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Johnson v. Premo

Court of Appeals of Oregon

March 18, 2015

MARTIN ALLEN JOHNSON, Petitioner-Appellant,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent

Argued and Submitted September 6, 2013.

Page 579

Marion County Circuit Court 09C17860. Thomas M. Hart, Judge.

Jason L. Weber argued the cause and filed the brief for appellant.

Martin Allen Johnson filed the supplemental brief, Pro se.

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.

Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.[*]


Page 580

[269 Or.App. 688] HASELTON, C. J.

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 [269 Or.App. 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 waiver[2] and a 90-day speedy trial waiver[3] on petitioner's behalf. Petitioner signed both of the waivers.

Page 581

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 [269 Or.App. 690] 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 [269 Or.App. 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 ...

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