Johnson v. Premo

To prevail on a claim of inadequate assistance of counsel, a 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 deficient performance had a tendency to affect the outcome of the prosecution.

Johnson sought reversal of a judgment denying his claim for post-conviction relief. Johnson was indicted for several sexual offenses in Multnomah County. Hart was initially appointed as counsel and filed a speedy trial waiver on Johnson’s behalf. Hart withdrew and Kohlmetz became Johnson’s counsel. Kohlmetz also withdrew and Ludwig was appointed. On the day of trial, Johnson asked Ludwig to be removed from the case, which the court denied. Thereafter, Ludwig discussed a plea agreement with the prosecutor. Johnson agreed to a conditional offer that would allow all pre-trial rulings to be included on the record so he could raise them on appeal. The conditional offer did not include this request. Johnson initiated this action for post-conviction relief, which was denied. On appeal, Johnson argued that attorney Ludwig failed to properly preserve for appeal the pretrial ruling on Johnson’s speedy trial motion, that appellate counsel failed to request that that the trial court enter a corrected judgment of conviction, and that attorneys Hart and Kohlmetz improperly waived Johnson’s speedy trial rights and delayed his trial without his consent. The Court did not consider the original argument on appeal because it was not preserved. The Court also declined to address the inadequacy of appellate counsel because it was not properly preserved. With regards to Johnson’s speedy trial arguments, the Court found that Johnson failed to prove that counsel’s purported default caused a constitutionally cognizable prejudice. Affirmed.