Wasilla murderer asks judge for chance to appeal

PALMER -- A Palmer Superior Court judge is being asked to decide whether a Wasilla man convicted of first-degree murder should be allowed to appeal his conviction after the Alaska Court of Appeals rejected a late-filed notice.

Garrett Osborn, 20, was found guilty of first-degree murder and evidence tampering after a jury trial in February 2000. On July 10, 2000, he was sentenced to 72 years for helping two others in the beating death of Wesley "Beanie" Morton in Wasilla's Wonderland Park in February 1998.

Osborn's new attorney, Dan Bair, this November filed a civil motion for post-conviction relief, asking Palmer Superior Court Judge Eric Smith to review the case and allow him to present evidence showing grounds for appealing. A hearing is scheduled for Jan. 22.

The court filed Osborn's sentence judgment on July 31, 2000, and Osborn's defense attorneys had 30 days from that date to file a notice of appeal. It is standard to file notices of appeal in murder conviction cases, in an attempt to make sure the case was handled correctly, said District Attorney Roman Kalytiak.

Osborn's attorneys, Greg Heath and George Davenport with the Public Defender Agency, argued in their response that the 30-day deadline came and went during an extremely busy time for that agency. The Palmer Public Defender Agency handles 2,500 cases a year, distributed among just seven attorneys. Two murder cases after Osborn's made case load especially hectic, since the cases had to be reassigned when Robert Hertz, the head of the agency, resigned to go into private practice.

The Public Defender Agency wrote a notice of appeal 68 days late, explaining why they were past the deadline. District Attorney Kalytiak also responded, saying it should not have taken Heath and Davenport that long to file a fairly straight-forward notice.

The Court of Appeals responded Nov. 22, 2000, saying that attorneys failed to show "good cause" for filing late.

"Osborn's attorneys are also claiming that it was impossible for any of their associates within the Public Defender Agency to prepare these documents for them. These are not credible," the court said.

Two pending points made in the post conviction relief ask the judge to decide that a direct appeal is within Osborn's rights and that Osborn's attorneys' failure to file in timely manner constitutes ineffectiveness of council.

Judge Smith presided over Osborn's trial and sentencing, calling the Wesley Morton murder "horrifying."

Osborn was 17 years old when he helped kill Morton, 42. Osborn will have to spend at least 24 years in prison before he becomes eligible for parole. He is currently incarcerated in the Spring Creek Correctional in Seward.

Osborn, along with Jonathan Walker, 18, and Michael McWaters, 21, beat an intoxicated Morton unconscious, crushed his chest, broke his leg, stabbed him, and carved initials into his leg before they left him to die in the children's park.

Jonathan Walker was sentenced to 70 years in prison in January 2000 after pleading guilty to first-degree murder in a plea agreement with the state. McWaters, Osborn's half-brother, played a lesser role in the incident, according to testimony, and was sentenced to 15 years for manslaughter. Osborn was the only one to stand jury trial.

Defense attorneys Davenport and Heath said their client did not deserve the same sentence as Walker because Osborn's actions did not cause Morton's death.

"We believe if Mr. Walker hadn't been there, this never would have happened," Heath said. "The level of violence in the case for Osborn is not the same as Walker."

Walker apparently admitted to police that he stabbed Morton in the attack.

The defense attorneys requested Osborn receive 40 to 45 years in prison for his crime.

But James Morton Sr. described the horror of looking at the pictures of his son after he was beaten to death.

"You cannot know how I feel when you look at all these pictures and the evidence. Then you close your eyes and think, 'Oh my God, that is my son,'" Morton said.

Morton argued Osborn deserved the death penalty for what he did to his son.

In the appeal process, Osborn's attorney is asking that aspects of the trial be reexamined, such as that the defense failed to call certain essential witnesses and that they failed to cross-examine McWaters on inconsistent testimony, according to court documents.