Johnson v. Premo, 333 P.3d 288

Background

Martin Allen Johnson was convicted of multiple counts of aggravated murder and sentenced to death; after direct appeal failed, he sought post‑conviction relief alleging ineffective assistance of trial counsel.
At the post‑conviction hearing Johnson was represented by counsel but submitted over 100 pro se filings; the post‑conviction court vacated his convictions and ordered a new trial on ineffective‑assistance grounds.
The superintendent appealed the grant of post‑conviction relief. During the appeal Johnson and his counsel each filed notices of cross‑appeal; Johnson continued to file multiple pro se motions after counsel entered an appearance.
The superintendent moved to strike Johnson’s pro se motions under ORS 9.320 (represented parties must appear through counsel); the Appellate Commissioner and Court of Appeals relied on Church v. Gladden to allow some pro se filings where petitioner reasonably believed counsel had failed to pursue certain claims.
The Oregon Supreme Court granted review to decide whether Church permits “hybrid representation” (simultaneous counsel and pro se filings) in post‑conviction appeals and to resolve whether the Court of Appeals correctly treated Johnson’s pro se motions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a post‑conviction petitioner who is represented on appeal may also file pro se motions (hybrid representation).	Johnson: Church allows a represented post‑conviction petitioner to file pro se motions when petitioner bears personal responsibility for selecting and raising issues and when counsel declines to file them.	Superintendent: ORS 9.320 bars a represented party from appearing pro se; Church does not create a general exception.	Held: No right to hybrid representation; ORS 9.320 controls—represented parties must appear through counsel.
Whether Church v. Gladden created an exception to ORS 9.320 permitting pro se filings while represented.	Johnson: Church supports pro se filings where counsel fails or refuses to take actions the petitioner requests.	Superintendent: Church addressed only avoidance of res judicata under ORS 138.550(3), not a rule on appearances.	Held: Church is limited to requiring petitioner to notify the court when counsel fails to assert a ground for relief to avoid waiver under ORS 138.550(3); it does not create an ORS 9.320 exception.
Whether pro se motions filed after counsel’s appearance in this case were protected by Church (i.e., petitioner’s good‑faith belief that counsel failed to act).	Johnson: He had a good‑faith, objectively reasonable basis to believe counsel failed to pursue issues, permitting pro se motions under Court of Appeals’ test.	Superintendent: The pro se motions did not assert that counsel declined to pursue a ground for post‑conviction relief within the meaning of Church.	Held: Most post‑appearance pro se motions did not implicate Church (they did not assert counsel failed to raise a ground for relief) and should have been struck under ORS 9.320; the Court of Appeals reached correct practical outcomes for some motions but on incorrect legal grounds.
Scope of Church — whether it applies to appellate procedure or only trial/post‑conviction hearings for res judicata purposes.	Johnson: Church principles apply to appeals as well.	Superintendent: Church concerns what a petitioner must do at the post‑conviction hearing to avoid waiver; it does not apply to appellate procedure.	Held: Court assumed arguendo Church could apply on appeal but concluded Johnson’s pro se motions did not fit Church’s narrow scope; the decision does not expand Church to authorize general hybrid representation on appeal.

Key Cases Cited

Church v. Gladden, 244 Or 308 (1966) (limits petitioner’s ability to relitigate waived grounds—petitioner must inform court if counsel fails to assert grounds to avoid res judicata)
State v. Johnson, 340 Or 319 (2006) (direct appeal decision in petitioner’s underlying criminal case)
Oregon State Bar v. Sec Escrows, Inc., 233 Or 80 (1962) (rationale for limiting nonlawyer practice to protect public and litigants)
Barber v. Gladden, 215 Or 129 (1958) (res judicata in habeas/post‑conviction context)
State v. Stevens, 311 Or 119 (1991) (rejection of a defendant’s right to hybrid representation in criminal trials)
State v. McDonnell, 313 Or 478 (1992) (same)
Faretta v. California, 422 U.S. 806 (1975) (constitutional right to self‑representation acknowledged but does not compel hybrid representation)