author: LUMPKIN, JUDGE: KUEHN, V.P.J., DISSENTING:

text:
    Jonas Jorge CONROY-PEREZ, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2017-559
    Court of Criminal Appeals of Oklahoma.
    FILED APRIL 4, 2019
    SUMMARY OPINION
   LUMPKIN, JUDGE:

¶ 1 Appellant, Jonas Jorge Conroy-Perez, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2014-182 in the District Court of Washita County, by the Honorable Christopher S. Kelly, Associate District Judge. On August 20, 2015, Appellant entered a negotiated plea of guilty to Harboring a Fugitive From Justice, and judgment and sentencing was deferred for two years until August 17, 2017, pursuant to rules and conditions of probation.

¶ 2 On February 11, 2016, the State filed an application to accelerate Appellant's deferred sentencing alleging he violated probation by (1) having new felony charges filed for Knowingly Concealing Stolen Property in the District Court of Washita County; and (2) by failing, refusing and neglecting to pay his "Prosecution Reimbursement fees to the District Attorney's Office." On May 30, 2017, the hearing on the application to accelerate was held before Judge Kelly.

¶ 3 At the hearing, the State presented the testimony of Brittani Brice ("Brice"), a victim/witness coordinator for the Washita County District Attorney's Office. Brice testified that in August of 2015 Appellant had been ordered to pay $960.00 in District Attorney supervision fees; Appellant made a payment of $80.00 on January 15, 2016, as his only payment; and thus his current balance was $880.00. On cross-examination, Brice testified that she had not checked on and was not testifying about Appellant's financial condition, only that he owes $880.00. After Brice's testimony, the State rested.

¶ 4 Appellant testified in his own defense. Appellant said he had not worked since June 11, 2015, when he was in a vehicle wreck while working for a television and appliance company. Appellant testified he was on worker's compensation and could not work because he needed arm surgery and because of a pending worker's compensation settlement. On cross-examination, Appellant acknowledged his accident occurred about one and one-half months before he entered his plea in this case and he knew about his medical issues and his worker's compensation issues when he entered the plea agreement. After his testimony, Appellant rested.

¶ 5 In closing, the State argued that, while it was understandable Appellant wasn't working because of his pending surgery and pending worker's compensation settlement, he still had the responsibility to make required payments. The State also noted Appellant agreed to make the payments after his accident. The State asked that Appellant be convicted and sentenced to a term of five years, with all but the first ninety days suspended. Counsel for Appellant argued the evidence showed he is willing and wants to work but can't because of his physical disability caused by the accident.

¶ 6 After hearing the arguments, Judge Kelly stated that, having reviewed the evidence and testimony, Appellant had violated his rules and conditions of probation and his deferred judgment would be accelerated to a term of ten years with DOC, with all time suspended except for the first ninety days.

¶ 7 Appellant filed this appeal asserting four propositions of error:

PROPOSITION I:
MR. CONROY-PEREZ WAS DENIED DUE PROCESS AND A FAIR HEARING WHEN HIS SENTENCE WAS ACCELERATED FOR VIOLATING A CONDITION OF PROBATION THAT WAS NOT ORDERED.
PROPOSITION II:
THE TRIAL COURT ABUSED ITS DISCRETION BY ACCELERATING MR. CONROY-PEREZ'S SENTENCE BASED SOLELY ON FINANCIAL REASONS.
PROPOSITION III:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE WAS ENTITLED UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION.
PROPOSITION IV:
UNDER THE FACTS OF THIS CASE, A SENTENCE OF TEN YEARS IS EXCESSIVE.

ANALYSIS

¶ 8 In Proposition I, Appellant claims he was never ordered to pay prosecution reimbursement fees to the District Attorney's Office, as alleged in the State's application to accelerate his deferred sentencing, and therefore he was denied due process by being accelerated for his failure to pay supervision fees to the District Attorney's Office. Appellant's rules and conditions of probation state that he shall "Pay $40.00 per month District Attorney's Probation Fee ... EACH MONTH OF PROBATION ." (O.R. 40-41, emphasis in original). The rules and conditions do not differentiate as to whether they are prosecution reimbursement fees or supervision fees. Even if the fees were described as supervision fees during the sentencing hearing, Appellant had clear notice that he had been ordered to pay $40.00 per month in probation fees to the District Attorney's office throughout the term of his probation.

¶ 9 An application to revoke probation "must allege facts with such clarity that the defense is able to determine what reason is being submitted as grounds for revocation, enabling preparation of a defense to the allegation." Lennox v. State , 1984 OK CR 22, ¶ 6, 674 P.2d 1146, 1148-49. Appellant is correct that his application to accelerate alleges he failed to pay prosecution reimbursement fees to the District Attorney's office. However, the application sufficiently alleges Appellant's failure to pay probation fees to the District Attorney's office as the reason being submitted as grounds for acceleration of his deferred sentencing and, as shown in the analysis of Proposition II, enabled Appellant to prepare a defense to the allegation. Proposition I is denied.

¶ 10 In Proposition II, Appellant claims his judgment and sentencing was accelerated solely because of his inability to pay fees. Appellant contends that the District Court erred when it made no findings concerning his ability to pay the fees.

¶ 11 When the State seeks to revoke probation based upon a failure to make payments, the State has the burden to prove by a preponderance of the evidence that the probationer has failed to make the required payments. McCaskey v. State , 1989 OK CR 63, ¶ 4, 781 P.2d 836, 837 (citing Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ); see also Winbush v. State , 2018 OK CR 38, 433 P.3d 1275. Once the State has met this burden, the burden shifts to the probationer to show that the failure to pay was not willful, or that Appellant has made a good faith effort to make restitution. Id . If the probationer presents evidence to show non-payment was not willful, the hearing court must make a finding of fact regarding the probationer's ability to pay. Id .

¶ 12 In this case, the State proved that Appellant failed to make required payments of $40.00 per month on District Attorney probation fees, and was $880.00 in arrears on those payments. In defense, Appellant testified he had not been able to work throughout the term of his probation due to a work related vehicle accident. Appellant testified he could not make the required payments because he needed arm surgery and because of a pending worker's compensation settlement. The District Court accelerated Appellant's deferred judgment and sentencing stating only that Appellant violated his rules and condition of probation, and that the decision was made after review of the evidence and testimony presented.

¶ 13 We find the Appellant in this case presented evidence indicating that his failure to pay District Attorney probation fees was not willful, and that such evidence was sufficient to require further inquiry and findings by the District Court. McCaskey , 1989 OK CR 63 at ¶ 4, 781 P.2d at 837. We find the District Court erred by revoking Appellant's probation without making findings regarding his ability to pay. Id . The District Court's acceleration of Appellant's deferred judgment and sentencing must be reversed, and the matter remanded for further proceedings, including a determination of whether Appellant showed that his failure to pay the District Attorney probation fees was not willful, and whether he had made sufficient good faith efforts to make the payments.

¶ 14 In Proposition III, Appellant claims his counsel was ineffective for failing to recognize and assert the error alleged in Proposition I, concerning prosecution reimbursement fees versus supervision fees. To establish a claim of ineffective assistance of counsel, Appellant must first show that his counsel's performance was deficient, and then he must show the deficient performance prejudiced the defense. Bland v. State , 2000 OK CR 11, ¶ 112, 4 P.3d 702, 730-31 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ). Because there is no error in Proposition I, Appellant hasn't shown his counsel's performance was deficient or that his defense was prejudiced. Proposition III is denied.

¶ 15 Appellant's Proposition IV regarding excessiveness of his sentence is moot because of the resolution of Proposition II. Moreover, the proper method of raising an excessive sentence claim after acceleration of a deferred sentence is by a motion to withdraw plea and petition for writ of certiorari.

Hausle v. State , 2017 OK CR 5, ¶¶ 5-6, 394 P.3d 1278, 1280 ; Whitaker v. State , 2015 OK CR 1, ¶¶ 6-12, 341 P.3d 87, 89-90.

DECISION

¶ 16 The order of the District Court of Washita County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2014-182 is REVERSED and the matter is REMANDED to the District Court for further proceedings. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

LEWIS, P.J.: Concur

KUEHN, V.P.J.: Dissent

HUDSON, J.: Concur

ROWLAND, J.: Concur

KUEHN, V.P.J., DISSENTING:

¶ 1 Appellant owed $880 in District Attorney Supervision fees, and the District Attorney filed an Application to Accelerate his deferred sentence. Interestingly, the State also alleged newly committed offenses as additional grounds for accelerating Appellant's sentence, but it never introduced evidence of those offenses at the hearing. As I have warned before: "To revoke an Appellant at a revocation proceeding by presenting only evidence of failure to pay without any evidence of willfulness, instead of presenting evidence in support of the more serious violation of committing new crimes, is a dangerous and inappropriate procedure to adopt." Winbush v. State , 2018 OK CR 38, 433 P.3d 1275 (Kuehn, J., dissenting, at ¶ 4). Accelerating Appellant's probation in full, due solely to unfulfilled financial obligations, was an abuse of discretion under these facts and the law. I dissent.

¶ 2 I continue to hold that the trial judge must inquire into a probationer's ability to pay before imprisoning him or her solely for non-payment of fines, costs or assessments. Winbush , (Kuehn, J., dissenting) (citing Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ). But even if an acceptable judicial inquiry had been made into Appellant's ability to pay or alternatives to incarceration, the judge also erred in not making a detailed finding, on the record, that his inability to pay was willful. Nevertheless, Appellant did what Winbush requires him to do: present evidence that his failure to pay was not willful. He presented evidence that he was on worker's disability, was not working, and needed arm surgery that he could not afford. The Majority acknowledges that the Appellant presented evidence on the issue, but only sees this as sufficient to warrant "further inquiry " by the court before making a formal finding on the issue.

¶ 3 Further inquiry is unnecessary. After the guidance provided in Winbush , the trial court has nothing more to ask. Both parties presented their evidence, and the judge made his decision. Although the judge should have made a finding of willfulness on the record, it is obvious from his decision to accelerate that he found Appellant's evidence unpersuasive; and again, there were no alleged probation violations to consider except failure to pay fees. Remand for further proceedings is simply inviting the trial court to make a finding that would not be supported by the record. All paths led to Rome, and our appellate review turns on whether an abuse of discretion occurred.

¶ 4 The State presented evidence of non-payment. Appellant presented evidence that he did not have the money to pay, and that the money he did have was disability proceeds. It is illegal for the State to collect money from a defendant to pay fines and fees from his government assistance for disability. What more could Appellant do to establish that his failure to pay was not willful? Does the Majority hope the State will somehow disprove the defense testimony by allowing the record to be re-opened? We already know the judge is not to inquire. Appellant received 90 days in jail and felony conviction, and went from two years of probation to ten years, all without one graduated sanction or any alternatives to payment.

¶ 5 An "abuse of discretion" is a clearly erroneous conclusion and judgment, one clearly against the logic and effect of the facts presented. Neloms v. State , 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. I believe the trial court abused its discretion here, and would vacate the trial court's order to accelerate the deferred sentence.

      The State presented no evidence on the alleged probation violation of having new felony charges filed in the District Court of Washita County for Knowingly Concealing Stolen Property.

      The State abandoned the more serious probation violations by asking the court to dismiss those new non-violent felony charges on November 30, 2016.

      See also Spann v. State, Case No. RE-2017-706, (unpub. Nov. 8, 2018) (Kuehn, J., concurring in result); Bailey v. State , Case No. RE-2016-875, (unpub. May 3, 2018) (Kuehn, J., concurring in result); Cotton v. State , Case No. RE-2016-193, (unpub. Jan. 18, 2018) (Kuehn, J., concurring in part/dissenting in part); Black v. State , Case No. RE-2018-134, (unpub. Nov. 29, 2018) (Kuehn, J., concurring in result); Sherman v. State , Case No. RE-2016-642, (unpub. July 12, 2018) (Kuehn, J., dissenting).

      Under the Social Security Act, 42 U.S.C. § 407(a), "none of the moneys paid" as part of a Social Security benefit "shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." In Philpott v. Essex County Welfare Board, 409 U.S. 413, 415-17, 93 S.Ct. 590, 592-93, 34 L.Ed.2d 608 (1973), the United States Supreme Court held that Social Security funds were protected from claims by state governments. Oklahoma has not made a specific ruling regarding the protection of Social Security funds from payment of criminal fines, fees and costs. However, based on this Supreme Court ruling, many other courts have held that states cannot order individuals to pay legal financial obligations, such as fines, fees and costs, from Social Security benefits. See In re Lampart , 306 Mich.App. 226, 856 N.W.2d 192 (2014) ; State v. Eaton , 323 Mont. 287, 99 P.3d 661 (2004). These courts have ruled that legal financial obligations, such as criminal fines, fees and costs, count as "other legal process" under 42 U.S.C. § 407(a). Additionally, in Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 1025, 154 L.Ed.2d 972 (2003), the Supreme Court explained that "other legal process" is a process where "some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability."
      Most recently, the Washington Supreme Court found that all legal financial obligations, not just restitution, are subject to § 407(a) when the defendant's only assets and income are from social security disability. City of Richland v. Wakefield , 186 Wash.2d 596, 380 P.3d 459 (2016). In Wakefield , the defendant's only income was SSDI benefits and food stamp assistance, yet the trial court ordered installment payments. In reversing the trial court's decision, the court held that "federal law prohibits courts from ordering defendants to pay [legal financial obligations] if the person's only source of income is social security disability." Id. ¶ 29 at 466. Like Eaton and Lampart , the Wakefield court found that ordering fine payments from an individual whose sole income is SSDI violates § 407(a) because the order is a judicial mechanism by which the defendant's Social Security income is transferred to another in payment of a liability. Id. 465-66. Accordingly, the court concluded that the state was prohibited from ordering payment against the defendant. Id.


source: Caselaw Access Project

author: JOHN F. FISCHER, JUDGE:

license: Public Domain

text:
    Sarah Jane GILLETT and Anne Elizabeth Richmond, Petitioners/Appellants, v. Deborah B. MCKINNEY, Respondent/Appellee.
    Case No. 115,742
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED APRIL 4, 2019 Mandate Issued: May 1, 2019
    James A. Kirk, Amber M. Brock, KIRK & CHANEY PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant
    Charles O. Schem, HESTER SCHEM HESTER & DEASON, Oklahoma City, Oklahoma, for Respondent/Appellee
   JOHN F. FISCHER, JUDGE:

¶1 Kenneth N. McKinney, appeals the district court's order in this divorce action denying his request for credit for all of the 2014 and 2015 federal income tax credits and overpayments. Based on our review of the record, the district court's order in favor of Deborah B. McKinney is not against the clear weight of evidence and is affirmed.

BACKGROUND

¶2 The parties were married in 1998. They separated on October 3, 2015, and the petition for divorce was filed on October 20, 2015. The parties resolved the majority of their issues through mediation. They did not resolve who was to receive credit for the excess taxes paid in conjunction with their 2014 income tax returns or the excess in estimated taxes paid for their 2015 income tax liability. The district court held a hearing to resolve those issues. The district court found that husband's deposit of his separate funds into the parties' joint accounts "took away the separate identity and character" of those funds. The court also found that any of husband's separate funds used to pay the parties' income taxes had been commingled with their marital funds. According to the district court, wife's use of one-half of those funds was "fair and equitable." Based on these findings, the district court denied husband's request to credit him with all of the tax credits and overpayments. Husband appeals the district court's disposition of the 2014 and 2015 tax issues.

STANDARD OF REVIEW

¶3 In an action for divorce, the division of property "is one of equitable cognizance and in reviewing a case of equitable cognizance, the judgment of the trial court will not be disturbed unless the trial court abused its discretion or unless the court's finding was clearly against the weight of the evidence." Hough v. Hough , 2004 OK 45, ¶ 12, 92 P.3d 695 (citing Merritt v. Merritt , 2003 OK 68, ¶ 7, 73 P.3d 878 ). "A trial court's valuation of a marital estate will not be disturbed unless it is against the clear weight of evidence, and our cases demonstrate considerable deference to a trial court's valuation of marital assets in a divorce." Childers v. Childers , 2016 OK 95, ¶ 12, 382 P.3d 1020.

ANALYSIS

¶4 Husband raises two issues in this appeal. First, he argues that the district court erred in not awarding him $115,994 in tax refunds and overpayments as his separate property. Second, he contends that the district court erred when it did not order wife to reimburse him for $9,625 in additional taxes he had to pay because wife filed a separate, rather than a joint income tax return for 2015.

I. The Separate Property Issue

¶5 The parties filed joint individual income tax returns for the 2014 tax year and received a partial refund for the taxes paid in conjunction with that return. In addition, during 2015 and prior to the filing of the petition for divorce, the parties made estimated tax payments for the 2015 tax year. The estimated tax payments exceeded the amount of income tax eventually owed for 2015.

¶6 At the hearing on this matter, husband called an expert witness who testified that he could trace the source of the 2014 and 2015 tax payments to deposits made to the parties' joint account. According to the expert, deposits made to cover those payments came from withdrawals from husband's IRA. Wife used one-half of the 2014 refund and one-half of the 2015 overpayments, in the total amount of $115,994, to pay her 2015 income tax liability. It is not disputed that the funds and assets in husband's IRA are his separate property. Nor is it disputed that, from time to time, husband would withdraw funds from his IRA and deposit those funds into the parties' joint accounts. Some of these deposits approximately coincide with the 2014 and 2015 tax payments at issue in this case. The question is whether the funds withdrawn from husband's IRA remained his separate property once they were deposited in the parties' joint accounts, even if the tax payments can be "traced" to some of the deposits.

¶7 Husband urges us to follow the approach taken in the Uniform Marital Property Act of 1983. See Unif. Marital Prop. Act §§ 1 - 26, 9A U.L.A. 110-158 (Master Ed.1998). Section 14(a) of that Act provides that "mixing marital property with property having any other classification reclassifies the other property to marital property unless the component of the mixed property which is not marital property can be traced." Id. at 141. Oklahoma has not adopted the Uniform Marital Property Act. And, despite husband's argument to the contrary, we do not find that provision consistent with Oklahoma law. The deposit of separate property into a joint account may not automatically convert the separate property into marital property. Cf. , Smith v. Villareal , 2012 OK 114, ¶ 9, 298 P.3d 533 ("A transfer by one spouse of separate property to another does not by itself erase the separate character of the asset or real property transferred ...."). However, separate property given to a spouse is no longer separate property even though it might be traced. Chastain v. Posey , 1983 OK 46, 665 P.2d 1179 (transfer of title to separate property from one spouse to another presumes a gift of the separate property to the other spouse). Therefore, we decline to accept husband's invitation to follow the Uniform Marital Property Act of 1983, particularly when the Oklahoma Legislature has not chosen to adopt the Act during the last thirty-five years. Consequently, husband's separate ownership of the excess tax payments depends on existing Oklahoma precedent.

¶8 At the conclusion of this divorce proceeding, the district court was required to "enter its decree confirming in each spouse the [separate] property owned by him or her before marriage and the undisposed-of property acquired after marriage by him or her in his or her own right." 42 O.S. Supp. 2012 § 121(B). As relevant to this case, separate property means: "property owned by a spouse prior to the marriage, which retained its separate status during the marriage because it was maintained as separate property ...." In re Estate of Hardaway , 1994 OK 30, ¶ 9, 872 P.2d 395. Husband's expert testified that he was able to "trace" the tax payments to the husband's separate funds because the comparatively large tax payments generally coincided with comparatively large deposits into the joint accounts made a few days before or a few days after withdrawals from husband's IRA.

¶9 Although the expert's tracing evidence has some record support, it is not conclusive. The most notable example concerns the estimated taxes paid for the third quarter of 2015. On September 15, 2015, checks totaling $73,684 were written to the IRS and the Oklahoma Tax Commission from the parties' joint checking account. On September 22, 2015, $20,000 was withdrawn from husband's IRA and deposited in the parties' joint checking account. However, on September 14 and 15, $60,000 was withdrawn from the parties' joint savings account and deposited into the parties' joint checking account. Apparently, those two deposits were necessary to cover the $73,684 in tax payments.

¶10 It is not disputed that the savings account was a joint account, but husband's expert argued that this $60,000 also should be attributed to husband because funds in the joint savings account could be traced to a deposit made a year earlier from husband's separate funds. On August 15, 2014, $250,000 was withdrawn from husband's IRA and deposited in the parties' joint checking account. On August 21, 2014, $200,000 was transferred from the joint checking account to the joint savings account, which had a balance of $648.80 before the deposit. The expert provided no evidence about the balance in the checking account prior to the $250,000 deposit, the purpose for which the deposit was made or the use of the $50,000 that was not transferred to the joint savings account.

¶11 If the $60,000 in the joint savings account were not husband's separate funds, then $53,684 of the September 2015 tax payments were made from marital property. The district court was not required to accept the expert's testimony on this issue. The district court could give that testimony the value it thought the testimony should receive. Childers v. Childers , 2016 OK 95, ¶ 18, 382 P.3d 1020. And, for the following reasons discussed, we are not persuaded that funds from husband's separate property, "traced" to deposits in the parties' joint accounts, remained husband's separate property.

¶12 It does appear from the expert's testimony and exhibits that deposits into the parties' joint checking account from husband's IRA on June 16, 2015, exceeded, by $61, the checks written on June 14, 2015, to cover their second quarter estimated tax payments. On the other hand, deposits from husband's IRA did not cover $15,600 of the $282,600 paid on April 14, 2015, in conjunction with the parties' requested extension to file their 2014 tax returns.

¶13 Also problematic with the expert's approach is the number of comparatively large withdrawals from husband's IRA deposited in the parties' joint accounts at times when no tax payments were made. In 2014, husband made five withdrawals from his IRA, $38,000 in April, $50,000 in May, $22,000 in June, $80,000 in July and the $250,000 withdrawal in August previously discussed. Likewise, in 2015 husband withdrew $60,000 in March, $267,000 in April, $91,500 in June, $15,000 in July and $20,000 in September from his IRA. The expert attributes only the April, June and September withdrawals to tax payments. The April withdrawal was $15,600 less than the payment amount; the June withdrawal exceeded the amount paid by $16,000, and the September withdrawal was $53,784 less than the amount paid.

¶14 Viewed in isolation, the three "tax deposits" support to some extent the expert's method of "tracing" tax payments to husband's separate funds. However, it is equally plausible that on ten occasions during this time period husband withdrew relatively large amounts from his IRA, which he deposited in the parties' joint accounts. Those funds, commingled with wife's separate property and other marital income, were used to pay for the parties' living expenses, including their taxes. Only three of those ten withdrawals occurred in proximity with payments made to the IRS and the Oklahoma Tax Commission. Husband's expert conceded that some withdrawals from husband's IRA were properly used by the parties to pay their marital expenses such as utility bills, ad valorem taxes, insurance and similar items. However, the expert offered no explanation as to why the three tax deposits should be treated as traceable separate property, when the other deposits admittedly became marital property.

¶15 Following this expert's theory to its logical conclusion, all of the deposits from husband's separate property could be traced to the parties' marital expenses, the payment of which husband was jointly liable. Husband's expert offered no explanation why only the tax payments, and not payment of all the marital expenses, should be traceable to husband's separate property. Husband does not seek reimbursement for the funds used to pay these other marital expenses, and he would not be entitled to that relief. See Teel v. Teel , 1988 OK 151, 766 P.2d 994 (marital debts can offset value of marital property in determining equitable division of property). Although husband was the only party to call an expert witness, his expert's testimony, even if accepted, does not resolve the issue of the ownership of husband's separate property once the funds were deposited into the parties' joint accounts.

¶16 When a deposit is made into a bank account held in the name of two or more persons, "such deposit, or any part thereof, or any interest thereon, may be paid to either of the persons ...." 6 O.S.2011 § 901(A). Although the deposit of separate funds into a joint account does change the title to those funds, merely placing one spouse's name on the title to separate property does not automatically convert the separate property into marital property. "A transfer by one spouse of separate property to another does not by itself erase the separate character of the asset ...." Larman v. Larman , 1999 OK 83, ¶ 8, 991 P.2d 536. Accord Smith v. Villareal , 2012 OK 114, ¶ 9, 298 P.3d 533 (husband rebutted presumption that real property purchased with his separate funds was intended as a gift to wife merely because it was purchased during the marriage and husband put wife's name on the title). However, the separate nature of property may be lost if it is commingled with other property. See In re Mullendore's Estate , 1956 OK 81, 297 P.2d 1094 (property devised to another lost its separate character when the proceeds from the sale of that property were commingled with testatrix's other funds in her bank account). The classification of the property depends on the facts of the case.

¶17 Even though it is undisputed that the IRA was husband's separate property, a spouse "may treat separate property in a manner so that it alters their legal relationship to the property, and it becomes property of the marital estate." Standefer v. Standefer , 2001 OK 37, ¶ 16, 26 P.3d 104. Separate property "retains its separate status during coverture because it is maintained in an uncommingled state as a spouse's individual property." Thielenhaus v. Thielenhaus , 1995 OK 5, ¶ 9, 890 P.2d 925.

¶18 Here, the withdrawals from husband's IRA were not deposited into a separate account but into an account jointly owned by husband and wife and commingled with wife's separate property. The taxes and the parties' living expenses were paid from the joint account. According to this record, the only source of deposits into the joint account, other than deposits from husband's IRA, came from marital property, that is, husband and wife's earned income during the marriage, and wife's separate property - gifts and distributions from her parents and their business. Absent an agreement between the parties to use wife's income to pay living expenses and husband's separate property to pay income taxes, there is no basis to distinguish joint account funds to pay living expenses from joint account funds used to pay the parties' income tax liability. There is no such agreement in this record.

¶19 Further, when husband withdrew funds from his IRA, he incurred a tax liability. Husband's expert testified that the withdrawals from husband's IRA during this time were generally made without withholding the taxes due on the withdrawal. It does not appear that husband treated this liability as his personal obligation for which he filed a separate tax return. The tax due on these withdrawals was treated as the obligation of both parties and included in the joint return the parties filed for 2014.

¶20 Finally, wife paid $109,795 for the 2015 tax year. The expert identified $37,903 of wife's separate funds that she used to pay those taxes. The difference is $71,892. Nonetheless, husband argues that wife used $115,994 of his separate money to pay her taxes and that he is entitled to that entire amount.

¶21 This not a case where proof of a gift of marital property to one spouse from the other is necessary, as husband argues. The deposits from husband's IRA were used to pay marital debts for which he was personally liable. "The elements necessary to establish an inter vivos gift" include "freedom of will on the part of the donor." In re Estate of Estes , 1999 OK 59, ¶ 29, 983 P.2d 438. Discharging one's personal liability, even if the debt is owed jointly with a spouse, does not constitute the "freedom of will" necessary for an inter vivos gift. In addition, a "gift must be gratuitous and irrevocable and go into immediate and absolute effect with the donor relinquishing all control." Id . Husband's "gift" was deposited into a joint account over which he retained control.

¶22 We have reviewed the record and find that the evidence produced at the hearing on this issue supports the district court's decision. It is not disputed that the parties maintained joint accounts and that the contested tax payments were made from the parties' joint checking account. It is not disputed that wife earned approximately $200,000 per year during this time and deposited all of her paychecks into the joint accounts. And, it is not disputed that annual gifts from wife's parents to the parties and wife's distribution of her separate property from her family's business were deposited into the joint accounts. All of these funds were commingled in the joint checking account and were used to pay the parties' utility bills, ad valorem taxes, husband's substantial medical bills, insurance bills and other household expenses, including the parties' income tax liability. "Both parties liquidated their personal holdings and combined the accumulation to jointly [pay their debts]." Johnston v. Johnston , 1968 OK 47, ¶ 14, 440 P.2d 694.

¶23 Money, once combined, "becomes a fungible unidentifiable property." State ex rel. Okla. Bar Ass'n v. Combs , 2007 OK 65, n.24, 175 P.3d 340. The fungible character of the money deposited into the parties' joint accounts defeats husband's attempt to "trace" the payment of the parties' joint tax liability to a particular source, including the deposits from husband's IRA.

II. Husband's Additional Tax Issue

¶24 Husband argues that the district court erred in refusing to order wife to reimburse him for $9,625 husband claims he had to pay in taxes because wife filed a separate tax return, "married filing separately," for 2015. There is no dispute that if the parties had filed a joint return, as they had in prior years, their cumulative tax liability would have been $9,625 less. However, there is evidence in this record showing that wife separately filed her return because husband's agents refused to communicate with her concerning the filing of their 2015 return. Based on our review of this evidence, we do not find the district court's ruling to be against the clear weight of the evidence or inequitable.

CONCLUSION

¶25 We have reviewed the record in this divorce action and find that the district court ruling on the tax issues is not unjust, inequitable or clearly against the weight of the evidence. The district court's order is affirmed.

¶26 AFFIRMED .

THORNBRUGH, J., concurs, and GOODMAN, J., concurs in result.

      During this appeal, Mr. McKinney died. The motion to substitute Sarah Jane Gillett and Anne Elizabeth Richmond, McKinney's personal representatives, was granted on October 31, 2018.

      Husband's expert also testified that additional "flow-through" deposits totaling $15,114.20 were made during this time period from sources attributable to husband's separate property. Even if those deposits were treated as husband's separate property, an additional $38,570 of marital property would have been required to cover the September 2015 tax payments.


author: Opinion by Kenneth L. Buettner, Judge:

text:
    OKLAHOMA ATTORNEYS MUTUAL INSURANCE COMPANY, Plaintiff/Appellee, v. David A. COX, Defendant/Appellant,
    Christopher Mansfield ; Gayle Boyle; Sharon C. Hart; Kathryn R. Stewart; Jim McGough; Catherine Welsh, Defendants.
    Case No. 117,480
    Court of Civil Appeals of Oklahoma, Division No. 1.
    APRIL 5, 2019 Mandate Issued: May 1, 2019
    Andrew C. Jayne, Emily C. Krukowski, BAUM GLASS JAYNE & CARWILE, Tulsa, Oklahoma, for Plaintiff/Appellee,
    Ronald E. Durbin, John E. Rooney, Jr., DURBIN LAW FIRM, PLLC, Tulsa, Oklahoma, for Defendant/Appellant David Cox,
    Sean P. Downes, DOWNS LAW OFFICE, Sapulpa, Oklahoma, for Defendant Christopher Mansfield,
    Johnny P. Akers, Frederick S. Esser, LAW CENTER OF AKERS & ESSER, PLLC, Bartlesville, Oklahoma, for Defendants Gayle Boyle, Sharon C. Hart, and Kathryn R. Stewart,
    Stephen L. Andrews, Renee Williams, ANDREW & Williams, P.C., Tulsa, Oklahoma, for Defendants Jim McGough and Catherine Welsh.
   Opinion by Kenneth L. Buettner, Judge:

¶1 This appeal arises from a declaratory action by Plaintiff/Appellee Oklahoma Attorneys Mutual Insurance Company (Insurer) against a former attorney, Defendant Christopher Mansfield (Mansfield), and some of his former clients (collectively "Defendants"), including Defendant/Appellant David A. Cox (Cox). Insurer sought a declaratory judgment stating it was not obligated to defend or cover Mansfield in certain civil suits brought by Cox and other Defendants because Mansfield's conduct giving rise to Defendants' claims was excluded from coverage under the "crime/fraud exclusion" in the policy. Insurer moved for summary judgment. Finding no factual dispute, the trial court granted Insurer's motion. Cox appeals. Because Mansfield's conduct giving rise to Defendants' claims was excluded under the terms of the policy, we hold that Insurer was entitled to judgment as a matter of law and affirm.

¶2 Mansfield was previously licensed as an attorney in the state of Oklahoma. As such, Mansfield regularly received court appointments in probate, adoption, and guardianship matters. In 2009, a court appointed Mansfield as Special Administrator of the estate of Elizabeth S. Cox (the Cox Estate), to which Cox was an heir. In 2010, the same court appointed Mansfield as Personal Representative of the Cox Estate. On January 16, 2014, the Oklahoma Bar Association filed a complaint against Mansfield, alleging misconduct by Mansfield with regard to his management of the Cox Estate. Adopting the recommendation of the Professional Responsibility Tribunal, the Supreme Court of Oklahoma found that Mansfield violated the Oklahoma Rules of Professional Conduct by diverting funds from the Cox Estate without authorization. The Oklahoma Supreme Court suspended Mansfield from the practice of law for eighteen (18) months starting April 13, 2015.

¶3 After the suspension of his law license for his mismanagement of the Cox Estate, Mansfield was accused of similar misconduct regarding other estates. Mansfield entered into agreed judgments in at least five disputes regarding these other estates, totaling in excess of $1 million in judgments against him. The Supreme Court accepted Mansfield's resignation from the Oklahoma Bar January 1, 2016.

¶4 In addition to the professional misconduct proceedings, the United States brought criminal charges against Mansfield for his conduct in managing one of the estates, alleging bank fraud and unlawful monetary transaction. United States v. Mansfield , No. 4:16-CR-00114-1-GKF (N.D. Okla. March 16, 2017). In response to the charges, Mansfield pleaded guilty and agreed to a forty-one-month prison sentence. Mansfield also agreed to pay approximately $400,000 in restitution to the victim estate, as well as another $131,000 in restitution to other allegedly victimized estates--including the Cox Estate. A criminal judgment was entered against Mansfield March 16, 2017.

¶5 Cox filed suit against Mansfield September 12, 2014, alleging negligence, gross negligence, breach of duty by personal representative, deceit/fraud, unjust enrichment, and seeking punitive damages. Cox v. Mansfield , No. CJ-2014-3523 (Tulsa Cty. Dist. Ct. filed Sept. 12, 2014) [hereinafter the Cox suit]. The Cox suit is ongoing. The other Defendants filed suit against Mansfield August 4, 2017, alleging breach of fiduciary duty/legal malpractice and negligence, and claiming respondeat superior on the part of Mansfield's employer. McGough v. Mansfield, Case, No. CJ-2017-3072 (Tulsa Cty. Dist. Ct., default judgment granted November 13, 2018) [hereinafter the McGough suit]. The trial court granted default judgment against Mansfield in the McGough suit November 13, 2018.

¶6 Prior to the allegations of misconduct Mansfield had purchased a "Lawyers Professional Liability Claims-Made Policy" from Insurer for the period of July 13, 2013 to July 13, 2014 (Policy 1). Policy 1 was canceled when Mansfield's law license was suspended. Mansfield then purchased a "Three Year Extended Reporting Endorsement" beginning June 1, 2015 (Policy 2). Insurer was notified of the Cox suit during Policy 1, and of the McGough suit during Policy 2 (hereinafter referenced jointly as "the Policies").

¶7 Insurer filed this action September 18, 2017, seeking a declaratory judgment that it has no duty to defend or cover Mansfield in the Cox or McGough suits. Insurer moved for summary judgment February 5, 2018, alleging there was no dispute as to material fact and it was entitled to judgment as a matter of law. Insurer asserted that Mansfield's conduct giving rise to the Cox and McGough suits was excluded from coverage under the "crime/fraud exclusion" in the Policies. Insurer also obtained a stay of discovery while the motion for summary judgment was pending. After a hearing, the trial court granted summary judgment in favor of Insurer July 11, 2018, and issued an order September 24, 2018. Cox appeals.

¶8 The sole question on appeal is whether the trial court erred by granting summary judgment and holding that Insurer was entitled to judgment as a matter of law because Cox's claims were excluded from coverage under the crime/fraud exclusion in the Policies. Summary judgment will be affirmed only where there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Lowery v. Echostar Satellite Corp ., 2007 OK 38, ¶ 11, 160 P.3d 959. The interpretation of an insurance policy, with its exclusions, is a question of law. Wiley v. Travelers Ins. Co , 1974 OK 147, ¶ 15, 534 P.2d 1293. Questions of law are reviewed de novo , "which affords this Court with plenary, independent, and non-deferential authority to examine the issues presented." Sheffer v. Carolina Forge Co. , 2013 OK 48, ¶ 10, 306 P.3d 544.

¶9 In Oklahoma, the guiding principle in an insurance coverage dispute is that "an insurance policy is a contract." Duensing v. State Farm Fire & Cas. Co. , 2006 OK CIV APP 15, ¶ 18, 131 P.3d 127. Accordingly, the parties to the contract may agree to such terms as they see fit and this Court is not at liberty to rewrite those terms. Id. The terms of an insurance policy should be construed according to their plain meaning, so long as the language is not ambiguous and the construction does not bring about an absurd result. Wiley , 1974 OK 147, ¶ 16, 534 P.2d 1293. Insurance contracts should be liberally construed "in favor of the object to be accomplished." Am. Motorists Ins. Co. v. Biggs , 1963 OK 87, ¶ 18, 380 P.2d 950 (citing 44 C.J.S. Insurance § 297c(1) (1945)). If the provisions of a policy can be construed two ways, the court should construe the terms against the insurer and in favor of the insured. Id.

¶10 An insurer may limit its own risk via the terms of the policy. Wiley , 1974 OK 147, ¶ 16, 534 P.2d 1293 (citing C.P.A. Co. v. Jones , 1953 OK 345, ¶ 23, 263 P.2d 731 ). The general declaration of coverage usually determines the insurer's liability and rights. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 13, 812 P.2d 372. An "exclusion" is a policy term eliminating coverage where it otherwise would have existed under the general declaration. Id. ¶ 13 n. 11. "[P]olicy exclusions are read seriatim; each exclusion eliminates coverage and operates independently against the general declaration of insurance coverage and all prior exclusions by specifying other occurrences not covered by the policy ... In case of doubt, exclusions exempting certain specified risks are construed strictly against the insurer." Id.

¶11 Cox asserted six claims in the Cox suit: (1) negligence, (2) gross negligence, (3) breach of duty by personal representative, (4) deceit/fraud, (5) unjust enrichment, and (6) punitive damages. Cox conceded two of his claims are excluded from coverage--deceit/fraud and punitive damages. This appeal therefore concerns only the four remaining claims.

¶12 Per the "Insuring Agreement" between Insurer and Mansfield, Insurer agreed to pay "money damages" owed as a result of:

any claim or claims first made against [Mansfield] reported to [Insurer] ... relating to the quality of legal services provided, arising out of any act or omission of [Mansfield] in rendering or failing to render, professional services for others in [Mansfield's] capacity as a lawyer, and caused by [Mansfield] or any other person whose acts or omissions [Mansfield] is legally responsible, except as excluded or limited by the terms, conditions and exclusions to this policy. The term "money damages" shall not be construed to mean the return, restitution, or disgorgement of fees paid to, claimed, or retained by [Mansfield.]

Insurer also agreed to "defend any suit against [Mansfield] alleging such act or omission and seeking damages which are payable under the terms of [the Policies]."

¶13 Insurer argues the claims in the Cox suit are excluded from coverage because Mansfield's conduct giving rise to the claims falls under the crime/fraud exclusion. This exclusion states that the Policies do not apply "to any claim arising out of any dishonest, fraudulent, criminal, malicious or knowingly wrongful act or omission or deliberate misrepresentation committed by, at the direction of, or with the knowledge of [Mansfield]." Insurer maintains that Cox's claims for negligence, gross negligence, unjust enrichment, and breach of duty "arise out of" Cox's fraudulent and/or criminal conduct.

¶14 Here, the language of the crime/fraud exclusion is not ambiguous on its face. The parties do not dispute the meaning of the words "dishonest, fraudulent, criminal, malicious or knowingly wrongful" and agree that all such conduct should be excluded from coverage. Instead, the parties disagree on whether Mansfield engaged in separate, non-fraudulent/non-criminal behavior that gives rise to additional liability.

¶15 At summary judgment, the moving party has the burden to establish that no dispute as to a material fact exists. Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100. The non-moving party does not share the same burden, but instead must merely show that, at least by the date of trial, it will be able to present some evidence of its claims. Schovanec v. Archdiocese of Okla. City , 2008 OK 70, ¶ 48, 188 P.3d 158 (citing Copeland v. Lodge Enter., Inc. , 2000 OK 36, ¶ 9, 4 P.3d 695 ).

¶16 Insurer attached thirty-one (31) documents to its motion for summary judgment, including: the Oklahoma Supreme Court ruling suspending Mansfield's law license, the United States' response to Mansfield's Motion for Variance in his criminal proceeding, Mansfield's plea agreement in his criminal proceeding, the judgment in Mansfield's criminal case, and Cox's petition in the Cox suit.

¶17 In order to withstand summary judgment, Cox needed to present evidence indicating he sustained damages from Mansfield's negligent conduct which are separate from those sustained as a result of Mansfield's fraudulent and/or criminal conduct. In response to Insurer's motion for summary judgment, Cox attached only three documents in support: the Supreme Court ruling suspending Mansfield's license, Cox's own petition in the Cox suit, and the docket sheet for Mansfield's criminal proceedings. Cox also later submitted his own affidavit.

¶18 The evidence presented at summary judgment failed to demonstrate that Cox suffered an injury from Mansfield's conduct that was separate from that which has been deemed fraudulent or criminal by the suspension of Mansfield's law license and his criminal conviction. In his petition in the Cox suit, Cox alleges that Mansfield negligently mismanaged the Cox Estate, breached his duty as personal representative by failing to act in the best interest of the Estate, and was unjustly enriched in his role as personal representative. Without providing additional sworn statements or evidentiary materials delineating these harms from those addressed in Mansfield's professional suspension and criminal proceedings, the claims in the Cox suit appear to derive from Mansfield's criminal and fraudulent/knowingly wrongful conduct.

¶19 In response to Insurer's motion for summary judgment, Cox argued (1) that the Supreme Court never concluded that Mansfield "misappropriated" funds from the Cox Estate, and (2) that Mansfield was never found to have "embezzled" money from the Cox Estate. Though these statements may be true, they are not conclusive in establishing that Cox's claims are covered by the Policies.

¶20 It is true that the Supreme Court did not find that Mansfield "misappropriated" funds from the Cox Estate, but the court did find that Cox had "commingled" and "converted" funds from the estate. State ex rel. Okla. Bar Ass'n v. Mansfield , 2015 OK 22, ¶¶ 9-30, 350 P.3d 108. The Supreme Court made this determination because Cox's transfer of funds would have likely ultimately been approved by the probate court--though he failed to seek permission beforehand--and because there was no indication that Mansfield had "sought to intentionally inflict grave economic harm upon the Cox Estate." Id. ¶ 30. The Supreme Court found that Mansfield's conduct with regard to the Cox Estate fell short of "purposely depriv[ing] a client through deceit and fraud ," but still found that Mansfield was culpable and deserving of discipline. Id. ¶¶ 18, 49 (quoting State ex rel. Okla. Bar Ass'n v. Combs , 2007 OK 65, ¶ 15, 175 P.3d 340 ).

¶21 Further, though Mansfield's criminal conviction was primarily based upon his actions regarding another estate, his diversion of funds from the Cox Estate contributed to both his plea and sentencing. As stated in Mansfield's plea agreement, the criminal court was "not limited to the amounts alleged in the count(s) to which the defendant is pleading guilty" in determining restitution to be paid, but was permitted to include other relevant conduct indicated in the plea agreement. United States v. Mansfield , No. 4:16-CR-00114-1-GKF (N.D. Okla., plea agreement entered Nov. 15, 2016). Mansfield's plea provided that restitution was due to several other victim estates, including the Cox Estate, and that the acts committed against these other estates "gave rise to [the] plea agreement." Id. In rendering judgment, the criminal court ordered that Mansfield pay restitution to the other victim estates, including $5,225.53 to the Cox Estate. Id. (judgment entered March 16, 2017).

¶22 These findings of professional culpability and criminal guilt by the Oklahoma Supreme Court and the federal court are highly probative on the issue of whether Mansfield's conduct giving rise to the Cox suit comes within the purview of the crime/fraud exclusion in the Policies. Cox does not argue that Mansfield's conversion of funds from the Cox Estate was not "knowingly wrongful" or a "deliberate misrepresentation," but instead argues that there was other, lesser conduct that harmed Cox. In order to withstand summary judgment, Cox needed to present evidence that would show that he suffered a harm separate from that incurred as a result of the conduct for which Mansfield was disbarred and criminally convicted, i.e. that Cox was harmed from some negligent conduct apart from his conversion of estate assets. Cox made no such showing, and instead relied solely on his own allegations and the findings in the aforementioned proceedings against Mansfield. Cox therefore did not meet his burden.

¶23 Because the record fails to indicate that the claims in the Cox suit arise from conduct separate from that which has already been deemed knowingly wrongful or criminal, Cox's claims are excluded from coverage under the crime/fraud exclusion in the Policies. The trial court therefore properly concluded there was no dispute as to a material fact and Insurer was entitled to judgment as a matter of law.

¶24 AFFIRMED.

GOREE, C.J., and JOPLIN, P.J., concur.

      The other Defendants in this case are interested persons with regard to these other allegedly mismanaged estates, whether as heirs, representatives, or decedents.

      In accordance with Oklahoma Supreme Court Rule 1.1(d), this Court reviewed the online district court docket via the OSCN website and took note of the disposition of the case.

      The policy provisions quoted here are identical in Policy 1 and Policy 2.


author: ORTEGA, P. J.

text:
    David Lee COX, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
    A158581
    Court of Appeals of Oregon.
    Argued and submitted February 16, 2017. May 1, 2019
    Daniel J. Casey, Beaverton, argued the cause for appellant. Also on the briefs was Kenneth A. Kreuscher. David Lee Cox filed the supplemental brief pro se.
    Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, Jonathan Schildt, Assistant Attorney General, and Andrew Lavin, Assistant Attorney General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Powers, J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Petitioner, an inmate at Oregon State Penitentiary (OSP), was convicted of aggravated murder and possessing a weapon in a correctional institution, ORS 163.095(2)(b) ; ORS 166.275, for the fatal prison-yard stabbing of Davis, another inmate. Petitioner was sentenced to death and, on direct review, the Supreme Court affirmed those convictions and the penalty. State v. Cox , 337 Or. 477, 98 P.3d 1103 (2004), cert. den. , 546 U.S. 830, 126 S.Ct. 50, 163 L.Ed.2d 81 (2005). Petitioner now appeals the judgment of the post-conviction court rejecting claims of inadequate and ineffective assistance of trial counsel during the guilt and penalty phases.

Petitioner raises numerous assignments of error on appeal, but we address only one. That assignment relies on the post-conviction court's finding that McPhail, a witness for the state, lied at petitioner's criminal trial. McPhail testified during the guilt phase that petitioner's killing of the victim was part of a murder-for-hire conspiracy involving another inmate (Graham) and members of the Lakota Club, which is a club for Native Americans incarcerated at OSP to socialize and participate in religious ceremonies. At petitioner's post-conviction trial, McPhail testified that he made up the murder-for-hire plot, and the court found that that testimony was closer to the truth than his testimony at the criminal trial. In petitioner's view, his defense counsels' failure to investigate before trial McPhail's conspiracy assertion resulted in the failure to call witnesses at trial who could have refuted the state's murder-for-hire theory. That failure, he contends, meant that his defense counsel were constitutionally inadequate and ineffective. Reviewing for legal error and bound by the post-conviction court's findings of historical fact if supported by evidence in the record, Montez v. Czerniak , 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014), we agree with petitioner that defense counsel failed to investigate McPhail's claims and that, had counsel done so, they would have called a prison official familiar with the Lakota Club who would have contradicted McPhail's claims. Accordingly, defense counsels' representation was inadequate under Article I, section 11, of the Oregon Constitution, and we consequently reverse and remand the post-conviction judgment as to the aggravated murder conviction.

In the prison yard at OSP, petitioner fatally stabbed Davis, pushing a shank almost five inches into Davis's back, with such force that it lifted Davis to his toes. That petitioner stabbed Davis was not in dispute. What was disputed was whether petitioner intentionally killed Davis; petitioner's defense theory was that, because Davis had previously threatened to kill and had pulled a shank on petitioner, petitioner meant only to injure Davis-to give him the "worm," as they say in the facility-so that prison officials would transfer Davis to another facility for his protection. At most, petitioner argued, he was only guilty of manslaughter. The state, on the other hand, advanced a theory that petitioner had a combination of two motives for intentionally killing Davis: (1) petitioner, who was considered a "heavyweight" convict (an inmate who demanded respect) at OSP, killed Davis-who had pulled a shank on petitioner and owed him money-in order to maintain his status within the prison; and (2) petitioner was paid $ 5,500 in drugs by the Lakota Club to kill Davis, who had "burned" the club and Graham in their illicit tobacco and heroin dealings at OSP.

The murder-for-hire plot involving the Lakota Club-described by the post-conviction court as the "critical issue" in petitioner's claims of inadequate assistance of counsel-is the focus of this appeal. We therefore begin with the testimony of McPhail, the only inmate witness who testified directly about the murder-for-hire theory. At trial, McPhail claimed that two of the club's members, Pope and Kentta, sharpened a shank on the concrete floor of the clubhouse while he kept watch. He described Davis's exchange of heroin for tobacco with the Lakota Club and said that Davis lied to the club about obtaining heroin from Graham rather than a guard, and that Davis lied to Graham about obtaining tobacco from the Lakota Club rather than a guard. McPhail further testified that Davis was late in repaying the club with heroin, therefore "burning" the club. McPhail explained that, consequently, the club coordinated with Graham to arrange for petitioner to stab Davis, and that he instructed Pope to deliver the shank to petitioner and to relay instructions on how to stab Davis (below the ribs and in the liver).

Throughout his testimony, McPhail spoke of his role as the club's "war chief"-that he was "second in command" to the club's chief, Kentta, and that prison officials believed he was responsible for setting up sports activities and the protocol for the club's religious ceremonies but that his actual job was to mediate between club members, be the "first one in line" to fight nonclub members, and to pass out weapons or use weapons himself. The state asked McPhail, "as a result of being in this position of being second in command, were you also aware of the illegal-the tobacco smuggling, the drug sales that the club was involved in?" McPhail answered that he was, and that, as the club's "war chief," he had experience assaulting other inmates, which explained his ability to instruct Pope on the proper way to stab another person.

Petitioner was represented by Bostwick and Grefenson. On cross-examination, Grefenson made efforts to impeach McPhail, namely by questioning McPhail's assertions about having assaulted multiple inmates; by pointing out, and getting McPhail to admit, that he lied to investigators initially about not knowing about the Davis stabbing and that McPhail's understanding of the events changed from hearing rumors to being involved in a plot to kill Davis; and by pointing out that McPhail did not fully admit to participating in the claimed conspiracy until six or seven weeks before trial. Grefenson also elicited acknowledgement from McPhail that he had not been charged with murder for his involvement in the conspiracy and that he had asked for a transfer from Eastern Oregon to the Willamette Valley to be closer to his family.

After McPhail's testimony, the state called as a witness the lead detective for the murder investigation, Duvall. Among other things, Duvall testified to the investigative contacts and interviews with McPhail, noting that the first two times McPhail was interviewed, he had "nothing of substance" to say about the Davis stabbing. At McPhail's third interview, Duvall explained, McPhail informed him that he was in the Lakota Club clubhouse when the shank was being made and that the weapon was to be used to kill someone but he did not say who; that Davis owed petitioner money; that he overheard another inmate, Pope, tell petitioner how to stab Davis with the shank; and that shortly before the stabbing took place he learned that the victim was to be Davis. Duvall also explained that McPhail described himself as the Lakota Club's war chief and that he was tired of doing things as the war chief that kept him in the "convict code" and in prison. Duvall also testified that, in a follow-up interview later that month, McPhail stated that he knew that the shank was made in the clubhouse, that it was intended to be used against Davis and, for the first time, he introduced Graham as a participant in drug dealings with the club and Davis.

On cross-examination, Duvall acknowledged again that McPhail had initially denied any knowledge or involvement in the stabbing. Petitioner's defense counsel pointed out that Duvall had testified that McPhail, in the beginning, "emphatically denied having any information about the case at all," and Duvall acknowledged (as he had on direct) that initially McPhail had not spoken of a conspiracy, but later provided details of participating in the conspiracy. Specifically, counsel pointed out that McPhail had said that, after the stabbing happened, McPhail overheard Pope talking about how Pope had told petitioner where to stab Davis, and how that was inconsistent with McPhail's trial testimony that he had himself instructed Pope where to stab Davis before the stabbing occurred. Petitioner's defense counsel elicited testimony from Duvall recounting how McPhail's statements to investigators had progressed from "rumor" about participants in the fatal stabbing to actually witnessing conversations and planning.

Before defense counsel proceeded with their case, the trial court inquired about counsels' readiness to proceed. Counsel indicated that they did not have their own witness list and, when pressed, indicated that they could potentially call back three of the state's witnesses, including McPhail and Duvall, and otherwise needed time to interview and prepare their witnesses. The trial court evinced surprise, given that the case had been pending for a year and a half; the court indicated disbelief that defense counsel had "not talked to these people" or had "investigators talk to these people."

As relevant here, defense counsel called witnesses, including petitioner, to support a manslaughter theory. Among those witnesses, defense counsel called Pope, a member of the Lakota Club and one of the people whom McPhail had implicated in the murder-for-hire plot. Pope disputed McPhail's contention that Lakota Club members were involved in a plot to kill Davis, and denied ever having provided or even seen the shank that petitioner used to kill Davis. He further explained that he was unaware of any club member sharpening the shank in the club and expressed why he would not have participated in such a thing. Pope also explained that members of the Lakota Club would never have used a white inmate like petitioner to conduct its illicit business. According to Pope, inmates "stay within their own" for their business dealings. Pope also disputed McPhail's claim that he was the "war chief" of the Lakota Club.

On cross-examination, the prosecutor asked Pope, who was already serving time for aggravated murder, if he knew that he was "potentially looking at capital murder * * * for supplying the weapon that was used to kill * * * Davis."

The state also elicited testimony from Pope that his own overture to police to provide help with the Davis murder investigation had been rebuffed, and that testifying about another inmate could put him in physical jeopardy.

After a jury trial in two phases (guilt and penalty phases), petitioner was convicted of the charges and sentenced to death. Defense counsel filed a motion for a new trial based on an irregularity in the proceedings, i.e. , the inconsistencies in McPhail's police interviews and his trial testimony, arguing that prosecutors should have known that McPhail's testimony was perjured and that no grand jury proceedings for aggravated murder had been initiated against McPhail, Graham, Kentta, and Pope. That is, the crux of their argument was that the prosecution had violated ethical rules and petitioner's constitutional rights by presenting McPhail as a witness to testify about the murder-for-hire scheme. The court denied the motion.

Petitioner appealed that conviction and, on direct review, the Supreme Court affirmed. Cox , 337 Or. at 479, 98 P.3d 1103. At some point, McPhail communicated by affidavit that he had lied about the murder-for-hire plot at petitioner's trial. Petitioner sought post-conviction relief, claiming, among other things, that his trial counsel were constitutionally inadequate because they failed to adequately investigate, locate, interview, and prepare witnesses that would have, among other things, refuted McPhail's claim that he was the war chief or an officer of the Lakota Club and that, although defense counsel were aware that the state would call McPhail as a witness, they failed to interview McPhail or other witnesses who would have impeached his testimony, and failed to conduct an adequate cross-examination of McPhail.

McPhail testified at the post-conviction trial that his testimony at petitioner's criminal trial was "entirely made up." He said that he lied about being "war chief" and about standing watch in the club room while the murder weapon was being made; weapons would not have been allowed to be made in the club room, because doing so would jeopardize the club and its members. McPhail also admitted that the club would never have hired a white inmate; "[i]f it was Native business, it would have been handled by Native people." In fact, McPhail testified, he knew little of the fatal stabbing. That is, he had "an idea" of what happened, but was not "privy to any of the * * * information exactly why it happened or anything." When asked how he had learned enough to make up the murder-for-hire story, he replied that he had heard some things through the prison "grapevine" and that a prison captain, one of the prosecutors, and Duvall "pretty much hand-fed [him] everything [he] needed to know; and, from there, I just adjusted my testimony."

Several inmates who did not testify at petitioner's criminal trial corroborated McPhail's post-conviction testimony. As relevant to the murder-for-hire theory, those witnesses testified that, if they had been asked about McPhail, they would have provided the following information to defense counsel or their investigators, or at the criminal trial:

• Ollison, a Native American who had many Native friends at OSP, testified that McPhail was not the club's "war chief"; although a Native, he was laughed about by his Native friends and shunned because, among other reasons, he was a homosexual. Defense counsel did not interview Ollison until he was transported to Salem for the criminal trial, and Ollison testified that, by the time he arrived at Salem for the trial, he was confused, agitated, and in a "rough emotional state."
• DeFrank, an inmate, attested by affidavit that the Lakota Club would never have a hired a "white dude." Defense counsels' investigator interviewed DeFrank, learning that DeFrank contradicted statements by Lust, a witness who testified for the state.
• Dennis, a member of the Lakota Club and in custody at OSP when Davis was killed, testified that McPhail was not the war chief and that the club would not have enlisted a white inmate do its "dirty work" because "we take care of our own things" and it would make the club look weak.
• Hill, a Lakota Club member, testified that McPhail was not on the club's council, much less its "war chief." Hill testified that, "[e]ven before McPhail turned State's witness he was universally held in low regard by the Native American inmates because of his open homosexuality and reputation for scamming." Hill was never interviewed by defense counsels' investigators or by defense counsel.
• Allen, a Lakota Club member, testified that defense counsels' investigator had interviewed him, and that McPhail was neither on the club's council nor its war chief.
• Kentta, a member and the elected chief of the club, testified that McPhail was neither war chief nor a council member because McPhail was a homosexual, not trusted, and was known for being a liar. Further, according to Kentta, no one from the club was involved in the killing and the club would have taken care of its own business.

The post-conviction court found that, except for Hill, all of those witnesses were contacted by the "defense team."

At the post-conviction trial, Geer, a prison official who was responsible for oversight of the Lakota Club when Davis was stabbed, testified to what he would have testified to had he been called as a witness at petitioner's criminal trial. According to Geer, many of the Native inmates at OSP viewed McPhail as a "parasite" and as not trustworthy. Further, McPhail "never held office of any kind in the Lakota Club." Geer also testified that it was his understanding that the Lakota Club would not have involved a white inmate in its "business dealings"; he could not recall the Lakota Club ever going outside of the club's core group of members to accomplish anything "shady." The "core group" members "are very, very inward oriented that way," Geer testified, and would keep their business dealings "in house." On cross-examination, the state asked Geer if he was talking about the "club as a whole" and whether Geer could say that not any "particular member of the Lakota Club would follow" the club's prohibition against using non-members to conduct its business dealings. Geer answered that he could not testify to whether an individual member of the club would involve a white inmate in his business dealings.

The state called Bostwick, one of petitioner's trial attorneys, to testify. Bostwick testified that he learned of the murder-for-hire theory shortly before trial-"weeks, maybe a couple of months." Bostwick testified that he did not recall any investigation into the theory, but thought they had attempted to discredit it by pointing out McPhail's inconsistent statements. Grefenson, petitioner's other trial attorney, said in deposition testimony that the "whole murder-for-hire theory was something that I felt came up right before trial and was disingenuous." Further, Grefenson testified that he had read the police reports implicating McPhail, but that the murder-for-hire theory was something that "came to fruition close to the trial" and that he was "pretty surprised that the prosecution actually pinned its case on" McPhail. Grefenson did not recall directing defense counsels' investigators to interview members of the Lakota Club about McPhail's involvement with the killing. For his part, Bostwick had no recollection of interviewing Ollison, DeFrank, Dennis, Hill, or Allen. About Kentta, Bostwick testified that he remembered that Kentta was an officer in the club and involved in the case, but did not have any recollection beyond that.

In a lengthy letter opinion, the post-conviction court rejected all of petitioner's claims. Importantly, the court found that McPhail had never been the Lakota Club's "war chief" and that it was "unlikely that a Native American club would have hired [petitioner] to do its business." Moreover, the court found that the state "relied heavily on McPhail's testimony" and that the state's comments in opening and closing arguments, and in its appellate brief for petitioner's automatic and direct appeal to the Supreme Court, "illustrate that the murder for hire theory was at the heart of the [s]tate's case." Further, it was "clear that the defense did not anticipate that the prosecution would rely on the testimony of * * * McPhail and present a theory of murder for hire. Counsel was surprised in the opening statement." However, with regard to the failure to investigate McPhail's claims and the general quality of the investigation, which would have led defense counsel to call witnesses who would have contradicted McPhail's trial testimony, the court pointed out that many of the witnesses who testified at the post-conviction trial were inmates, and because "inmate witnesses create inherent difficulties for lawyers because inmates change their stories" and there are "many opportunists," it is "difficult to sift out information that is true and information that is just being thrown out there because an inmate wants to gain an advantage somehow." Further, the court concluded that petitioner's sole proof of a failure to investigate McPhail's claims was petitioner's contention that defense counsel failed to interview the witnesses who testified at the post-conviction trial. Because, the post-conviction court found, "counsel did in fact contact, if not interview, the majority of these witnesses, this aspect of [p]etitioner's claims fails for lack of proof."

As for the witnesses themselves, the post-conviction court concluded that defense counsels' decisions were not unreasonable, for a few different reasons. It was reasonable to not call Ollison because of his emotional state; it was too much to ask of reasonable counsel to find Hill among the 250 inmates on the investigation's list of inmates; Dennis was not a credible witness; Allen had "little first-hand knowledge"; and, although Allen would have testified that McPhail was not the "war chief," Pope testified to the same thing at the criminal trial. As for DeFrank and Kentta, the court concluded that defense counsel had good reasons not to call them, essentially because their testimony would do more harm than good. The post-conviction court's findings and conclusions regarding whether counsel was inadequate for not finding and calling Geer to testify were slim. The court credited Geer's testimony, finding that "the Lakota Club would not have gotten an outsider to take care of their business [dealings]," and it agreed with petitioner that Geer "might have provided helpful testimony to impeach McPhail." The court, however, disagreed with petitioner that "counsels' failure to [locate and call] this single witness is by itself inadequate assistance of counsel."

The post-conviction court concluded that, in any event, even if the murder-for-hire theory were or had been discredited, it was unlikely that the jury would not have convicted petitioner of aggravated murder. That is, the court reasoned, the physical evidence of the killing itself was enough for a jury to find the element of intent for the murder and it was unlikely that the jury would have believed that petitioner intended only to wound Davis. However, the court acknowledged that, even though motive is not an element of the crime, it is important to a jury, stating that "human beings tend to evaluate events from a moral perspective and so the jury might have been affected by the difference." See State v. Fong , 211 Or. 1, 25, 314 P.2d 243 (1957) ("Motive is never a necessary element of proof * * *, though it is frequently a very important element when the prosecution is compelled to rely entirely on circumstantial evidence.").

We turn to the relevant law. A petitioner is entitled to post-conviction relief based on inadequate assistance under Article I, section 11, if the petitioner shows two things: (1) that trial counsel failed to exercise reasonable professional skill and judgment and (2) that the petitioner suffered prejudice as a result of counsels' inadequacy. Trujillo v. Maass , 312 Or. 431, 435, 822 P.2d 703 (1991). A petitioner demonstrates prejudice if he shows that his defense counsel's failure had "a tendency to affect the result of his trial." Lichau v. Baldwin , 333 Or. 350, 359, 39 P.3d 851 (2002). More precisely, "because many different factors can affect the outcome of a jury trial, in that setting, the tendency to affect the outcome standard demands more than mere possibility, but less than probability," or in other words, "the issue is whether trial counsel's acts or omissions could have tended to affect the outcome of the case."

Green v. Franke , 357 Or. 301, 322-23, 350 P.3d 188 (2015) (internal quotations, emphases and citations omitted).

As we explain below, this case-as we resolve it on appeal-is one of "failure to investigate." The Supreme Court recently explained the applicable inadequate assistance of counsel standards for such cases in Richardson v. Belleque , 362 Or. 236, 406 P.3d 1074 (2017). There, the petitioner was sentenced as a dangerous offender who suffered from a "severe personality disorder" under ORS 161.725(1), but, during the presentence hearing, the petitioner's defense counsel cross-examined Suckow, a psychiatrist who opined on behalf of the state that the petitioner had a severe personality disorder, without having investigated the petitioner's background or consulting an expert before the hearing. Nor did defense counsel introduce evidence from a defense expert that could have disputed the "severe personality disorder" diagnosis at the hearing. 362 Or. at 238, 406 P.3d 1074. The petitioner sought post-conviction relief, alleging constitutionally inadequate assistance of counsel. At the post-conviction trial, the petitioner adduced a written report from a clinical psychologist, Dr. Cooley, in which Cooley indicated facts and opinion that would have contradicted the state's psychiatrist. The post-conviction court granted relief, concluding that the petitioner's defense counsel had provided inadequate assistance by failing to reasonably investigate and consult with an expert before deciding that cross-examination alone was appropriate and by failing to call a defense expert to rebut the state's psychiatrist witness who had testified that he had diagnosed the petitioner with an antisocial personality disorder. Id. at 248-53, 406 P.3d 1074. The Supreme Court affirmed that decision. Id. at 268, 406 P.3d 1074.

The court explained that, "when a petitioner seeks to establish that counsel failed to exercise reasonable skill and judgment, what constitutes adequate performance is fact-specific and dependent on the 'nature and complexity of the case.' " Id . at 255, 406 P.3d 1074 (quoting Johnson v. Premo , 361 Or. 688, 701, 399 P.3d 431 (2017) ). Further, the court noted the well-settled principle that a reviewing court will not " 'second-guess the lawyer in the name of the constitution.' " Richardson , 362 Or. at 255, 406 P.3d 1074 (quoting Johnson , 361 Or. at 702, 399 P.3d 431 ). However, the court explained that, because a reviewing court must not " 'ignore decisions made in the conduct of the defense which reflect an absence or suspension of professional skill or judgment,' " tactical decisions "must be based on 'a reasonable investigation.' " Richardson , 362 Or. at 255-56, 406 P.3d 1074 (quoting Johnson , 361 Or. at 702, 399 P.3d 431 ); see id . at 257, 406 P.3d 1074 (explaining that the United States Supreme Court, in Wiggins v. Smith , 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), concluded that the necessary predicate to counsel making a decision is an informed choice).

The court also arrived at a formulation of the prejudice prong when criminal defense counsel has failed to adequately investigate before proceeding with a course of action at a presentence hearing. Richardson , 362 Or. at 264, 406 P.3d 1074. Noting that the court in Green rejected a probability standard, it likewise rejected the state's argument that, in a failure to investigate case, a petitioner must prove, as a preliminary step, that " 'it is reasonably probable that a competent attorney would have presented the evidence' that would have been uncovered through an adequate investigation." Id . Instead, with Green instructing that the "tendency to affect the verdict" standard demands more than a mere possibility, but less than probability, the court held that (1) "it was more than a mere possibility that competent defense counsel could have used the information from Cooley's report in ways that 'could have tended to affect' the outcome of the dangerous-offender hearing," (2) "there was 'more than a mere possibility' that counsel could have used that information in cross-examining Suckow or by calling that expert to the stand or doing both"; and (3) "[g]iven the uses to which counsel could put the information from the Cooley report, there was more than a mere possibility that the jury could have rejected the state's contention that petitioner suffered from a 'severe personality disorder.' " Id . at 267-68, 406 P.3d 1074.

Petitioner argues on appeal that the post-conviction court erred by concluding that defense counsel did not render inadequate and ineffective assistance by "failing to obtain and supervise qualified investigators, failing to prepare for trial, and failing to locate, interview, and obtain testimony from numerous easily identifiable witnesses who could have impeached the prosecution's murder-for-hire theory, supported the defense's lack-of-intent-to-kill theory, and undermined the prosecution's penalty-phase case." Included in that assignment are witnesses identified by petitioner who testified at the post-conviction trial but not the criminal trial and who, according to petitioner, would have provided helpful testimony to refute McPhail's claims. We focus our attention here on the alleged failure of defense counsel to address the state's murder-for-hire theory by failing to interview potential witnesses who could have provided information about the Lakota Club and the failure of defense counsel to call Geer as a witness.

The state responds that, even assuming that defense counsel acted deficiently in their investigation, petitioner "cannot establish a basis for relief unless [the deficient investigation] somehow affected counsel's actual performance at trial." (Emphasis supplied by the state.) Thus, the state posits, any failure in the investigation matters only if petitioner identifies and proves some "actual, concrete error or omission that counsel committed at the trial as a result of the failure." In the state's view, that means that the post-conviction court's approach, in which it ruled on the investigation claims by addressing "separately petitioner's claims that his counsel should have contacted and called specific witnesses at trial," was the right one. For each of the witnesses who petitioner argues could have been helpful to refute the state's murder-for-hire theory, the state advances reasons why defense counsel would have made tactical decisions not to call them as witnesses.

Given the nature and complexity of the aggravated murder charge and the information available to defense counsel, we conclude that defense counsels' decision not to investigate McPhail's assertions was not a reasonable exercise of professional skill and judgment. Defense counsel were aware, before trial, that McPhail was recounting a murder-for-hire theory based on his position as "war chief," that investigators had interviewed him multiple times, and that he would be a witness for the state's case against petitioner. Indeed, defense counsel learned of the theory "weeks, maybe a couple of months" before trial, and described their sense that the theory appeared not to be legitimate. The theory as articulated by McPhail in the police interview provided a distinctly different view from what other witnesses were recounting. That theory involved particular claims about how the Lakota Club conducted illegal business (its "business dealings"), whether it would have involved a white inmate in its illicit activities, who some of its officers were, information about other club members, and McPhail's position in the club. Yet, the record does not reflect that defense counsel proceeded to investigate the veracity of those claims, even though McPhail was on the state's witness list. The best explanation defense counsel could provide was that the prosecutors did not inform defense counsel before trial that they would advance the murder-for-hire theory as a critical part of their case. That the prosecutors failed to share how they would proceed with the case, however, did not excuse defense counsel from investigating McPhail's claims in preparation for trial when defense counsel was aware of those claims and believed them to be illegitimate. Accordingly, we conclude that defense counsels' knowledge of McPhail's police interviews and their knowledge that McPhail was on the state's witness list would spur a reasonable attorney to investigate McPhail's claims further to prepare for the capital murder trial.

Specifically, two elements of McPhail's murder-for-hire theory were readily ascertainable as untrue in the course of further investigation: that McPhail was "war chief" and that the Lakota Club would have hired a nonmember to conduct its illicit activities or assault another inmate. In the post-conviction trial, multiple inmates who were Lakota Club members testified contrary to those two aspects of McPhail's story and that they would have been willing to discuss those issues with petitioner's investigators if asked. Those inmates testified that McPhail was not the war chief and was not on the council, and that the reasons that he was not the club's war chief or on the council were that club members saw McPhail as untrustworthy and because he was a homosexual. In other words, McPhail, in his police interviews, said that he, as war chief of the Lakota Club, was privy to the "business dealings" of the club, witnessed the sharpening of the murder weapon, and passed it along to Pope with instructions on how to use it to inflict the most damage-yet the record reflects that neither defense counsel nor their investigators ever interviewed any club members about the veracity of McPhail's story relating to his position in the club or whether he was war chief, or asked about the club's practice of engaging outsiders in its business dealings.

Had defense counsel investigated McPhail's claims, they would have discovered that McPhail was not the war chief and that it was unlikely that the Lakota Club would have hired petitioner to do its "business." With that information, reasonable counsel would have called Geer, who was a prison official, as a witness to refute McPhail's claim that he was the war chief and to testify that it was unlikely that the club would have hired a white inmate to conduct its illicit business. We reject the state's contention that counsel would have had "good reason to steer clear of Geer's testimony" because Geer could not categorically deny that any particular member of the club would not follow the club's custom of not engaging outsiders to do its illicit business. Given that the state's theory was that the Lakota Club hired petitioner to murder Davis and that McPhail, by reason of his position in the club, was able to provide a first-hand account of the theory in his trial testimony, it is unlikely that defense counsel would have been dissuaded from calling Geer as a witness based on the fact that Geer could not rule out, or did not have personal knowledge, that an individual club member would assist petitioner in order to counter some hypothetical plot or involvement with Native American inmates that was different from the one testified to by McPhail, and advanced by the state at trial.

Furthermore, the failure to call Geer as a witness prejudiced petitioner. There was more than a mere possibility that, had defense counsel called Geer as a witness, the jury would have rejected McPhail's testimony that a murder-for-hire plot motivated petitioner to intentionally kill Davis. It is likely that Geer's testimony would have caused the jury to disbelieve McPhail's claim that he was the "war chief" and to conclude that it was unlikely that the Lakota Club would have hired petitioner. We disagree with the state's contention that McPhail's status as "war chief" was a minor point. That claim undergirded his entire testimony. That is, among other things, his position as war chief, according to McPhail, allowed him to witness the shank sharpening as he was standing watch, and, because he had carried out assaults because of his position as enforcer, he said that he had instructed Pope on how to stab Davis to pass on to petitioner. If a jury disbelieved that McPhail was the "war chief," there is little reason that it would believe much else about the murder-for-hire plot.

The state also asserts that, because Pope testified that the club would not engage the services of a white inmate, any additional testimony on that point would have been minor, and thus its absence would not have been prejudicial. Again, we disagree. On cross-examination, the state confronted Pope with (1) the fact of his existing aggravated murder conviction, (2) that testifying to facts consistent with McPhail's testimony would implicate him in the murder-for-hire plot, subjecting him to criminal liability with a possibility of the death penalty, and (3) that testifying against another inmate would put him in jeopardy of being killed at OSP or another correctional institution. Geer, had he testified, would have contradicted and impeached McPhail's testimony far more effectively than Pope's compromised testimony. As the post-conviction court expressly found, "inmate witnesses create inherent difficulties for lawyers * * *." Geer presented none of those inherent difficulties.

Finally, we address the post-conviction court's conclusion that, even if the murder-for-hire theory had been discredited, it is "quite a stretch" to conclude that the jury would not have found that petitioner had the requisite intent to convict him of aggravated murder. That conclusion was based primarily on the physical evidence of the killing-the fact that petitioner pushed the shank almost five inches into Davis's back with such force that it lifted the victim to his toes. For the following reasons, we conclude that defense counsels' failure to discredit the murder-for-hire theory prejudiced petitioner.

To begin with, we agree with the post-conviction court that the murder-for-hire theory was "at the heart" of the state's case and that there "is no question but that the [prosecution] relied heavily on McPhail's testimony." The state included the theory in both its opening and closing arguments, going so far to assert in its rebuttal to petitioner's closing argument that petitioner

"has assailed, and I expected him to do so, Kenneth McPhail. Why wouldn't you? Because it lays out the most compelling evidence of the plan that was executed by [petitioner]. And because I think jurors, when they make tough decisions, demand evidence and demand that there is physical evidence and witnesses to corroborate or support one another."

Further, the importance of the theory to the state's case is confirmed in the positions it took on petitioner's direct appeal, and that the Supreme Court described the facts of the fatal stabbing in a way that suggests that the murder-for-hire theory was instrumental to the state's case. See Cox , 337 Or. at 480-81, 98 P.3d 1103. Specifically, the court observed that testimony concerning the murder-for-hire plot "bore directly on [petitioner's] intent -the primary issue in the guilt phase." Id . at 494, 98 P.3d 1103 (emphasis added).

We also note that the jury was called upon to evaluate a killing inside the state penitentiary, in which petitioner, the victim, and many of the witnesses were inmates. The state sought to establish motive as a critical part of its case. The factual context for motive would likely be unfamiliar to jurors, who were called upon to assess the credibility of inmate witnesses.

Further, the state's other theory for why petitioner's killing of Davis was intentional-that Davis threatened petitioner, owed him money, and disrespected him, and, therefore, that petitioner, in accordance with the "code of the con," had to retaliate by killing Davis-was not uncontroverted. Inmate witnesses described Davis as untrustworthy, a "maggot," "scandalous," and dangerous, and petitioner adduced evidence and argued at trial that the "code of the con" explained why petitioner could not go to prison authorities to report Davis and, therefore, had to resort to handling Davis's threatening behavior himself. Petitioner also adduced evidence that, if Davis was injured from a stabbing, no one would report him and Davis would be transferred out of OSP. Moreover, a forensic pathologist testified that the stabbing was a single stab and that it is an extraordinarily rare event for a single stab into the back to result in a fatality. Given the ambiguity of the conflict between petitioner and Davis, evidence of Davis's poor reputation, and the forensic evidence of the stabbing, we cannot conclude that there is not more than a mere possibility that the morally and factually unambiguous murder-for-hire theory provided the jury the pathway to find that petitioner intentionally killed Davis. The post-conviction court erred in concluding otherwise.

In sum, we conclude that defense counsel failed to investigate McPhail's murder-for-hire theory and that, had counsel done so, they would have called Geer to contradict McPhail's claims that he was the "war chief" and that the club would have hired a nonmember to murder another inmate. Moreover, petitioner was prejudiced by defense counsels' deficient performance. Accordingly, defense counsels' representation of petitioner was constitutionally inadequate under Article I, section 11.

Reversed and remanded with instructions for post-conviction court to grant relief on aggravated murder conviction; otherwise affirmed.

      The issues addressed in this appeal do not concern petitioner's conviction for possessing a weapon by an inmate in a correctional institution, ORS 166.275.

      For a more detailed recitation of the facts, see Cox , 337 Or. at 479-82, 98 P.3d 1103.

      The evidence to support petitioner's manslaughter theory included, among other things, (1) testimony by a prison supervisor and a retired prison superintendent, who explained the "code of the con" and the circumstances in which inmates are transferred to other correctional facilities or placed in administrative segregation; (2) a pathologist who testified that a stab wound in the back that reaches the aorta is rare and that the odds of a single stab in the area in which Davis was stabbed as being fatal were extraordinarily rare; (3) inmates who testified that Davis was held in low regard at OSP and that Davis threatened petitioner with a shank.

      In its closing argument, the state argued, "[D]oesn't it make sense that a man who's burning the candle at both ends, according to * * * McPhail, * * * Davis, will not be tolerated, and that the generous compensation of $ 5,500 in drugs to [petitioner] is such a motivation to do the job[? Petitioner] was motivated by payment in drugs, and he was not getting paid to simply poke him for something that you can cover with a Band-Aid."

      Given our disposition, we need not reach petitioner's other assignments of error involving claims of inadequate assistance of counsel, and we reject without written discussion petitioner's remaining assignments of error.

      The court found credible the prosecutors' denials that they had presented perjured testimony and found that the matters raised in the motion had been presented to the jury at trial.

      The record appears to support a factual finding that investigators interviewed those witnesses with petitioner's manslaughter defense in mind but does not support a finding that the investigators-or defense counsel-ever inquired of those inmates what they knew about McPhail's murder-for-hire theory or, more specifically, McPhail's role in the Lakota Club.

      Petitioner also asserts ineffective assistance under the federal constitution. We resolve his claims under the state constitution and, therefore, do not analyze the issues here under the federal constitution. Lichau v. Baldwin , 333 Or. 350, 358-59, 365 n. 3, 39 P.3d 851 (2002). In any event, the two analyses are "functionally equivalent." Montez , 355 Or. at 6-7, 322 P.3d 487.

      We refer to defendant, the superintendent of OSP, as "the state" for ease of reference. See Richardson , 362 Or. at 255 n. 1, 406 P.3d 1074.

      Defense counsel, in support of the defense's manslaughter theory, called two prison officials to testify about "the code of the con" and that inmates who are assaulted are often transferred to other correctional facilities for their protection.

      Although we conclude that it is likely that Geer would have been called as a witness to refute McPhail's testimony, it is also possible that, had defense counsel conducted an investigation into McPhail's claims, counsel would have decided that there was an advantage to calling multiple Lakota Club members to contradict McPhail's claims.


text:
    REMENAR and REMENAR
    A166626(S066425)
    Supreme Court of Oregon.
    March 28, 2019
    Review Denied.