Montez v. Czerniak
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598 June 12, 2014 No. 41 IN THE SUPREME COURT OF THE STATE OF OREGON MARCO ANTONIO MONTEZ, Petitioner on Review, v. Stanley CZERNIAK, Superintendent, Oregon State Penitentiary, Respondent on Review. (CC 97C12376; CA A130258; SC S059138) On petitioner on review s petition for reconsideration filed April 22, 2014. Daniel J. Casey, Portland, filed the petition for reconsideration. No appearance contra. Before Balmer, Chief Justice, Walters and Baldwin, Justices, and Riggs and Durham, Senior Judges, Justices pro tempore.** PER CURIAM The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified. Petitioner sought reconsideration of the former opinion of the Court in a post-conviction matter, taking exception to the Court s holdings regarding the disclosure of petitioner s previous death sentence at his penalty phase retrial, as well as various aspects of the Court s analysis concerning omitted expert mitigation evidence. With regard to those arguments, the court affirmed its previous decision without further discussion. Petitioner had correctly noted, however, that the Court s opinion misidentified Kenneth McPhail as the inmate witness who testified on petitioner s behalf at the Multnomah County Circuit Court. That identification was incorrect; the record showed that the inmate who testified in Multnomah County was, in fact, Michael McDonnell. Held: The petition for reconsideration is allowed. The former opinion is modified to correct that error and adhered to as modified. ______________ ** Appeal from Marion County Circuit Court, Don Dickey, Judge. 237 Or App 276, 239 P3d 1023 (2010). ** Kistler, Linder, Landau, and Brewer, JJ., did not participate in the consideration or decision of this case. Cite as 355 Or 598 (2014) 599 PER CURIAM Petitioner seeks reconsideration of this court s decision in Montez v. Czerniak, 355 Or 1, 322 P3d 487 (2014), a post-conviction relief case in which we affirmed both the Court of Appeals decision and the post-conviction judgment below. In seeking reconsideration, petitioner takes exception to our holding as to the disclosure of petitioner s previous death sentence at his penalty phase retrial, as well as various aspects of our analysis regarding omitted expert mitigation evidence. With regard to those arguments, we affirm our previous decision without further discussion. Petitioner has correctly noted, however, that our opinion misidentified Kenneth McPhail as an inmate witness who testified on petitioner s behalf at the Multnomah County Circuit Court. See Montez v. Czerniak, 355 Or at 29 n 8 ( Eight inmates testified for petitioner and all did so at the penitentiary except for Kenneth McPhail, whose testimony was taken at the Multnomah County Circuit Court. ) That identification was incorrect; the record shows that the inmate who testified in Multnomah County Circuit Court was, in fact, Michael McDonnell. Accordingly, we allow this petition for reconsideration and modify our decision to correct that error. The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.
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