforced Rodvelt rule)
State v. Hale, 335 Or 612 (Sup. Ct.) (did not remand for resentencing after reversing some aggravated-murder convictions; decisions don’t show the issue was argued)