Date: 03-18-2015

Case Style: Martin Allen Johnson v. Jeff Premo

Case Number: A150451

Judge: Haselton

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Jason Weber argued the cause and filed the brief for
appellant. Martin Allen Johnson filed the supplemental
brief pro se.

Defendant's Attorney: Jeremy C. Rice, Assistant Attorney General, argued the
cause for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
General.

Description: Petitioner seeks reversal of a judgment denying his
claims for post-conviction relief relating to his convictions
for various sex offenses in Multnomah County. Petitioner’s
claims pertain to the alleged inadequate assistance of counsel
by his multiple trial attorneys and his appellate counsel,
including the alleged waiver of his speedy trial rights
without his consent and the alleged failure, in the context
of his conditional guilty plea, to ensure that various pretrial
rulings could be reviewed on appeal pursuant to ORS
135.335(3). We affirm.
The circumstances material to our analysis and disposition
are uncontroverted. In early 1998, after petitioner
became aware that he was the target of a Washington County
homicide investigation, he fled the state. Shortly thereafter,
authorities learned that petitioner may have committed sexual
offenses in Multnomah County. Consequently, on May 8,
1998, petitioner was indicted in Multnomah County for one
count of rape in the first degree, ORS 163.375, one count of
sexual abuse in the first degree, ORS 163.427, five counts
of rape in the third degree, ORS 163.355, three counts of
sodomy in the third degree, ORS 163.385, and two counts of
using a child in a display of sexually explicit conduct, ORS
163.670.1
Meanwhile, the Washington County homicide investigation
had continued, ultimately leading to an indictment
against petitioner in that county on a charge of aggravated
murder. Petitioner eventually was apprehended in Florida.
On March 4, 1999, the authorities returned petitioner
to Oregon to face trial on the Washington County aggravated
murder charge, and petitioner was lodged in jail in
Washington County.
On December 19, 2000, petitioner filed a speedy trial
notice in Multnomah County, asserting that he first became
1 Roughly a month before the Multnomah County indictment, petitioner had
been indicted for sexual offenses in Clackamas County. The Clackamas County
prosecution was the subject of State v. Johnson, 339 Or 69, 116 P3d 879 (2005),
in which the Oregon Supreme Court reversed petitioner’s convictions, concluding
that the trial court had erroneously denied his statutory speedy trial motion
to dismiss, pursuant to former ORS 135.747 (2011), repealed by Or Laws 2013,
ch 431, § 1.
Cite as 269 Or App 686 (2015) 689
aware of the Multnomah County charges in October 2000.
On January 10, 2001, he was arraigned on the Multnomah
County charges.
On January 12, 2001, Hart was appointed as petitioner’s
counsel on the Multnomah County charges, and, on
February 1, Hart filed a 60-day speedy trial waiver2 and a
90-day speedy trial waiver3 on petitioner’s behalf. Petitioner
signed both of the waivers. Soon thereafter, petitioner tried
to contact Hart with instructions to withdraw his waivers.
Whether Hart was aware of those instructions at the time is
unknown,4 but Hart withdrew as counsel of record in March
2001, and another attorney in Hart’s law office, Kohlmetz,
became petitioner’s counsel.
Kohlmetz and petitioner’s counsel on the still-pending
Washington County charges, Peters, conferred about continuing
the Multnomah County case until the Washington
County case had been concluded. Kohlmetz stated that he
was informed “that all parties were working towards a universal
resolution of all pending charges against [petitioner],
and * * * that it would be to [petitioner’s] benefit to litigate
the [Washington County case] first.” Although Kohlmetz
2 ORS 136.290 provides:
“(1) Except as provided in ORS 136.295, a defendant shall not remain
in custody pending commencement of the trial of the defendant more than
60 days after the time of arrest unless the trial is continued with the express
consent of the defendant. Absent the consent of the defendant or an extension
under ORS 136.295, the court shall order that the trial of the defendant commence
within 60 days after arrest if the state is prepared to proceed to trial.
“(2) If a trial is not commenced within the period required by subsection (1)
of this section, the court shall release the defendant on the own recognizance
of the defendant, or in the custody of a third party, or upon whatever additional
reasonable terms and conditions the court deems just as provided in
ORS 135.230 to 135.290.”
3 ORS 135.763 provides:
“(1) The district attorney, after receiving a notice requesting trial under
ORS 135.760, shall, within 90 days of receipt of the notice, bring the inmate
to trial upon the pending charge.
“(2) The court shall grant any reasonable continuance with the consent
of the defendant. Notwithstanding the defendant’s lack of consent, the court
may grant a continuance on motion of the district attorney or on its own
motion, for good cause shown. The fact of imprisonment is not good cause for
the purposes of this subsection.”
4 Neither the criminal trial court nor the post-conviction court rendered a
finding on that matter.
690 Johnson v. Premo
had not personally met with petitioner, he understood from
his conversations with Hart and Peters that petitioner had
agreed to a postponement of the Multnomah County case
until the Washington County case was resolved.5
After Kohlmetz withdrew as counsel in July
2001, the court appointed Ludwig to represent petitioner.
Thereafter, except for the period between October 2001 and
May 2002, when petitioner represented himself, Ludwig
acted as petitioner’s Multnomah County trial counsel.
During the period in which he represented himself,
petitioner filed over 140 motions with the court,6 one
of which was a motion to dismiss the charges for violation
of petitioner’s statutory speedy trial rights pursuant
to former ORS 135.747 (2011), repealed by Or Laws 2013,
ch 431, § 1, and his state and federal constitutional rights
to speedy trial.7 In May 2002, the court held an omnibus
hearing on many of the motions, including the speedy trial
5 There is conflicting evidence regarding petitioner’s agreement to the delay.
Although two of petitioner’s trial attorneys testified that petitioner was aware of
the reasons for delaying the Multnomah County case and was in “full agreement”
with resolving the Washington County case first, there is also evidence that petitioner
objected to the speedy trial waivers. In making its factual findings, the
post-conviction court did not resolve which evidence was more credible.
6 The criminal trial court stated that petitioner had filed more than 140
motions. Some of the motions were handwritten and some were typed. The trial
court, in fact, denied some of petitioner’s motions on the ground that they were
incomprehensible. In ruling on a motion to suppress, for example, the trial court
stated:
“I am unable to determine whether there was a search or whether there were
any items seized that are going to be used by the State in this case. It is so
generic in its description. * * * I’m simply unable to determine what it is that
you are seeking to suppress.”
The trial court described some of petitioner’s motions as “captur[ing] sundry comments
from case law[, but having] absolutely no bearing on [petitioner’s case.]”
The trial court also noted that some of petitioner’s motions were “simply downloaded
forms that [petitioner had] accessed through a computer * * * and which
have no applicability to [petitioner’s] case.”
7 Former ORS 135.747 provided that an accusatory instrument must be dismissed
if it is not “brought to trial within a reasonable time” unless the trial
has been “postponed upon the application of the defendant or by consent of the
defendant.”
Article I, section 10, of the Oregon Constitution provides that “justice shall
be administered * * * without delay.” The Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.”
Cite as 269 Or App 686 (2015) 691
motion.8 Petitioner presented evidence and arguments on
the motions; more than one day was spent on the speedy
trial motion alone. The trial court concluded that petitioner
had not been denied his statutory or constitutional rights to
a speedy trial and denied his motion to dismiss. The trial
court eventually denied all of petitioner’s other motions as
well, except for his motion, added near the end of the hearing,
to reappoint Ludwig as his attorney.
On the day of petitioner’s trial, petitioner asked the
trial court to remove Ludwig as his attorney, because, among
other things, he did not trust her to follow his requests.
Petitioner stated, “I’ve had problems trusting attorneys and
getting attorneys to file motions[.]” The trial court denied
his motion.
Thereafter, petitioner, Ludwig, and the prosecutor
discussed resolving the case through a plea agreement.
The state offered petitioner two separate plea agreements.
Under the first, petitioner could enter a conditional plea of
“no contest” and reserve his right to appeal his pretrial rulings
pursuant to ORS 135.335(3), which provides:
“With the consent of the court and the state, a defendant
may enter a conditional plea of guilty or no contest reserving,
in writing, the right, on appeal from the judgment, to a
review of an adverse determination of any specified pretrial
motion. A defendant who finally prevails on appeal may
withdraw the plea.”
(Emphasis added.) Under the second option, petitioner would
simply enter a plea of no contest, ORS 135.335(2).9 The former
choice included a longer prison sentence than the latter.
Petitioner agreed to enter the conditional plea, and signed
8 The trial court separated the types of motions into several broad categories:
“motions against the indictment, motions to dismiss, motions to dismiss
that relate specifically to his assertion that he has been denied a speedy trial,
motions for discovery and/or access[,] * * * [m]otions to suppress, motions in
limine, motions to sever the charges, and a number of miscellaneous motions, * * *
motions against Measure 11 * * * and * * * motions for return of things seized.”
9 ORS 135.335(2) provides:
“A defendant may plead no contest only with the consent of the court.
Such a plea shall be accepted by the court only after due consideration of the
views of the parties and the interest of the public in the effective administration
of justice.”
692 Johnson v. Premo
the plea agreement form, crossing out those portions of the
terms that indicated that he had received adequate legal
representation, and alerting the court that he intended to
file a bar complaint against Ludwig.
The trial court held a hearing to ascertain the terms
of the agreement and to confirm that petitioner’s consent
to the agreement was voluntary and knowing. The parties
also agreed to the trial court’s following explanation of the
agreement:
“[T]he negotiations have resulted in what is presented to
me as a conditional petition to plead no contest and waiver
of jury trial. I understand this is being submitted pursuant
to the statute which permits a conditional plea so that
all pre-plea hearings, motions and rulings will be part of
the record that goes up on appeal and that [petitioner] will
be able to seek an appellate remedy or other post judgment
remedy and there will be a complete record of * * * all of that.
“That if for some reason the significant rulings were
reversed the conditional plea would go away and we’d start
all over again. If, on the other hand, his appeal is unsuccessful,
the petitions would become less conditional, more
final, and we would proceed.”
(Emphasis added.)
Of paramount concern to petitioner was that all the
rulings on his motions be included in the record, so that he
could raise them on appeal. At sentencing, he again raised
this concern to the court, asking the court to assist him
in retrieving numerous records pertaining to his motions,
and even asking the court how to preserve his motions in
which the trial court had not made rulings. The trial court
directed him to speak to Ludwig, and, “as soon as [her] time
ends, you can talk to your appellate lawyer about that.”
The conditional plea as entered did not identify in
writing any of the pretrial rulings that petitioner wished to
appeal.
Petitioner’s appellate counsel, Ledesma, filed a
notice of appeal from the Multnomah County judgment and
subsequently filed a brief raising a single assignment of error,
viz., that the trial court had erred in denying petitioner’s
Cite as 269 Or App 686 (2015) 693
speedy trial motion. The gravamen of the argument was
that petitioner was entitled to dismissal under former ORS
135.747, because the 22-month delay between petitioner’s
return to Oregon and his arraignment in Multnomah
County was unreasonable,10 and, further, that he had never
consented to the waivers that Hart had submitted on his
behalf, nor consented to the delays requested by both Hart
and Kohlmetz. The brief also raised related constitutional
speedy trial arguments under both Article I, section 10,
and the Sixth Amendment. Petitioner filed a supplemental
pro se brief as well, asserting 24 assignments of error, some
of which pertained to rulings that the trial court had made,
including the speedy trial ruling, some of which pertained
to various complaints about the way the criminal investigation
and pretrial hearings had proceeded, and some of
which pertained to the asserted deficiencies of his various
attorneys.
In its response to both briefs, the state argued that
the assignments of error raised in both the principal appellate
brief and the supplemental pro se brief were nonreviewable,
because the conditional plea had not—as required by
ORS 135.335(3)—specified in writing any pretrial rulings
for which petitioner reserved a right of appellate review.
Alternatively, the state argued that the 24 assignments of
error in petitioner’s pro se brief were nonreviewable, because
they “violate[d] a number of rules of appellate procedure,
such that review of [petitioner’s] claims is difficult, if not
impossible.” Additionally, the state argued that the trial
court did not err in denying petitioner’s speedy trial motion.
We affirmed the appeal without opinion. State v. Johnson,
219 Or App 546, 183 P3d 246 (2008), rev den, 346 Or 258
(2009).
10 Although the appellate brief in the Multnomah County case was filed
before the Supreme Court’s decision in Johnson, 339 Or 69, reversing the judgment
in petitioner’s Clackamas County case, the arguments in that brief pertaining
to the 22-month period between petitioner’s return to Oregon and his
arraignment in Multnomah County paralleled those addressed in Johnson, viz.,
that the 21-month period of delay between petitioner’s return to Oregon and his
arraignment on the Clackamas County charges was unreasonable under former
ORS 135.747. As noted, 269 Or App at ___ n 1, the Supreme Court in Johnson
concluded that, because that period of delay was unreasonable, defendant was
entitled, pursuant to former ORS 137.747, to dismissal of the Clackamas County
charges. 339 Or at 95.
694 Johnson v. Premo
Petitioner subsequently initiated this action for
post-conviction relief. The operative pleading filed by petitioner’s
counsel was entitled “Second Amended Petition for
Post-Conviction Relief” (amended petition). In addition,
petitioner filed approximately 22 “pro se motion pleadings.”11
The amended petition alleges that petitioner was
denied his right to adequate assistance of trial and appellate
counsel under Article I, section 11, of the Oregon
Constitution and the Sixth Amendment to the United States
Constitution,12 and that the state engaged in misconduct by
breaching its plea agreement with petitioner.13 The claims of
inadequate assistance of counsel, which are the focus of our
review that follows, are that (1) trial counsel Ludwig failed
“to take reasonable steps to ensure that petitioner’s pleas
conformed to the requirements of ORS 135.335(3), [and, as
a result,] there is a reasonable probability that the Oregon
Court of Appeals did not review [petitioner’s] assignments
of trial court error”; (2) appellate counsel Ledesma “failed to
file or otherwise take reasonable steps to ensure filing of a
motion requesting that the trial court issue amended judgments
of conviction which conformed to the requirements of
ORS 135.335(3)”; and (3) trial counsel Hart and Kohlmetz
improperly waived petitioner’s 60- and 90-day speedy trial
rights and otherwise delayed petitioner’s trial without his
consent, and the delays were in violation of his statutory
and constitutional speedy trial rights. The amended petition
alleged that petitioner was entitled to, variously, a determination
that his Multnomah County convictions were “void
11 The post-conviction court stated in its findings of fact:
“Petitioner sent hundreds of pages to this Court, and attempted to have
1650 pages of additional pro se writings incorporated by reference into the
[amended petition].”
Although petitioner’s 22 pro se motions were entered in the record, the evidence
and argument presented at the post-conviction hearing pertained primarily to
the amended petition.
12 Article I, section 11, provides, in pertinent part, that, “[i]n all criminal
prosecutions, the accused shall have the right * * * to be heard by * * * counsel.”
The Sixth Amendment provides, in pertinent part, that, “[i]n all criminal prosecutions,
the accused shall enjoy the right * * * to have the Assistance of Counsel
for his defence.”
13 On appeal, petitioner does not raise any assignments of error pertaining to
the breach of contract claim.
Cite as 269 Or App 686 (2015) 695
and without further force and effect,” a new appeal, and a
remand for “further proceedings” in the Multnomah County
criminal case.
In litigating those claims, petitioner presented the
entire record of the Multnomah County criminal proceedings,
and the briefs and other submissions on direct appeal,
as well as testimony from Kohlmetz and Ludwig and from
petitioner himself. With respect to the specifications pertaining
to the conditional plea agreement and the ensuing
appeal, petitioner’s counsel explained:
“[Petitioner] entered an agreement with the prosecution
and that agreement was a conditional plea agreement
wherein he would be entitled to raise all of these various—
the denial of his motions and all of these complaints and
he was doing—his behavior was relatively similar, from my
perspective, to what has taken place in this case, a motion
blizzard, one after the other, thousands of pages, and the
idea was that the Court of Appeals would be able to then look
at what the trial court did and sort it all out. [Petitioner]
entered that deal. The Court was in agreement with it, his
attorney was in agreement with it.
“* * * * *
“* * * [I]f Your Honor reads through the transcripts of
these trial proceedings, it is just painfully clear that what
[petitioner] is doing at every step of the way is attempting to
preserve rights, just what he’s done here by filing mass[ive]
amounts of paperwork. So it’s easy to infer that the whole
purpose[or] the critical central purpose of this plea agreement
from his perspective * * * was the opportunity to be able
to appeal these issues that he had preserved or raised.”
(Emphasis added.)
With respect to petitioner’s asserted entitlement to
relief based on Hart’s and Kohlmetz’s alleged default relating
to the 60- and 90-day waivers and other conduct pertaining
to speedy trial provisions, petitioner contended that,
although petitioner had originally signed the waivers, his
attorneys unreasonably failed to effectuate his immediate
desire to rescind those waivers. Petitioner further contended
that, between the time Hart was appointed as his counsel
in January 2001 and the time that Kohlmetz withdrew as
696 Johnson v. Premo
counsel in July 2001, the two attorneys had unreasonably,
and without his consent, undertaken conduct, or acquiesced
in conduct, designed to delay trial in Multnomah County
pending the outcome of the aggravated murder prosecution
in Washington County.
The state countered that, with respect to the conditional
plea-related claims, petitioner contended that counsel
was obligated to reserve all of petitioner’s more than 140
pretrial motions for appellate review without any differentiation
among those matters and without any coherent explanation
as to how, or why, any particular ruling would have
been reversed on appellate review:
“I’ll bet you even today, [petitioner] would not specify three
issues, five issues, 15 issues. He would not be discrete,
there’s nothing in [petitioner’s counsel’s] pleadings. * * *
[W]hat essentially [petitioner] wants to do is have a plea
agreement and then litigate everything he talked about
in a fully discursive and vague way in the trial court and
dump that all on the Court of Appeals.”
The state further contended, with respect to the waiver and
speedy trial matters, that counsel’s actions were within the
range of permissible tactical discretion and, in all events,
that petitioner had suffered no cognizable prejudice.
The post-conviction court ultimately rejected all of
petitioner’s claims. In so holding, the court concluded that
petitioner had failed to establish that counsels’ performance
breached the standard of constitutionally competent representation,
much less that he had been prejudiced by any
alleged inadequate representation. Specifically, with respect
to the conditional plea-based claims, the court emphasized
that petitioner “has not pointed to any specific valid issue
that could have been raised on direct appeal.”
On appeal, petitioner challenges, inter alia, the
post-conviction court’s rejection of his claims that (1) Ludwig
failed to properly reserve, for appeal, the pretrial ruling on
petitioner’s speedy trial motion; (2) appellate counsel failed
to request that the trial court enter a corrected judgment
of conviction, ORS 138.083, “that conformed to the requirements
of ORS 135.335(3)”; and (3) Hart and Kohlmetz
Cite as 269 Or App 686 (2015) 697
improperly waived petitioner’s speedy trial rights and
delayed his trial without his consent.14
To prevail on a claim of inadequate assistance of
counsel under Article I, section 11, the petitioner must prove,
by a preponderance of the evidence, that legal counsel “failed
to exercise reasonable professional skill and judgment based
on the law at the time * * * counsel acted” and that that deficient
performance “had a tendency to affect” the outcome
of the prosecution. Real v. Nooth, 268 Or App 747, 752, ___
P3d ___ (2015). To prevail under the Sixth Amendment,
petitioner must show that counsel’s performance “fell below
an objective standard of reasonableness” and that there is
a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 US 668, 688, 694,
104 S Ct 2052, 80 L Ed 2d 674 (1984).
We first consider petitioner’s contention on appeal
that trial counsel’s failure to reserve, in writing, the right
to appeal from the pretrial ruling on petitioner’s speedy
trial motion constituted inadequate assistance of counsel.
Petitioner argues—for the first time on appeal—that, “if he
had been allowed to raise his speedy trial claim on direct
appeal[,] he would have prevailed as he did in [petitioner’s
Clackamas County case, Johnson, 339 Or at 95].”
That argument was not raised in the postconviction
court. As noted, 269 Or App at ___, petitioner’s
claim, and argument, before the post-conviction court was
global, generic, and amorphous. The amended petition
alleges generally that trial counsel “failed to ensure that
[the conditional pleas] conformed to the requirements of
ORS 135.335(3)[.]” At no time before the post-conviction
court did petitioner ever specify which of the over 140 pretrial
rulings should have been reserved for appellate review,
much less identify for the post-conviction court’s cogent consideration
the particular pretrial ruling—the denial of his
speedy trial motion—that is the object of his argument on
14 Petitioner also filed a pro se brief, assigning error to the post-conviction
court’s denial of his pro se post-conviction motions. Petitioner’s pro se brief contains
no argument explaining why he believes the court erred in its rulings, and
we decline to consider the pro se arguments further.
698 Johnson v. Premo
this appeal. Nor, concomitantly, did petitioner ever argue
to the post-conviction court that he had been prejudiced
because, but for counsel’s failure to reserve in writing the
denial of the statutory speedy trial motion to dismiss, we or
the Supreme Court would have reversed that ruling, permitting
petitioner to withdraw his conditional guilty plea, with
a dismissal of the charges. See generally State v. Reeves, 250
Or App 294, 301, 280 P3d 994, rev den, 352 Or 565 (2012)
(“To preserve the argument for appeal, * * * [t]he appellant
must have made the argument with sufficient particularity
to allow the trial court to rule on the argument and correct
any error.”). Accordingly, because it was not preserved, we
decline to address petitioner’s original contention on appeal.
See Hale v. Belleque, 255 Or App 653, 660, 298 P3d 596,
adh’d to on recons, 258 Or App 587, 312 P3d 533, rev den,
354 Or 597 (2013) (“Preservation principles apply in the context
of post-conviction relief and, as a general rule, arguments
not made to the post-conviction court in support of a
claim will not be considered on appeal.”).
We turn to petitioner’s contention that the postconviction
court erred in rejecting his claim of inadequacy
of appellate counsel. The amended petition alleged that
“[a]ppellate counsel * * * failed to file or otherwise take
reasonable steps to ensure filing of a motion requesting
that the trial court issue amended judgments of conviction
which conformed to the requirements of ORS 135.335(3).
At the time of petitioner’s appeal, attorneys employed by
the Office of Public Defense Services Appellate Division,
routinely filed motions under ORS 138.083 to correct deficiencies
in trial court judgments such as that upon which
[the state] relied in challenging petitioner’s right to appeal.”
As with his claim relating to trial counsel’s alleged default
with respect to the conditional guilty plea, petitioner did not
focus or refine the contention before the post-conviction court
with respect to any particular ruling that would have been
the object of such a putative correction. Nor did petitioner
adduce any proof of the standard of adequacy alleged in the
amended petition, much less present for the post-conviction
court’s consideration any reasoned argument that any such
“correction” could have revived appellate review of matters
not preserved in the original judgment.
Cite as 269 Or App 686 (2015) 699
Now, on appeal, petitioner contends:
“If appellate counsel had requested a corrected judgment,
the trial court likely would have entered a corrected judgment
that, in writing, reflected the parties’ and the court’s
understanding that defendant entered a conditional plea so
he could appeal the denial of the motion to dismiss. Then
this court could have reviewed the error on direct appeal,
and the result in the present case would have been a dismissal
for lack of speedy trial under [the holding in petitioner’s
Clackamas County case, Johnson, 339 Or at 95].”
We decline to review that contention, as unpreserved,
for essentially the same reasons as the preceding
claim. Again, petitioner’s position before the post-conviction
court was that appellate counsel was inadequate for failing
to seek a corrected judgment reserving review of an undifferentiated
tangle of over 140 pretrial rulings; at no time
did petitioner focus, as he does now on appeal, on the speedy
trial ruling. Regardless of how we might otherwise have
assessed the latter, we cannot, and will not, hold that the
trial court erred in rejecting the former.
Finally, petitioner challenges the rejection of his
claim that trial counsel provided inadequate assistance of
counsel when they waived his 60-day and 90-day statutory
speedy trial rights, ORS 136.290 and ORS 135.763, and
otherwise delayed his trial in Multnomah County without
his consent. We reject petitioner’s contentions as to both the
60- and 90-day waivers because, for the reasons that follow,
even assuming, without deciding, that counsel somehow
breached the standard of constitutionally competent representation
by not seeking to rescind those waivers, the trial
court correctly concluded that petitioner failed to establish
constitutionally cognizable prejudice from that conduct. We
reject petitioner’s remaining speedy trial-based contentions
without discussion.
For purposes of post-conviction relief, “[p]rejudice
of state constitutional magnitude is established by showing
that counsel’s advice, acts, or omissions had a tendency to
affect the result of the prosecution. Under the United States
Constitution, prejudice is established by showing that there
is reasonable probability that but for counsel’s deficient performance
the result would have been different.” Hale, 255
700 Johnson v. Premo
Or App at 660 (internal quotation marks and citations omitted);
see also State v. Russum, 265 Or App 103, 113, 333
P3d 1191, rev den, 356 Or 575 (2014) (“Typically, in order to
require a remedy, a defendant must offer some evidence that
the violation of a constitutional right has resulted in some
harm or prejudice.”).
Here, petitioner failed to establish that, but for
counsels’ purported defaults with respect to the 60- and
90-day speedy trial requirements, the outcome of the predicate
criminal case likely would have been different. The
60-day provision generally provides that, if the state does
not bring a defendant who is in custody to trial within
60 days of the arrest, then, unless the defendant consents
to not being tried within 60 days, the defendant must be
released from custody. ORS 136.290(2).15 Nothing in that
statute provides for dismissal of the charges against the
defendant. Accordingly, even assuming the factual premises
of petitioner’s “improper waiver” contention, the charges
against him would not have been dismissed—and the outcome
of the prosecution would not have been affected.16
Unlike the 60-day provision, the 90-day statutory
speedy trial provision does provide generally, albeit
subject to myriad qualifications, for dismissal of charges
if the defendant is not brought to trial within 90 days of a
request for trial. ORS 135.763; ORS 135.765.17 However, petitioner
presented no evidence that, if his counsel had made a
“90-day” demand for trial pursuant to ORS 135.760, the state
would have failed to bring the Multnomah County case to trial
within that period. Thus, again, the trial court did not err in
concluding that petitioner failed to prove that counsel’s purported
default caused constitutionally cognizable prejudice.

* * *

15 See 269 Or App at ___ n 2.
16 We note, parenthetically, that the uncontroverted evidence before the
post-conviction court was that petitioner would have continued to have been
incarcerated in Washington County pending the resolution of the Washington
County aggravated murder charges, regardless of any purported violation of ORS
136.290 with respect to the Multnomah County charges.
17 ORS 135.765(1) provides, in pertinent part, that “the court shall dismiss
any criminal proceeding not brought to trial in accordance with ORS 135.763.”
See 269 Or App at ___ n 3 (setting out pertinent text of ORS 135.763).

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: