Johnson v. Premo

• Decision Date: 14 August 2014
• Docket Number: CA A154129,SC S061670).,(CC 06C16178
• Citation: 333 P.3d 288,355 Or. 866
• Parties: Martin Allen JOHNSON, Respondent on Review, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Petitioner on Review.
• Court: Oregon Supreme Court

355 Or. 866

333 P.3d 288

Martin Allen JOHNSON, Respondent on Review,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Petitioner on Review.

(CC 06C16178; CA A154129; SC S061670).

Supreme Court of Oregon,

En Banc.

Argued and Submitted May 1, 2014.

Decided Aug. 14, 2014.

On review of an order of the Court of Appeals.^*

Kathleen Cegla, Senior Assistant Attorney General, argued the cause and filed the brief for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Daniel J. Casey, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Robert L. Huggins, Jr., Portland.

LANDAU, J.

The issue in this case is whether a petitioner in a post-conviction appeal is entitled both to be represented by counsel and to appear pro se. The Court of Appeals held that, under this court's decision in Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), a post-conviction petitioner is entitled to be represented by counsel on appeal and, in the same appeal, to file any motions on his own behalf that his counsel has declined to file, provided the petitioner has a good faith and objectively reasonable basis for believing that competent counsel would have filed such motions. We conclude that our decision in Church does not countenance such “hybrid representation.”

The relevant facts are not in dispute. Petitioner was convicted of eight counts of aggravated murder and sentenced to death. After an unsuccessful direct appeal, State v. Johnson, 340 Or. 319, 131 P.3d 173 (2006), petitioner sought post-conviction relief, alleging, among other things, ineffective assistance of trial counsel. At the post-conviction hearing, petitioner was represented by counsel. He also filed more than 100 pro se motions, totaling more than 6,000 single-spaced pages of argument. The post-conviction court refused to accept most of those pro se filings because they were not signed by counsel, but allowed others, along with the claims raised by petitioner's attorneys. The court ultimately determined that petitioner had received inadequate and ineffective assistance of trial counsel during the guilt phase of his aggravated murder trial. The court vacated his convictions and remanded the case for a new trial.

The superintendent of the Oregon State Penitentiary appealed the judgment ordering post-conviction relief. Shortly after that, petitioner filed a pro se notice of cross-appeal. He also filed three pro se motions requesting various forms of assistance in preparation for his new trial. For reasons unexplained, petitioner denominated those three motions his “3rd”, “4th”, and “5th” motions. In those motions, petitioner requested that three attorneys be appointed to help him prepare for the new trial, that “law enforcement” be required to preserve all evidence during the pendency of the appeal, and that the trial court include in the record on appeal various materials that had been excluded from the record at the post-conviction hearing. One week later, petitioner's post-conviction trial counsel also filed a notice of cross-appeal.

The superintendent filed a motion to clarify which of the notices of cross-appeal were operative and whether the Court of Appeals considered petitioner “to be represented by counsel in this appeal.” The superintendent later learned that petitioner was in fact represented by counsel. He then filed a motion to strike all of petitioner's pro se motions, arguing that, under ORS 9.320, a represented party may appear only through counsel. In the meantime, petitioner filed a number of additional pro se motions, denominated as his “2nd,” “6th,” and “7th” motions. The “2nd” motion, comprising 122 single-spaced pages, requested (among other things) an expedited appeal, the appointment of three additional lawyers to assist in preparing for the new trial, and the sealing of an affidavit of petitioner concerning various “confidential-private-privileged attorney client communications.” The “6th” motion requested that the appeal “be heard by the Oregon Supreme Court not the Court of Appeals.” The “7th” motion requested a court order allowing petitioner to access the “tools and facilities and time” to write his pro se motions and prepare for his appeal and retrial.

Petitioner's appellate counsel filed a response to the superintendent's motion, arguing that, under Church, “it is not petitioner's counsel, but petitioner himself, who bears personal responsibility for selecting and raising the issues he wants litigated in a post-conviction proceeding.” According to petitioner's counsel, Church allows a postconviction petitioner to submit pro se filings on appeal that are neither signed nor submitted by his appointed counsel.

The Appellate Commissioner ruled that both notices of appeal were operative. As for the pro se motions, the commissioner acknowledged that, under ORS 9.320, a represented party ordinarily is permitted to appear only through counsel and may not simultaneously appear pro se. Nevertheless, the commissioner concluded that, under Church, a petitioner is entitled “to file a motion in his or her own name when the petitioner has a good faith belief that counsel lacks, or is failing to exercise, the ‘skills and experience commensurate with the nature of the conviction and complexity of the case.’ ” (quoting ORS 138.590). Turning to the six pro se motions that had been filed to that point, the commissioner concluded that the first three had been filed before counsel had filed an appearance, and, as a result, petitioner had authority to file them on his own behalf. The commissioner then denied those three motions on the merits. As for the remaining three motions that had been filed pro se after counsel had filed an appearance, the commissioner struck those motions after concluding that none was cognizable because petitioner had failed to show that his appellate counsel had declined to file them.

The superintendent petitioned for reconsideration, arguing that the commissioner had erred in even considering petitioner's pro se motions. In the meantime, petitioner filed four more such motions, denominated as his “8th” through his “11th” motions. In the “8th” motion, petitioner essentially replied to the state's response to his “6th” and “7th” motions. The “9th” motion was a 55–page, single-spaced document largely consisting of extended quotations from various appellate court cases and requesting “ Church claims” and unspecified “evidence.” The “10th” motion requested an extension of time for filing corrections to transcripts. And the “11th” motion requested a court order that petitioner's appellate counsel file a response to the superintendent's motion for reconsideration.

The Court of Appeals largely upheld the commissioner's decision. The court concluded that, under this court's decision in Church,

“[a] petitioner who is represented by appointed counsel on appeal may file a motion in his or her own name based on a showing that the petitioner has a good faith and objectively reasonable belief that counsel lacks, or is failing to exercise the ‘skills and experience commensurate with the nature of the conviction and complexity of the case.’ ”

The court explained that, if a represented post-conviction petitioner desires to file a pro se motion, then he or she

“must, in the introduction to the motion: (1) clearly state the relief sought; (2) state that (a) [the petitioner] asked counsel to file a motion seeking the same relief and (b) counsel either explicitly declined to do so or failed to respond to the request for such a substantial period of time as to have implicitly declined to do so; (3) state that [the] petitioner has a good faith belief that counsel's failure to file the requested motion results from counsel's failure to render suitable representation; and (4) explainwhy [the] petitioner's belief in that regard is objectively reasonable.”

The court affirmed the commissioner's rulings on the individual pro se motions that petitioner had filed to that point. Turning to the four additional motions, the court struck the first three on the ground that petitioner had failed to show that counsel had declined to file them, and denied the fourth on the ground that it had become moot, because counsel had since filed a response to the superintendent's motion.

The superintendent sought review of the Court of Appeals' order, arguing that the Court of Appeals had misread Church. In the superintendent's view, Church “stands for the limited proposition that a post-conviction petitioner has a procedural right—in the trial court—to seek that court's assistance if the petitioner's attorney is not pursuing the grounds for relief that the petitioner wants to litigate.” According to the superintendent, nothing in Church altered the general rule, reflected in ORS 9.320, that a represented person must appear through counsel. In response, petitioner contends that the Court of Appeals “reasonably and correctly applied the principles of Church to this case.”

We begin with some background principles. Since the mid-nineteenth century, Oregon law has required represented parties to litigate in court through their attorneys. See Oregon Peaceworks Green, PAC v. Sec'y of State, 311 Or. 267, 270, 810 P.2d 836 (1991) (noting that the rule “has remained essentially unchanged” since its enactment in 1862). The current rule is codified at ORS 9.320, which provides that, subject to an exception not applicable to this case,

“[a]ny action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a corporation appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of the client of the attorney as between the client and the adverse party[.]”

(...