DONALD ALLEN GOSNEY v. MILLER (2026)

Petitioner appeals a judgment granting his petition for post-conviction relief from one count of conviction and amending the judgment in petitioner's criminal case to vacate the conviction on that count and dismiss the charge. Petitioner contends that that remedy was inadequate and that the post-conviction court should have remanded the case to the criminal court for resentencing. We affirm.

Petitioner was convicted after a jury trial of 46 criminal counts relating to his sexual abuse of a single victim over many weeks. He received an aggregate sentence of 1100 months. Petitioner sought relief for one count of conviction on which the jury's verdict was nonunanimous, and the state did not contest that petitioner was entitled to relief from that conviction. To remedy the situation, the post-conviction court entered a judgment amending petitioner's criminal case to vacate and dismiss the challenged count. Petitioner assigns error to that remedial decision, contending that the court abused its discretion by not remanding to the criminal court for resentencing.

We review the post-conviction court's choice of remedy for legal error. Brock v. Baldwin, 171 Or App 188, 190, 14 P3d 651 (2000), rev den, 332 Or 56 (2001). Where the post-conviction court acted within the scope of authority granted by statute, we review for abuse of discretion. See id. at 195-97. “An abuse of discretion occurs when a court exercises its discretion to an end not justified by and clearly against the evidence and reason.” Lutz v. State, 130 Or App 278, 285, 881 P2d 171 (1994). A trial court acts outside its discretion “if its decision is based on predicate legal conclusions that are erroneous or predicate factual determinations that lack sufficient evidentiary support.” Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 117, 376 P3d 960 (2016). We accept the post-conviction court's explicit and implicit findings of fact if there is evidence in the record to support them. Rudnitskyy v. State, 303 Or App 549, 550, 464 P3d 471 (2020).

ORS 138.520 governs a post-conviction court's remedial authority. It provides that a post-conviction court “may grant or order” relief that “shall include release, new trial, modification of sentence, and such other relief as may be proper and just.” We have held that ORS 138.520 “vests post-conviction courts with the discretion to grant relief beyond the specific remedies mentioned in the statute,” and that “a post-conviction court has broad discretion in selecting relief that will fulfill the remedial purpose of the post-conviction statutes.” Brock, 171 Or App at 195-96. That broad authority extends to “fashion[ing] a remedy to correct the actual prejudice suffered by a criminal defendant.” Hinton v. Hill, 342 Or 222, 231, 149 P3d 1205 (2006). Where the disposition of the post-conviction court is sufficient to remedy actual prejudice, it is not our role to furnish a “more complete remedy.” Id. We also have explained that post-conviction remedies need not match the remedies available in the context of direct appeal; rather, the charge of a post-conviction court is to craft a remedy that is “proper and just” under the circumstances of the case. See State v. Henderson, 146 Or App 81, 84, 932 P2d 577 (1997) (petitioner for post-conviction relief could not obtain the “blank slate on sentencing issues” he would have received on direct appeal, but only the relief deemed “proper and just” by the post-conviction court under ORS 138.520).

Here, the remedy crafted by the post-conviction court is sufficient because it addresses the actual prejudice suffered by petitioner from the nonunanimous verdict on one count. That actual prejudice does not extend to his entire sentence, because the sentence for the challenged count runs concurrently with sentences imposed on other counts unaffected by the post-conviction proceedings, and the overall length of his sentence is the result of still other unaffected counts for which he received consecutive terms. Because the post-conviction court fashioned a remedy sufficient to correct actual prejudice, it acted within its authority. The post-conviction court set forth on the record the reason why it considered resentencing unnecessary, specifically that removing the sentence for the one challenged count would not alter the overall sentence. The court's decision is justified by, and does not run counter to, the facts of the case, and does not rest on any legal or factual error.

Arguing to the contrary, petitioner contends that because he would have been entitled to a resentencing on his entire sentencing “package” if he had brought this issue on direct appeal, ORS 138.257(4)(a)(A), the post-conviction court should be required to provide the same remedy under ORS 138.520. To the extent petitioner's argument suggests that the post-conviction court was required to provide the same remedial relief available in a direct appeal, that argument is foreclosed by Henderson, 146 Or App at 84. To the extent petitioner's argument is that the availability of a different remedy on direct appeal means that the post-conviction court's selection of remedy here was not “proper and just,” we have already explained why the post-conviction court's remedy satisfies that standard as construed by our case law.

In sum, because the post-conviction court fashioned a remedy that was sufficient to address the actual prejudice suffered by petitioner, it did not err by not remanding petitioner's case for resentencing.

Affirmed.

LAGESEN, C. J.