Martin Allen Johnson v. Jeff Premo

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to dismiss, pursuant to former ORS 135.747 (2011), repealed by Or Laws 2013,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).

Affirmed.