Johnson v. Premo

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Post-Conviction Relief
  • Date Filed: 03-30-2016
  • Case #: A154129
  • Judge(s)/Court Below: Flynn, J. for the Court; DeVore, P.J.; & Haselton, S.J.

Under ORS 138.530(1)(a) and Article I, section 11, of the Oregon Constitution, to prevail on a claim of ineffective assistance of counsel, a petitioner in a post-conviction relief matter must prove by a preponderance of the evidence that his or her attorney failed to exercise reasonable professional skill and judgment, and consequently the petitioner suffered prejudice.

After the court granted Petitioner post-conviction relief to Petitioner on the basis of ineffective assistance of trial counsel (Article I, section 11, of the Oregon Constitution), the State appealed, arguing the court erred when it determined defense counsel in the underlying case failed to adequately investigate a defense and that Petitioner was prejudiced by that failure. In the underlying criminal case, Petitioner had been convicted of and sentenced to death for aggravated murder involving the death of a woman. At trial, defense counsel advanced a theory of improper venue, arguing the homicide had occurred in the “wrong” venue, and failed to investigate a defense of death due to a drug overdose, despite having information that facts and expert testimony could be available to support such a defense. Under Article I, section 11, of the Oregon Constitution, evaluating a claim of inadequate assistance of counsel requires (1) a determination that an attorney failed to exercise reasonable professional skill and judgment and (2) the failure had a tendency to affect the result of the trial. On appeal, the State argued the post-conviction court erred in finding both requirements were met, in part because defense counsel did present expert testimony to support the chosen strategy. The Court held the post-conviction court did not err because defense counsel had chosen the defense without exercising due diligence when investigating alternative defenses, and the venue defense was not a reasonable tactical decision. The Court also found Petitioner was prejudiced by defense counsel’s lack of due diligence. Affirmed on appeal; cross-appeal dismissed as moot.

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