author: BAKER, J.

text:
    GREAT RIVER MEDICAL CENTER and Farm Bureau Mutual Insurance Company, Petitioners-Appellants, v. Kimberly VICKERS, a/k/a Kimberly Bertlshofer, as the Administrator of the Estate of Kelly Lynn Reynolds and Guardian of Minor Children, Jade Renee and Savannah Margaret Marie Reynolds, Respondents-Appellees.
    No. 06-1476.
    Court of Appeals of Iowa.
    May 14, 2008.

      Paul Swinton of Morain, Burlingame & Pugh, West Des Moines, for appellants.
    Thomas Reavely of Whitfield & Eddy, P.L.C., Des Moines, for appellees.
    Considered by VOGEL, P. J., and ZIMMER and BAKER, JJ.
   BAKER, J.

This case involves a claim for workers’ compensation death benefits and arises out of the death of Kelly Reynolds, which occurred while she was driving home after reporting for work at her employer, Great River Medical Center. Reynolds was the mother of two young children, Savannah and Jade. The claimant in this case is Kimberly Vickers, the administrator of the Kelly Reynolds’s estate.

Background Facts.

Reynolds had been scheduled to work on January 7, 2003, but on the evening of January 6 called in to work to inform management that she was ill and was inquiring about whether she could take a “low census day” on January 7. A low census day is a system the hospital uses where, when the ratio of hospital personnel to patients is at a certain level, the employee can be relieved of their normal duties without having to claim a sick day. The request was denied, and Reynolds was advised to report to work at 7:00 a.m. for her normal shift.

At 5:00 a.m. on January 7, Reynolds again called the hospital and talked to Tara Poggemiller, the hospital’s staffing specialist, requesting a low census day. This request was denied because low census cannot be determined until 6:00 a.m. for the 7:00 a.m. shift. At 6:00 a.m., Po-gemiller received another call. She claimed it was from Reynolds and that she denied a low census day due to the patient count. Juan, Reynolds’s husband, claimed that he, rather than Reynolds, phoned in at 6:00 a.m. He testified at the subsequent workers’ compensation hearing that Po-gemiller told him that if Reynolds “did not come in and report to work as scheduled that she would no longer be employed at Great River.”

Accordingly, Reynolds prepared to come in for work, which was normally a forty-to sixty-minute drive. Just prior to her shift, Reynolds reported to Cheryl Ann Lambert, her hospital unit director. She observed Reynolds’s ill appearance. Feeling that Reynolds’s apparent illness could imperil patients’ health, Lambert sent Reynolds home. On the drive home, Reynolds was involved in a single-car accident and died.

Lambert also testified about having discussed the hospital’s absenteeism policy with Reynolds. This policy provides for progressive discipline, whereby four incidents of absenteeism over a rolling six-month period is considered excessive. The policy provides that an “incident” is an absence that has not been previously approved by the employee’s supervisor. Sick leave is considered an incident. On the seventh such incident, termination will occur.

Workers’ Compensation Proceedings.

Reynolds’s estate filed a petition requesting death benefits for her two minor children and medical benefits, based on the hospital’s requirement that she report to work or face termination. Following a hearing, an arbitration decision was issued in which the deputy commissioner found that two exceptions to the “going and coming” rule were satisfied — the dual purpose exception and the special errand exception. The deputy therefore held the estate was entitled to death and medical benefits. Upon appeal, the commissioner affirmed, largely adopting the deputy’s findings and decision. The district court subsequently affirmed on judicial review. Great River and its insurance carrier, Farm Bureau Insurance Company, appeal from this ruling.

Standards of Review.

Our review of an industrial commissioner’s decision is for correction of errors at law. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). When we review the district court’s decision, “we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. If they are the same, we affirm; otherwise we reverse.” Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004).

Under chapter 17A of the Iowa Code (2007), the Iowa Administrative Procedure Act, the district court is authorized to review decisions rendered by the industrial commissioner. Bearce v. FMC Corp., 465 N.W.2d 531, 534 (Iowa 1991). The district court may reverse or modify an agency’s decision if the decision is erroneous under a ground specified in the Iowa Administrative Procedure Act, and a party’s substantial rights have been prejudiced. Iowa Code § 17A.19(10). Our role as an appellate court reviewing this agency decision is threefold: (1) determine if the commissioner applied the proper legal standard or interpretation of the law; (2) determine if there was substantial evidence to support the commissioner’s findings; and (3) determine if the commissioner’s application of the law to the facts was irrational, illogical, or wholly unjustifiable. Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 603-04 (Iowa 2005) (discussing the interplay between Iowa Code sections 17A.19(10)(c), (f), and (m)).

We do not apply a “scrutinizing analysis” to the commissioner’s findings. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272 (Iowa 1995). Rather, we are bound by the agency’s findings of fact if supported in the record as a whole and will reverse the agency findings only if we determine that substantial evidence does not support them. Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). Under the substantial evidence standard,

we determine whether there is substantial evidence in the record as a whole to support the decision of the agency.... Evidence is not unsubstantial merely because it would have supported contrary inferences. Evidence is substantial when a reasonable mind could accept it as adequate to reach the same finding.

Bearce, 465 N.W.2d at 534 (citations omitted). “Courts must not simply rubber stamp the agency fact finding without engaging in a fairly intensive review of the record to ensure that the fact finding is itself reasonable.’ ” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003) (quoting Arthur A. Bonfield, Amendments to Iowa Administative Procedure Act, at 68 (1998)),

Going and Coming Rule.

Generally speaking, to receive workers’ compensation benefits, a claimant must show by a preponderance of the evidence that the injury arose out of and in the course of the claimant’s employment. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000). “In the course of’ the employment concerns the time, place, and circumstances of the injury. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). An injury occurs in the course of employment when it is within the period of employment at a place where the employee reasonably may be engaged in doing something incidental thereto. Id. An employee does not cease to be in the course of employment merely because the employee is not actually engaged in doing some specifically prescribed task, if, in the course of employment, the employee does some act which he or she deems necessary for the benefit or interest of the employer. Farmers Elevator Co. v. Manning, 286 N.W.2d 174, 177 (Iowa 1979).

The well established “going and coming” rule generally provides: “[A]b-sent special circumstances, injuries occurring off the employer’s premises while the employee is on the way to or from work are not compensable.” 2800 Corp. v. Fernandez, 528 N.W.2d 124, 129 (Iowa 1995). Under this rule, “the hazards encountered by the employee in going to or returning from work are not ordinarily incident to his employment within the meaning of the phrase as used in the workers’] compensation law.” Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 492, 73 N.W.2d 27, 29 (1955); see also Pribyl v. Standard Elec. Co., 246 Iowa 333, 339, 67 N.W.2d 438, 442 (1954) (“Ordinarily an employee whose work begins when he arrives in the morning is engaged in his own business when he travels to work at the regular time. He is not then pursuing his master’s business.”).

Conceptually the employment is the cause of injuries in going and coming because “if not for the job there would be no reason in most cases to approach or leave the premises.” Frost v. S.S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980) (citing 1 A. Larson, The Law of Workmen’s Compensation, § 15.00 at 4-12 (1978)). Thus, the “going and coming” rule applies only to the second prong of the test for workers’ compensation coverage: the injury must arise “in the course of’ the employment. Id. The rule measures the work connection of the incident as to time, place, and activity. Bailey v. Batchelder, 576 N.W.2d 334, 339 (Iowa 1998).

There are, however, several exceptions to the going and coming rule that “ ‘extend the employer’s premises under certain circumstances when it would be unduly restrictive to limit coverage of compensation statutes to the physical perimeters of the employer’s premises.’ ” Fernandez, 528 N.W.2d at 129. We now discuss those exceptions as pertains to this case.

The agency concluded Reynolds’s accident and resulting death arose out of and in the course of her employment with Great River, and in doing so found that she had satisfied two exceptions to the “going and coming rule.” In particular, it held that her estate was entitled to recovery because she was on a “special errand” for her employer when on her way home from work and because she was engaged in a “dual purpose trip.” Great River claims the commissioner improperly applied those exceptions to the “going and coming rule” to the facts. We agree.

Special Errand Exception. The first exception to the going and coming rule relied on by the agency is the “special errand” exception. See Golay v. Keister Lumber Co., 175 N.W.2d 385, 388 (Iowa 1970). Under this exception, if an employee is on a special errand or mission for his or her employer at the time of the injury, the injury is held to have arisen in the course of employment.

It has been said that the substance of this rule is that:

When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

1 Larson, Workers’ Compensation Law, § 14.05 (2007) (emphasis added). In Pribyl, our supreme court stated an employee

would be pursuing his master’s business if his trip to and from the employer’s premises were a special trip made in response to a special request, agreement or instructions to go from his home to the plant to do something for the employer’s benefit. In that case it is clear the entire trip would be his master’s business and by all authorities would be held to be in the course of the employment.

Pribyl, 246 Iowa at 339, 67 N.W.2d at 442. The supreme court further explained the special errand exception as follows:

[T]he going and coming rule is [not] dependent on the extent of the hazards of travel. It is based rather on contract, express or implied. If the employer assumes the burden of the workman’s coming and going expense, that is held to imply that the time of coming and going is a part of the time of employment. Or when the employer sends [the employee] on a special mission apart from his usual employment, the coming and going time of such mission is implied to be within the course of employment.

Bulman, 247 Iowa at 494, 73 N.W.2d at 30 (emphasis added).

In special errand cases, Iowa courts have typically asked the following question in considering the applicability of the special errand exception: “Whose business was [the employee] pursuing at the time of the injury?” Pribyl, 246 Iowa at 340, 67 N.W.2d at 442. An answer that the employer’s business is being served means an injury incurred during that errand may be compensable as an exception to the general going and coming rule. In this case, however, the answer to this question must be that Reynolds was pursuing her own business at the time of her accident and resulting death.

In considering the special errand exception applicable, the agency found that “Ms. Reynolds sustained injuries resulting in her death because of a special errand she undertook at the direction of the hospital.” The commissioner also found that “all involved knew that she was ill and ... could not be assigned to patient care due to her illness”. It further found that Great River had given a “specific instruction” for her to report for work despite her reported illness to verify that she was ill. Thus it reasoned “this is not a typical going and coming case because decedent was not traveling to and from the employer’s premises to engage in her work.” This, it felt, essentially transformed the situation into a special errand.

Great River first maintains “substantial evidence does not support the facts as determined by the workers’ compensation commissioner.” In particular, it assails the following finding made in the commissioner’s appeal decision: “[Reynolds] was compelled to travel to the employer’s premises so the employer could verify that she was ill and then send her back home.” After a thorough review of the record, we conclude this finding is not supported by substantial evidence in the record. There is simply no evidence from which the commissioner could have determined Great River required Reynolds to report to work so that it could verify her illness. Absent this finding, there was no additional employer purpose in requiring her to show up for work. See, e.g., Southern California Rapid Transit Dist., Inc. v. Workers’ Comp. Appeals Bd., 23 Cal.3d 158, 151 Cal.Rptr. 666, 588 P.2d 806, 811 (1979) (affirming award of benefits to employee who was injured in accident after bringing doctor’s authorization to employer where the authorization was brought in at the specific request of the employer as required under the workers’ compensation laws).

While substantial evidence may support that Reynolds (or her husband) was informed that she would be terminated if she used a sick day, this was merely recognition of her absenteeism history and Great River’s explicit personnel policy. That policy, as noted above, provides for termination upon an employee’s seventh incident of absenteeism. Were Reynolds to have taken a sick leave on the day of her eventual death, it would have been her seventh absenteeism and may have warranted termination. However, nothing in the record supports that Great River’s intention was to “verify” Reynolds’s illness, or to make her prove that she indeed was sick, nor could this inference have been made under the evidence presented. This seems to have been a gratuitous observation made by the commissioner and is not supported by substantial evidence.

Further, Kelly does not direct us to any support for this finding in the record. Rather, the substantial-evidence portion of her argument is limited to arguing that Reynolds would be subject to disciplinary action (in the form of termination) if she did not report for work. As noted, there clearly is support for this in the record from the testimony of Reynolds’s husband who recounted that he was informed his wife would be terminated if she did not show up for work. There was also substantial evidence in the record to find that all knew she was ill. However, this evidence falls short of establishing that the hospital required her presence to verify Reynolds’s claimed illness.

At its root, what we have here is that Kelly was denied a low census day multiple times and was informed that she may be terminated if she did not report for work. As noted previously, Reynolds’s choice to show up for work was voluntary, albeit one with clear knowledge of the consequences she faced pursuant to the absenteeism policy if she did not report that morning. The fact Kelly knew she may be fired, however, does not transform the character of her trip into a special errand. Essentially, the stage was set here by Kelly’s previous absenteeism incidents. She simply could not miss another day of work and chose to go to work in recognition of this.

Conceptually, this was not unlike any other day where an employee is expected to show up at work for her appointed shift. It goes without saying that every employer benefits from having its employees come to work and the expectation of having an employee report as scheduled is not special or extraordinary in nature. There was no special inconvenience, hazard, or urgency that transformed the normal commute to work into a special errand. No extra onerousness attended to this trip to and from work and nothing increased the relative importance of the journey as part of the employment. Absent these special factors, see Larson at § 14.05 (identifying factors that may serve to “transform the character of the journey” into a special errand), this cannot be considered a special errand. Here, Reynolds was simply expected to show up for work. To transform a simple expectation that an employee come to work into a compensable event would have the special errand exception swallow the going and coming rule. Accordingly, we conclude the agency determination that Reynolds was engaged in a special errand on behalf of her employer while on the drive home from work was a wholly unjustifiable application of the law to the facts. We therefore reverse.

Dual-Purpose Exception. The second exception considered by the agency is the dual-purpose exception. As the exception has been expressed by Iowa courts, an injury during a trip that serves both a business and personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone else even if it had not coincided with the personal journey. Golay v. Keister Lumber Co., 175 N.W.2d 385, 388-89 (Iowa 1970). Where the trip combines a noncompensable purpose with a special errand for the employer of sufficient substance to be viewed as an integral part of the service, the trip is considered to be in the course of employment. Id.

With regard to this exception, the agency found that Great River benefited in “not having an ill employee working near patients” and that Kelly benefited “in returning home [so] that she would have the time to recuperate.” However, this exception also requires a special errand. Id. As noted above, no special errand existed. We therefore reverse on this ground as well.

Conclusion.

Under the going and coming rule, an employee is not deemed to be in the course of the claimant’s employment while commuting to and from work absent certain exceptions. Because we find no exceptions apply to the facts of this case, we reverse and remand this case to the district court for entry of an order reversing the commissioner’s award of benefits and directing the commissioner to deny the claimant’s request for benefits.

REVERSED.


source: Caselaw Access Project

author: MEYER, Justice.

license: Public Domain

text:
    In re the Marriage of Carol Bernice BAKER, Respondent, v. Daniel Remember BAKER, Appellant.
    No. A06-1252.
    Supreme Court of Minnesota.
    June 26, 2008.

      Richard D. Goff, Richard D. Goff & Associates, Minneapolis, MN, and James G. Ryan, Ryan Law Firm, Minneapolis, MN (on the brief), for appellant.
    Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, PA, Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

In this dissolution action, we review two issues. First, we are asked to decide whether the investment return on the nonmarital portion of certain retirement accounts is also nonmarital. The court of appeals held that the investment return on the nonmarital portion of the retirement accounts is marital property, attributing to the account holder, under an agency theory, the actions of an investment advisor. Baker v. Baker, 733 N.W.2d 815, 821-22 (Minn.App.2007). In addition, the court of appeals determined that the account holder’s own actions with respect to the accounts constituted active management. Id. at 821. We hold that the single test for whether appreciation of nonmarital property is marital or nonmari-tal is the extent to which marital effort— the financial or nonfinancial efforts of one or both spouses during the marriage— generated the increase. We further hold that, in this case, no significant marital effort was expended to generate the appreciation in value of the retirement funds at issue. We therefore reverse as to the retirement accounts, but we remand to the court of appeals for consideration of the alternative argument that the commingling of income and appreciation and of marital and nonmarital property in the investment accounts renders all of the return marital property.

Second, we are asked to determine whether the district court abused its discretion in failing to account in the property division for attorney fees paid by the husband from marital assets. The court of appeals determined that the husband violated Minn.Stat. § 518.58, subd. la (2006), which bars the parties from using marital assets “except in the usual course of business or for the necessities of life” during the pendency of dissolution proceedings. We affirm as to the attorney fees.

Appellant Dr. Daniel Remember Baker married respondent Carol Bernice Baker on May 12, 1990. On May 6, 2003, Ms. Baker filed a petition for dissolution of the marriage. As of trial in May of 2005, Ms. Baker was 57 and Dr. Baker 69 1/2 years of age. They had no children together, although both have children from previous relationships.

On August 25, 2003, the parties secured from the court a stipulated temporary order, which provided, among other things, “Both parties are restrained from transferring, encumbering, concealing or disposing of property except in the usual course of business or for the necessities of life, except as to any future earned income, except as the parties with their attorneys may mutually agree in writing.” At trial, the court set a valuation date of February 2005. See Minn.Stat. § 518.58, subd. 1 (2006) (defining valuation date for purposes of dividing marital property). Among the issues left for trial were whether the investment return on Dr. Baker’s nonmarital portion of certain retirement accounts was marital or nonmarital property and whether Dr. Baker’s payment of attorney fees from a marital checking account constituted dissipation of assets. SIGS Accounts

Dr. Baker’s former employer, Specialists in General Surgery, Ltd. (SIGS), provided a qualified retirement plan. At the time of the marriage, Dr. Baker’s SIGS accounts were worth $957,473. During the marriage, SIGS made contributions to the plan totaling $396,455. Although both parties agree that the balance at the date of the marriage remains nonmarital and that the contributions made during the marriage and the investment return attributable to those contributions ($243,122) are marital, they dispute the characterization of the $1,491,022 investment return attributable to the nonmarital portion. Ms. Baker contends that it is entirely marital. Dr. Baker contends that it is nonmarital.

These disputed amounts reflect a total of 11 separate accounts holding SIGS funds. In late 1991 or early 1992, Dr. Baker moved some of the SIGS accounts to Merrill Lynch under the management of Randy Trask. According to Thomas William Harjes, Dr. Baker’s valuation expert,

Dr. Baker pays a management fee to Merrill Lynch based on a percentage of the assets under management. And * * * there are different money managers that Merrill Lynch has hired to manage different accounts. And * * * Mr. Trask manages and reviews the annual * * * information from those money managers to determine whether different money managers would be hired.

The record is silent as to whether and to what extent the management fees were paid with nonmarital property. Trask testified that he and the money managers he retained had discretion to invest the money in the accounts. According to Trask, Dr. Baker also had the power to direct investments and to transfer funds at will from one investment to another at either the same or different institutions. At least since Dr. Baker turned 59 1/2, the funds were available without a penalty as liquid assets. Before that, he could have accessed them if he paid a penalty.

Trask characterized Dr. Baker’s involvement in the Merrill Lynch accounts as “[v]ery passive” and recalled only one stock purchase during the course of their 13-year relationship that was made at Dr. Baker’s behest: a purchase for “a few thousand dollars” of stock in a company with which Dr. Baker’s son was associated. Trask recalled that in 1998 or 1999, Dr. Baker “transferred his accounts to another firm for a while, but — and then he came back.”

The Bakers made no withdrawals and received no distributions from the accounts during the marriage. All investment return was added to the principal. For purposes of Harjes’s calculations “any elements of increase in value be it interest, dividends, capital gains distributions or stock appreciation was considered a return on the account.” Harjes did not trace individual investments or distinguish between specific premarital and postmarital investments. Because SIGS contributed to the accounts during the marriage, marital and nonmarital funds were commingled in the accounts.

Dr. Baker moved SIGS funds, both within and among investment institutions, at various times during the marriage. In each of the years from 1999 to 2003, he closed at least one account and transferred the funds into new accounts. Of the two present accounts that are not with Merrill Lynch, one is with Charles Schwab and one is with U.S. Bank. There is very little in the record about these accounts or Dr. Baker’s role in those investments.

The district court agreed with Dr. Baker that the investment return on the nonmari-tal amount held at the time of marriage was also nonmarital and awarded Dr. Baker the entire disputed amount. The court of appeals reversed on this issue. Baker, 733 N.W.2d at 822. The court reasoned that because Trask was his agent, Dr. Baker was bound by Trask’s actions with respect to the Merrill Lynch accounts. Id. at 821. The court also concluded that Dr. Baker himself “actively managed” the funds by transferring funds from one investment to another and by directing the purchase of stock in the business with which his son was associated. Id. Finally, the court reasoned that Dr. Baker’s control over the funds defeated the claim that his investment was passive. Id. at 821-22. Acknowledging the statutory presumption that property acquired during marriage is marital property, the court concluded that the investment return on Dr. Baker’s premarital funds “was not the result of mere market forces or conditions but rather the result of marital efforts in the form of entrepreneurial decision-making.” Id. The court remanded for an equitable redistribution of the marital property, including the SIGS accounts. Id.

Attorney Fees

In late 2003, the parties agreed that Dr. Baker would pay off approximately $43,500 of Ms. Baker’s credit card debt. The debt included expenditures for the couple’s home, groceries, and gifts for their children and grandchildren. Ms. Baker had also charged approximately $7,946 in attorney fees on the credit card. After Dr. Baker paid the $43,500 from marital assets, over which he had control, Ms. Baker continued to pay attorney fees, sometimes with cash and sometimes with credit. As of trial, she had incurred approximately $26,000 in attorney fees, not all of which had been paid. She estimated that her total attorney fees would amount to $54,640.

Dr. Baker paid his attorney fees from his Merrill Lynch debit checking account. Between May of 2003, when Ms. Baker filed her petition, and April of 2005, just before trial, Dr. Baker paid $114,257.16 in attorney fees. This amount did not include fees incurred during trial. The parties stipulated that the Merrill Lynch checking account was a marital asset, valued at $68,606 on February 28, 2005, the valuation date.

The district court made no specific findings as to whether Dr. Baker’s payments constituted dissipation. The court rejected Ms. Baker’s dissipation claims as to other expenditures not at issue here but did not mention attorney fees in this context. The court concluded that “[e]ach party shall be responsible for their own attorney’s fees and costs.”

The court of appeals reversed on this issue, holding that the district court abused its discretion and that Dr. Baker dissipated marital assets when he used those assets to pay his attorney fees. Baker, 733 N.W.2d at 824. The court observed that the district court’s conclusion was incompatible both with case law and with the district court’s order that each party should pay his or her own attorney fees. Id. The court of appeals remanded for the district court to compensate Ms. Baker accordingly. Id. We granted Dr. Baker’s petition for further review on both the issue of whether the investment return on the SIGS accounts was marital property and the issue of attorney fees.

I.

The issue in this case is whether the total investment return on the nonmar-ital portion of Dr. Baker’s SIGS accounts is marital property. We independently review the issue of whether property is marital or nonmarital, giving deference to the district court’s findings of fact. Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn.2003). As we noted above, there were no withdrawals from Dr. Baker’s SIGS accounts during the marriage, and all income earned on the accounts during the marriage — interest, dividends, and capital gains — was reinvested in the accounts. We consider whether the appreciation on the accounts — the increase in the value of the investments as opposed to the income earned on the accounts — during the marriage is marital or nonmarital property.

Minnesota Statutes § 518.003, subd. 3b (2006), defines marital property as “property, real or personal, * * * acquired by the parties, or either of them, to a dissolution * * * at any time during the existence of the marriage relation between them, * * * but prior to the date of valuation.” Nonmarital property is “property real or personal, acquired by either spouse * * *, * * * (b) is acquired before the marriage; [or] (c) is acquired in exchange for or is the increase in value of’ nonmarital property. Id. All property acquired by either spouse during the marriage is presumptively marital, but a spouse may defeat the presumption by showing by a preponderance of the evidence that the property acquired is non-marital. Id.; Antone v. Antone, 645 N.W.2d 96, 101 (Minn.2002).

In determining whether the appreciation in the value of a nonmarital investment is marital or nonmarital, we look to whether or not the appreciation is the result of active management of the investment, classifying active appreciation as marital property and passive appreciation as nonmarital property. Gottsacker, 664 N.W.2d at 853. We have explained the difference between active and passive appreciation as follows:

[Ijncrease in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property. Conversely, an increase in the value of nonmarital property attributable to inflation or to market forces or conditions! ] retains its nonmarital character.

Nardini v. Nardini, 414 N.W.2d 184, 192 (Minn.1987); see also Gottsacker, 664 N.W.2d at 853.

Dr. Baker argues that appreciation is active only if caused by the application of marital effort. He argues that by focusing on control rather than effort, the court of appeals eliminated the possibility of passive appreciation of nearly any asset and, by extension, the possibility that any asset can remain nonmarital. Ms. Baker counters that the investment in this case was actively managed. Dr. Baker disputes this and argues that he expended “virtually no time, effort, or funds from the marriage to appoint an investment advisor to manage the accounts.”

The classification of property as marital or nonmarital is grounded in the principle that marriage is a partnership and that each partner should get out of the marriage a fair share of what was put into it. Our discussion in Nardini is illustrative:

[Mjarriage is a joint enterprise whose vitality, success and endurance is dependent upon the conjunction of multiple components, only one of which is financial. * * * [Tjhe extent to which each of the parties contributes to the marriage is not measurable only by the amount of money contributed to it during the period of its endurance but, rather, by the whole complex of financial and nonfinancial components contributed. The function of equitable distribution is to recognize that when a marriage ends, each of the spouses, based on the totality of the contributions made to it, has a stake in and right to a share of the marital assets accumulated while it endured * * *.

414 N.W.2d at 192 (quoting Wood v. Wood, 119 Misc.2d 1076, 465 N.Y.S.2d 475, 477 (N.Y.Sup.Ct.1983)). We have never addressed how MinmStat. § 518.003, subd. 3b, and its underlying rationale should affect the classification of investment portfolios such as those at issue here.

We have, however, decided a number of cases involving the classification of other kinds of property. See Gottsacker, 664 N.W.2d at 852-58 (holding that an Accumulated Adjustment Account (AAA) in a subchapter S corporation was nonmarital property on the dual bases that the wife had no control over distributions from the AAA and that no marital effort increased the value of the wife’s interest in the AAA); Antone, 645 N.W.2d at 103-05 (holding that there was “marital equity” in rental properties to the extent that the rental income during the marriage reduced the properties’ mortgage balances; that there was a marital component to the homestead, even though the husband had bought it before the marriage and its mortgage balances had actually increased during the marriage; and that the husband’s interest in a business was marital because it was purchased with marital funds, even though it was a successor to a similar failed nonmarital business); Nardi-ni, 414 N.W.2d at 195 (holding that increase in value of couple’s closely held corporation, in which the husband had acquired 50% ownership before the marriage, was marital because it was attributable to the efforts of the spouses during the marriage); Faus v. Faus, 319 N.W.2d 408, 412 (Minn.1982) (affirming trial court’s conclusion that a homestead purchased with nonmarital assets was marital because much of its value came from improvements made by the couple during the marriage); Brown v. Brown, 316 N.W.2d 552, 553 (Minn.1982) (finding reversible error when the trial court “failed to adequately account for the distinction between the nonmarital and marital character of the homestead property”); Schmitz v. Schmitz, 309 N.W.2d 748, 749-50 (Minn.1981) (holding that a duplex purchased with nonmarital assets was marital property to the extent that the mortgage had been paid with rental income during the marriage). In Schmitz, we endorsed the use of a formula to apportion the marital and nonmarital components of a single asset. 309 N.W.2d at 750. We later summarized the formula as follows:

The present value of a nonmarital asset used in the acquisition of marital property is the proportion the net equity or contribution at the time of acquisition bore to the value of the property at the time of purchase multiplied by the value of the property at the time of separation. The remainder of equity increase is characterized as marital property * * *.

Brown, 316 N.W.2d at 553.

In light of the foregoing, we conclude that central to the classification of appreciation of nonmarital property as marital or nonmarital is the principle that effort expended to generate property during the marriage — that is, “marital effort” — should benefit both parties rather than one of the parties to the exclusion of the other. In all of the cases where we have held appreciation of nonmarital property to be marital, significant effort that otherwise could have been devoted to the generation of marital property was diverted and applied toward nonmarital property instead. See, e.g., Antone, 645 N.W.2d at 103-05; Nardini 414 N.W.2d at 195; Faus, 319 N.W.2d at 412; Schmitz, 309 N.W.2d at 750.

In contrast, in this case the court of appeals based its decision in significant part upon the fact that Dr. Baker had control over the SIGS accounts. Baker, 733 N.W.2d at 821 (“[T]he ability to control investments or withdraw funds can defeat a claim that the increases in value of premarital funds were the result of passive appreciation.”). We agree with Dr. Baker that whether appreciation is generated through marital effort has been central to our decisions and that the court of appeals erred in adopting a different test. As Dr. Baker argues, the court of appeals’ control test all but eviscerates the statutory intent to protect the nonmarital character of increases in the value of nonmarital property. Many traditionally nonmarital assets are within a spouse’s control. For example, a gift or inheritance to only one spouse may be hers to do with as she pleases, and yet it is expressly nonmarital under Minn.Stat. § 518.003, subd. 3b(a). We have held that property over which a party has control may be nonmarital in whole or in part. Gottsacker, 664 N.W.2d at 856 (degree of control shareholder spouse can exercise over corporation determines whether retained earnings are marital or nonmarital asset). Therefore, we reaffirm Nardini and hold that the single test for whether appreciation in the value of nonmarital property is marital or nonmarital is the extent to which marital effort — the financial or nonfinancial efforts of one or both spouses during the marriage — generated the increase.

We turn next to the question of whether Dr. Baker’s actions in this case constitute “marital effort.” This case differs materially from our earlier “marital effort” cases, which have dealt primarily with small businesses or real estate. Here instead we consider a portfolio of stocks and bonds of publicly traded companies and government securities. We conclude that in evaluating a portfolio of investments, we look to the character of the underlying investments themselves. See Warner v. Warner, 807 A.2d 607, 615 (Me.2002) (holding that, under a statutory scheme similar to Minnesota’s, stocks in a portfolio require individual analysis). We further conclude that absent evidence that the efforts of one or both spouses directly affected the value of an investment, the appreciation in the value of the investment is properly characterized as passive. This approach is consistent with dicta in Nardi-ni, in which we indicated that the Schmitz formula applies to publicly traded stocks. 414 N.W.2d at 193-94. Other jurisdictions have reached the same conclusion. Warner, 807 A.2d at 617 (“As publicly traded securities, any increase in the market value of the shares of Exxon, General Electric, Proctor & Gamble, and Union Pacific during the marriage was the product of market forces, not * * * marital effort.”); Lane v. Lane, 375 So.2d 660, 673-74 (La.Ct.App.1978); O’Brien v. O’Brien, 131 N.C.App. 411, 508 S.E.2d 300, 307 (1998) (holding “that if either or both of the spouses perform substantial services during the marriage which result in an increase in the value of an investment account, that increase is to be characterized as an active increase and classified as a marital asset”).

The court of appeals relied on two alternative theories under which the accounts could be considered nonmarital, both of which we reject. First, the court of appeals suggested that Dr. Baker expended enough personal effort to constitute active management of the overall investment portfolio and that therefore the appreciation in the portfolio as a whole should be considered active. Baker, 733 N.W.2d at 821. Dr. Baker’s activity with respect to the accounts consisted of selecting and occasionally changing investment advisors; authorizing money managers to make discretionary decisions about the investments; retaining discretion to direct investments but exercising that discretion on only one occasion (to invest in a business with which his son was involved); and declining to withdraw from the funds although they were available as liquid assets.

We note that by utilizing professional investment institutions, Dr. Baker avoided the need to devote significant personal effort to managing his retirement funds. Dr. Baker worked full time and contributed his earnings to the marriage. The court of appeals’ decision compels us to ask, if Dr. Baker expended too much marital effort to avail himself of the statutory definition of nonmarital property, what less could he have done? How else could he have invested his premarital retirement funds so as to ensure that their appreciation during marriage would remain non-marital? We conclude that on this record, Dr. Baker’s role in the investments was insufficient to render active the appreciation in the value of the overall portfolio.

The court of appeals also reasoned that the money managers’ actions with respect to the SIGS funds are attributable to Dr. Baker under agency principles. Id. We disagree. Although we acknowledge that had Dr. Baker done what Merrill Lynch did any appreciation would have been active, we find no authority for the proposition that a third party’s activities constitute marital effort for purposes of determining whether property is marital or nonmarital. We have implicitly rejected this argument in the past, considering the increase in the value of nonmarital property to be marital only if generated by the personal efforts of the spouse. See Gottsacker, 664 N.W.2d at 857-58 (holding that AAA in subchapter S corporation of which the spouse was a part owner was nonmarital property). We reject the court of appeals’ agency argument explicitly now, holding instead that only the financial and nonfinancial efforts of the spouses themselves are relevant to the assessment of marital effort.

Alternatively, Ms. Baker argues that even if the appreciation in the non-marital portion of the SIGS accounts would otherwise be nonmarital, the entire increase in the value of the SIGS accounts attributable to the value of the account at the date of the marriage should be considered marital property for two reasons. First, Ms. Baker points out, Dr. Baker failed to meet his burden to distinguish between the increase due to income earned by the nonmarital portion of the SIGS accounts, which is marital property, see Minn. Stat. § 518.003, subd. 3b (marital property is property acquired “at any time during the existence of the marriage”), and the increase due to appreciation. Second, nonmarital and marital funds were admittedly commingled in the SIGS accounts, and the court. of appeals has held that commingling of marital and nonmarital funds can render the nonmarital funds marital property. See, e.g., Wiegers v. Wiegers, 467 N.W.2d 342, 344 (Minn.App.1991) (“When nonmarital and marital property are commingled, the nonmarital investment may lose that character unless it can be readily traced.”). The court of appeals did not address these arguments, see Baker, 733 N.W.2d at 822 n. 5, and they are not before us on review. Accordingly, we remand to the court of appeals for consideration of these alternative arguments.

II.

We turn now to the issue of whether Dr. Baker dissipated marital assets by paying his attorney fees from a marital checking account. Under Minn. Stat. § 518.58, subd. la,

[d]uring the pendency of a marriage dissolution, * * * each party owes a fiduciary duty to the other for any profit or loss derived by the party, without the consent of the other, from a transaction or from any use by the party of the marital assets. If the court finds that a party to a marriage, without consent of the other party, has * * * during the pendency of [] the current dissolution * * * proceeding, transferred * * * marital assets except in the usual course of business or for the necessities of life, the court shall compensate the other party by placing both parties in the same position that they would have been in had the transfer * * * not occurred.

In Thomas v. Thomas, the court of appeals held that “[a]ny amount taken from marital property to pay one party’s attorney’s fees should be accounted for on remand and the other party compensated in the distribution.” 407 N.W.2d 124, 128 (Minn.App.1987). Dr. Baker contests the court of appeals’ decision that in paying his attorney fees from a marital checking account, he violated Minn.Stat. § 518.58, subd. la.

It is undisputed that Dr. Baker paid his attorney fees from an account that was ultimately classified as marital under the district court’s property division. It is also undisputed that attorney fees are not, in the language of the statute, expenses “in the usual course of business or for the necessities of life.” Therefore, certainly any attorney fees paid from marital assets before the stipulated temporary order should be accounted for.

As for attorney fees paid after the stipulated temporary order, Dr. Baker argues that the funds were paid with nonmarital assets because they were acquired after the statutorily presumptive valuation date that was subsequently changed by the court. This argument is without merit. There was no agreement by the parties about a valuation date and, at the pretrial hearing in September of 2004, the court set a valuation date different from that presumed in the statute. Dr. Baker had no reason to rely on the statute, nor is there anything in the record to indicate that he actually did so.

Dr. Baker relies on the language in the statute limiting the prohibition to transfers “without the consent of the other,” arguing that the stipulated temporary order constituted Ms. Baker’s consent. In the order, the parties agreed that the restriction on how they spent their income would not apply to future earned income. The question, then, is whether the $114,257.16 paid by Dr. Baker to his attorney was earned by Dr. Baker after the stipulated temporary order filed on August 25, 2003. Because the checking account commingled Dr. Baker’s future earnings with marital earnings, and because he apparently spent his earnings on many things other than attorney fees, we cannot assess the validity of Dr. Baker’s claim that the attorney fees were all paid from income earned after entry of the stipulated temporary order. This is a question of fact the district court should have resolved.

There is a disjuncture within the district court’s action with respect to attorney fees, the facts it found, and its order that each party pay his or her own attorney fees. To the extent that it permitted Dr. Baker to subsidize his attorney fees with marital assets, the district court abused its discretion. After addressing Ms. Baker’s remaining SIGS accounts argument on remand, the court of appeals should remand to the district court for determination of the extent to which Dr. Baker’s attorney fees and other expenditures outside the usual course of business or for the necessities of life were paid from marital assets rather than income earned after entry of the stipulated temporary order. The district court should then compensate Ms. Baker accordingly, taking into account the extent to which marital assets also have been used to pay her attorney fees. We therefore affirm the court of appeals as to the issue of attorney fees.

Affirmed in part, reversed in part, and remanded.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, PAUL H., Justice (concurring).

I concur in the result reached by the court in this case.

      . By "investment return,” we mean the total difference between the value of the accounts at the date of the parties’ marriage and the value of the accounts on the valuation date. Because there were no withdrawals from the accounts during the marriage and all investment income — interest, dividends, and capital gains — was added to the accounts, the "investment return” at issue here includes both any appreciation or depreciation in the value of the investments and any income earned by the investments during the marriage.

      . The court of appeals used the term "appreciation” rather than "investment return,” but we read the court’s opinion to use the term "appreciation” to encompass both investment income and appreciation in the value of the investments. In this opinion, we use "appreciation” more narrowly to refer only to the increase in the value of the investments from market fluctuations and not to the income the investments generate.

      . The valuations of the retirement accounts are taken from the testimony of Dr. Baker’s expert, Thomas William Harjes. Ms. Baker does not seriously dispute the valuation methods and offered no expert testimony of her own. Harjes assumed that the investment return on the nonmarital portion was also nonmarital. To trace which amounts were attributable to the original nonmarital portion and which to the annual marital contributions, he used the following method. For each year of the marriage, he determined what percentage of the account was nonmari-tal and what was marital, applied that percentage to annual investment return, and added the years together to determine the final amounts. We express no opinion as to the propriety of this methodology.

      . Both parties have other retirement assets not at issue in this appeal.

      . The company went out of business and the investment was lost.

      . As noted later in this opinion, the court of appeals did not address the question of whether there was an increase due to income earned by the nonmarital portion of the SIGS accounts, and it is not before us on review.

      . There is no evidence in the record before us that either spouse directly affected the value of any individual investment in any of the SIGS accounts.


author: /s/Alan C. Page Associate Justice

text:
    In re Petition for REINSTATEMENT OF Nicholas James GEGEN, a Minnesota Attorney, Registration No. 21503X.
    No. A07-704.
    Supreme Court of Minnesota.
    July 2, 2008.
   ORDER

On December 1, 2005, we transferred petitioner Nicholas James Gegen to disability inactive status, pursuant to a stipulation between petitioner and the Director of the Office of Lawyers Professional Responsibility. In re Gegen, 706 N.W.2d 763 (Minn.2005). Petitioner filed a petition for reinstatement to active status in April 2007, and a hearing was held before a panel of the Lawyers Professional Responsibility Board. The panel concluded that petitioner has proven by clear and convincing evidence that he is competent and psychologically fit to resume the active practice of law. The panel further concluded that petitioner has proven that he has complied with Rule 26, Rules on Lawyers Professional Responsibility (RLPR), and is current in continuing legal education requirements. The disciplinary proceeding pending at the time of petitioner’s transfer to disability inactive status has been resolved. The panel recommended that petitioner be reinstated to the practice of law and placed on probation for three years, subject to additional conditions.

The court has independently reviewed the file and approves the panel’s recommended disposition as modified.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that, effective immediately, petitioner Nicholas James Gegen is reinstated to the practice of law and placed on probation for a period of three years, subject to the following conditions:

(a) Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by its due date. Petitioner shall provide to the Director a current mailing address and shall immediately notify the Director of any change of address. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. At the Director’s request, petitioner shall provide authorization for the release of information and documentation to verify compliance with the terms of this probation.
(b) Petitioner shall abide by the Minnesota Rules of Professional Conduct.
(c) Petitioner shall maintain total abstinence from alcohol and other mood-altering chemicals, except that petitioner may use prescription drugs in accordance with the directions of a physician who is fully advised of petitioner’s chemical dependency before issuing the prescription.
(d) Petitioner shall attend weekly meetings of Alcoholics Anonymous or another outpatient alcohol treatment program acceptable to the Director. Petitioner shall, by the tenth day of each month, without a specific reminder or request, submit to the Director an attendance verification on a form provided by the Director, which provides the name, address and telephone number of the person personally verifying the attendance. Such attendance verification shall also, upon request, be provided to petitioner’s supervisor, if one is appointed.
(e) Petitioner shall continue current treatment with his licensed consulting psychologist and shall complete all recommended therapy programs. In addition, petitioner shall continue regular consultations with a psychiatrist and shall take all medications prescribed by that psychiatrist. Petitioner shall sign authorizations permitting the Director to verify that petitioner regularly consults with his psychologist and psychiatrist and continues to take his prescribed medications.
(f) Petitioner shall, at his own expense, submit to random urinalysis for drug and alcohol screening no more than four times per month at a facility approved by the Director and shall direct that facility to provide the results of all urinalysis testing to the Director’s Office. If, after six months, all such tests have been negative, then the frequency of the random tests may be reduced. Petitioner shall cooperate with the phone-in program established by the Director for the random test. Any failure to phone in in accordance with the random test program shall be considered a receipt of a positive test result. Any positive test result will be grounds for the Director to file a petition for transfer of petitioner to disability inactive status.
(g) Petitioner shall not practice law in a solo practice until he has practiced law for at least 12 months as an employee or partner of another licensed Minnesota attorney. During any period that petitioner practices law as a solo practitioner during the period of probation, petitioner shall be subject to supervision by a licensed attorney subject to the following conditions:
(1)Petitioner shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Petitioner shall provide to the Director the names of four attorneys who have agreed to act as petitioner’s supervisor no less than two weeks before petitioner begins a solo practice of law. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, petitioner shall on the first day of each month provide the Director with an inventory of active client files described in subpara-graph (2) below. Petitioner shall make active client files available to the Director upon request.
(2) Petitioner shall cooperate fully with the supervisor’s efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(3) Within thirty days of beginning solo practice, petitioner shall provide to the Director and to the probation supervisor a written plan outlining office procedures designed to ensure that petitioner is in compliance with probation requirements. Petitioner shall provide progress reports as requested by the Director or probation supervisor.

BY THE COURT:

/s/Alan C. Page Associate Justice

MAGNUSON, C.J., took no part in the consideration or decision of this case.


author: GILDEA, Justice.

text:
    Jerome D. NUNN, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2235.
    Supreme Court of Minnesota.
    July 24, 2008.

      Jerome Deon Nunn, Bayport, MN, Appellant.
    Attorney General-Criminal, St. Paul, MN, Linda K. Jenny, Minneapolis, MN, for Respondent.
   OPINION

GILDEA, Justice.

This case comes to us on appeal from the postconviction court’s denial of appellant Jerome D. Nunn’s petition for post-conviction relief. In 1996, Nunn was convicted of the first-degree murder of Abdul Poe and the attempted first-degree murder of John Holmes. We affirmed Nunn’s convictions on direct appeal. State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). Ten years later, Nunn petitioned for post-conviction relief on the grounds that the prosecutor committed misconduct during closing argument and that Nunn’s appellate counsel was ineffective in failing to raise the prosecutorial misconduct issue on direct appeal. The postconviction court denied Nunn’s petition without holding an evidentiary hearing. We affirm.

Abdul Poe and John Holmes were shot on July 22, 1995, while sitting in a car in the parking lot of a Minneapolis liquor store; Poe died from the gunshot wounds he suffered. A Hennepin County grand jury indicted Nunn for the first-degree murder of Poe, Minn.Stat. § 609.185(1) (1994), and the attempted first-degree murder of Holmes, Minn.Stat. §§ 609.17, 609.185(1) (2006). The jury found Nunn guilty of both counts, and the district court subsequently entered convictions and sentenced Nunn to consecutive terms of life and 180 months imprisonment. On direct appeal, Nunn argued that the district court committed reversible error by admitting “other crimes” evidence and prior consistent out-of-court statements of prosecution witnesses. Nunn, 561 N.W.2d at 906. We held that the district court did not abuse its discretion in admitting. this evidence and affirmed Nunn’s convictions. Id. at 909.

In 2007, Nunn petitioned for postcon-viction relief, claiming that the prosecutor committed misconduct during the State’s closing argument by appealing to the passions of the jury, aligning himself with the jury, and implying knowledge of outside evidence of Nunn’s guilt. Nunn also claims that he received ineffective assistance of appellate counsel because his attorney did not raise the prosecutorial misconduct issue on direct appeal. The postconvietion court concluded that the “petition, files, and records conclusively demonstrate that [Nunn] is not entitled to relief’ and therefore denied Nunn’s petition without holding an evidentiary hearing.

When direct appellate relief is not available, a person convicted of a crime may petition the district court for postcon-viction relief. Minn.Stat. § 590.01, subd. 1 (2006). The postconvietion court must hold an evidentiary hearing “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2006). On appeal, we review the postconvietion court’s factual findings to determine whether they are supported by sufficient evidence, and will reverse only if the court abused its discretion. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007); Schneider v. State, 725 N.W.2d 516, 520 (Minn.2007). But the postconvietion court’s legal determinations, “including legal determinations of ineffective assistance of counsel, * * * are reviewed de novo.” Schneider, 725 N.W.2d at 520; accord Cooper v. State, 745 N.W.2d 188, 190 (Minn.2008).

I.

Before we reach the merits of Nunn’s claims, we must determine whether those claims were properly raised in this petition for postconvietion relief. All claims raised on a direct appeal, and all claims that were known or should have been known at the time of a direct appeal, are barred from consideration upon a subsequent petition for postconvietion relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Minn. Stat. § 590.01, subd. 1 (“A petition for postconvietion relief after a direct appeal has been completed may not be based on grounds that could have been raised on direct appeal of the conviction or sentence.”). But this rule does not apply to claims presenting a novel legal issue or where the interests of justice require review (i.e., “if fairness requires review and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal”). Schneider, 725 N.W.2d at 520; accord Cooper, 745 N.W.2d at 191.

The State argues that Nunn’s claim that the prosecutor committed misconduct during the State’s closing argument is procedurally barred under Knajfla. In Cooper, we said that claims relating to closing argument generally “are known or should have been known at the time of a direct appeal.” 745 N.W.2d at 191 (citing Pippitt v. State, 737 N.W.2d 221, 229 (Minn.2007), and Severson v. State, 636 N.W.2d 808, 810 (Minn.2001)). The record in this case confirms that Nunn’s prosecutorial misconduct claim was known or should have been known at the time of his direct appeal— the State’s entire closing argument, including the statements Nunn now argues were improper, appears in the trial transcript, and Nunn’s trial counsel objected to two of the allegedly improper statements. Moreover, Nunn’s prosecutorial misconduct claim does not involve novel legal issues, and there is no indication that the interests of justice require review. Because the issue could have been raised on direct appeal, we hold that Nunn’s prosecutorial misconduct claim is procedurally barred from consideration in the present postcon-viction proceedings.

The State also argues that Nunn’s second claim — ineffective assistance of appellate counsel — is procedurally barred under Knaffla. But we have repeatedly held that “[c]laims of ineffective assistance of appellate counsel on direct appeal are not barred by the Knqffla rule in a first post-conviction appeal because they could not have been brought at any earlier time.” Leake, 737 N.W.2d at 536; accord Schneider, 725 N.W.2d at 521; Townsend v. State, 723 N.W.2d 14, 19 (Minn.2006). Because this is Nunn’s first petition for postconviction relief, we conclude that his ineffective assistance of appellate counsel claim is properly before us.

II.

Nunn claims that his attorney on direct appeal was ineffective in failing to raise the issue of prosecutorial misconduct. In order to succeed on an ineffective assistance of counsel claim, a petitioner must prove two elements: (1) “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and (2) “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.’ ” Fields v. State, 733 N.W.2d 465, 468 (Minn.2007) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We have recognized that “appellate counsel [does] not have a duty to include all possible claims on direct appeal, but rather [is] permitted to argue only the most meritorious claims.” Schneider, 725 N.W.2d at 523. Thus, the representation by Nunn’s attorney on direct appeal did not fall below an objective standard of reasonableness if he “could have legitimately concluded that he would not have prevailed” on the prose-cutorial misconduct issue. Id.; accord Cooper, 745 N.W.2d at 193; Leake, 737 N.W.2d at 536. Moreover, under the second prong of the ineffective assistance of counsel test, Nunn must show to “ ‘a reasonable probability’ ” that the outcome of his direct appeal would have been different if the prosecutorial misconduct issue had been raised. See Fields, 733 N.W.2d at 468 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052); Schneider, 725 N.W.2d at 521. We therefore begin our analysis of Nunn’s ineffective assistance of appellate counsel claim by considering the merits of his prosecutorial misconduct claim.

Prosecutorial misconduct “results from violations of clear or established standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state’s case law.” State v. Fields, 730 N.W.2d 777, 782 (Minn.2007). When assessing alleged misconduct during a closing argument, “we look to the closing argument as a whole, rather than to selected phrases and remarks.” Ture v. State, 681 N.W.2d 9, 19 (Minn.2004). The determination of the propriety of a prosecutor’s closing argument is generally “ ‘within the sound discretion of the trial court.’ ” State v. Ray, 659 N.W.2d 736, 746 (Minn.2003) (quoting State v. Parker, 353 N.W.2d 122, 127 (Minn.1984)).

Nunn argues that the prosecutor committed three separate types of misconduct during the State’s closing argument: (1) appealing to the passions of the jury, (2) aligning himself with the jury, and (3) implying knowledge of outside evidence of Nunn’s guilt. We address each of these claims in turn.

A.

Nunn first claims that the prosecutor improperly appealed to the passions of the jury by stating, “John Holmes and Abdul Poe are victims of a brutal crime. Their lives deserve the protection of the law.” According to Nunn, this statement was intended to appeal to the jury’s sympathy for the victims and “strongly suggested to the jury that they had an obligation to seek justice for the victims.”

A prosecutor is not permitted to “appeal to the passions of the jury” during closing argument. State v. Mayhorn, 720 N.W.2d 776, 786-87 (Minn.2006); accord State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (“ ‘The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.’ ” (quoting I ABA Standards for Criminal Justice, The Prosecution Function 3-5.8(c) (2d ed.1979))). A prosecutor should also avoid arguments that “ ‘divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.’ ” Salitros, 499 N.W.2d at 817 (quoting I ABA Standards for Criminal Justice, The Prosecution Function 3-5.8(d) (2d ed.1979)). But these restrictions do not preclude all arguments relating to the impact of the crime on the victim. For example, “[i]t is proper for a prosecutor to talk about what the victim suffers and to talk about accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant.” State v. Montjoy, 366 N.W.2d 103, 109 (Minn.1985).

In this case, the postconviction court found that the prosecutor’s statement was not improper because it “was not intended to arouse the passions of the jury or distract jurors from their burden of proof,” but was instead made “in the context of refuting the insinuation that the victims were undeserving of protection.” This finding is supported by the record. First, the challenged statement was immediately preceded by the following statement: “Remember also the defense’s attempt to make the victims in this case look like there’s something wrong with them or they are bad people.” Moreover, in overruling Nunn’s objection, the trial court necessarily concluded that the challenged statement was proper, and this conclusion is entitled to deference. See Ray, 659 N.W.2d at 746 (indicating that the propriety of a prosecutor’s closing argument is generally “ ‘within the sound discretion of the trial court’ ” (quoting Parker, 353 N.W.2d at 127)). Finally, the challenged statement was isolated, constituting only 3 lines of a 37-page closing argument. In the context of the entire closing argument, it is unlikely that this statement was sufficient to divert the jury from its role of deciding whether the State proved Nunn’s guilt beyond a reasonable doubt. We therefore conclude that the prosecutor did not commit misconduct by appealing to the passions of the jury.

B.

Nunn argues that the prosecutor improperly aligned himself with the jury by repeatedly using the pronoun “we” when describing the evidence presented at trial. In particular, Nunn challenges the following portion of the State’s closing argument:

We learned in this case that he possesses and carries guns. We learned that he threatened to hurt people if it involves his money or his drugs. We learned that he was trying to intimidate his own cousin because it involved his money and his drugs. We learned that he rode in Minneapolis with guns in the car.
And we also learned that if he was wronged, if he felt wronged about what was important to him, the money and the drugs, that he would kill for it. That’s what we learned during the course of this trial. That was important to him — the drugs and that money — and he would kill for it.

According to Nunn, the prosecutor’s use of “we” in this manner “created a situation of ‘us’ (the prosecutor and the jury) against ‘him’ ([Nunn]).”

In arguing that the use of “we” improperly aligned the prosecutor with the jury, Nunn relies on our decision in Mayhom, 720 N.W.2d 776. In that case, the defendant challenged the following statement by the prosecutor: “This is kind of foreign for all of us, I believe, because we’re not really accustomed to this drug world and drug dealing.” Id. at 789. Although we had previously allowed a prosecutor to describe a defendant as being from a different world than the jurors when the comments merely provide context for unfamiliar aspects of the drug culture, we held in May-hom that “it does not follow that a prosecutor may describe herself and the jury as a group of which the defendant is not a part.” Id. at 789-90. We also expressly noted that “a prosecutor is not a member of the jury, so to use ‘we’ and ‘us’ is inappropriate and may be an effort to appeal to the jury’s passions.” Id. at 790.

Nunn’s reliance on Mayhorn fails for two reasons. First, although we indicated that a prosecutor’s use of “we” and “us” during closing argument was inappropriate, we did not decide Mayhorn until 2006 — 10 years after the trial in this case. Thus, the prosecutor’s use of “we” during Nunn’s trial could not have violated any standard of conduct we established in Mayhom.

Second, the challenged statements in this case involve the prosecutor’s use of “we” in describing the evidence that had been presented at trial (i.e., “we learned” various facts from the trial testimony). Although this use of “we” may align the prosecutor with the jurors, it does not necessarily exclude the defendant because the “we” could reasonably be interpreted in this context to refer to everybody who was in court when the evidence was presented. The prosecutor’s use of “we” in this case is thus significantly different from the description of the foreign drug world, of which the defendant was a part and the prosecutor was not, that we addressed in Mayhorn, 720 N.W.2d at 789. We therefore conclude that in this particular case, the prosecutor’s use of “we” when describing the evidence presented at trial was not misconduct.

C.

Finally, Nunn claims that the following statement constitutes prosecutorial misconduct: “Two people were involved in the shooting. We may never know who the other one was. We know who one of them was. It was this defendant.” Nunn argues that prosecutor’s use of the words “ ‘We know ’ strongly suggests to the jury that the prosecutor, his office and law enforcement have outside proof and/or knowledge that [Nunn] committed the crime without any doubt,” and that “this impermissible tactic diverted the jury from its duty to decide the case on the evidence.”

In State v. Roman Nose, we considered whether a prosecutor committed misconduct in a closing argument by repeatedly using the phrase “we know” in making inferences from DNA evidence. 667 N.W.2d 386, 401 (Minn.2003). Because a prosecutor “may present to the jury all legitimate arguments on the evidence, analyze and explain the evidence, and present all proper inferences to be drawn from the evidence,” we held that the prosecutor’s statements were not improper. Id. at 402.

In this case, the trial court concluded that the prosecutor’s statement was not improper by overruling Nunn’s objection, and this conclusion is entitled to deference. See Ray, 659 N.W.2d at 746. Looking at the record in this case, the challenged statement followed a lengthy description of the evidence supporting the State’s theory of the case. Moreover, immediately after the trial court overruled Nunn’s objection, the prosecutor again highlighted the key-evidence linking Nunn to the shooting. As in Roman Nose, the context of the challenged statement in this case thus suggests that the prosecutor was permissibly-drawing inferences from the evidence presented at trial, not implying the existence of other evidence of Nunn’s guilt. Finally, given the limited nature of the challenged statement in the context of the prosecutor’s lengthy closing argument, it is unlikely that this statement was sufficient to divert the jury from deciding Nunn’s guilt or innocence based on the evidence presented at trial. We therefore conclude that the prosecutor did not commit misconduct by implying the existence of outside evidence of Nunn’s guilt.

Because it is thus unlikely that any of Nunn’s allegations of prosecutorial misconduct would have succeeded on the merits, we conclude that Nunn failed to establish that he received ineffective assistance of counsel on his direct appeal. Accordingly, we hold that the postconviction court did not err in denying Nunn’s petition for postconviction relief.

Affirmed.

      . A detailed account of the underlying facts of this crime and the evidence presented at Nunn’s trial is set forth in our opinion deciding Nunn's direct appeal. Nunn, 561 N.W,2d at 904-06. In this opinion, we refer only to those facts that are relevant to our resolution of the issues currently before us.


text:
    Leon M. PERRY, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2454.
    Supreme Court of Minnesota.
    July 31, 2008.

      Leon Perry, Bayport, MN, for appellant.
    Attorney General-Criminal, St. Paul, MN, J. Michael Richardson, Asst. County Atty., Minneapolis, MN, for respondent.
   OPINION

GILDEA, Justice.

Appellant Leon M. Perry appeals from a summary denial of his third and fourth postconviction petitions. We affirm.

Following a jury trial in Hennepin County, Perry was found guilty of first-degree murder, Minn.Stat. § 609.185(a)(1) (2006), for the shooting death of Brian Thomas outside the Riverview Supper Club in Minneapolis on July 8, 1995. State v. Perry, 561 N.W.2d 889, 891-93 (Minn.1997). Perry was convicted and sentenced to life in prison. Id. at 891. On direct appeal, he argued that the district court committed reversible error by admitting inadmissible hearsay and that his Sixth Amendment rights were violated because no persons of color were on the grand jury that indicted him. Id. at 891, 894. We affirmed.

Seven years later, Perry filed his first petition for postconviction relief, claiming a violation of his Fourteenth Amendment right to equal protection based on the racial composition of the grand jury and ineffective assistance of counsel for failing to raise this equal protection claim. Perry v. State, 705 N.W.2d 572, 574 (Minn.2005). We affirmed the postconviction court’s summary denial of relief on the ground that Perry’s claims were barred by the rule announced in State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), and we concluded that a new claim of ineffective assistance of counsel, raised by Perry for the first time on appeal, was also barred by the rule of Knaffla. Perry, 705 N.W.2d at 574, 576.

Perry filed his second petition for post-conviction relief in April 2006 arguing that his Sixth Amendment right to a jury trial was violated because the State did not submit and prove beyond a reasonable doubt a violation of Minn.Stat. § 609.11 (2006), in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Perry v. State, 731 N.W.2d 143, 145, 147 (Minn.2007). The postconviction court summarily denied relief, concluding that Perry’s claim was meritless because Blakely did not apply retroactively to his claim and because Perry was sentenced to a mandatory term of life imprisonment. Id. at 145. We affirmed. Id. at 147.

On July 25, 2007, Perry filed his third petition for postconviction relief. He subsequently amended his petition, filed a separate (fourth) petition, filed responsive memoranda, and made a number of motions in regard to his postconviction petitions. The postconviction court denied all his claims without a hearing. Perry appeals, arguing: (1) his right to a jury trial was violated because the jury did not make any findings regarding Minn.Stat. § 609.11; (2) his right to a fair trial was violated by prosecutorial misconduct; and (3) the postconviction court erred by not ruling on Perry’s various postconviction motions.

A person convicted of a crime may petition the district court for postcon-vietion relief under Minn.Stat. § 590.01, subd. 1 (2006). The petition must contain a “statement of the facts and the grounds upon which the petition is based and the relief desired.” Minn.Stat. § 590.02, subd. 1(1) (2006). A postconviction court must hold an evidentiary hearing if the petitioner alleges facts that, “if proved, would entitle [the] petitioner to the requested relief.” Cooper v. State, 745 N.W.2d 188, 190 (Minn.2008) (alteration in original) (internal quotation marks omitted). But a petitioner is prohibited from raising a claim in a petition for postconviction review if that claim was already raised on direct appeal or if that claim was known or should have been known, but was not raised, at the time of direct appeal. Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. On review of a postconviction court’s denial of relief, we review factual findings “to determine if there is sufficient evidence in the record to sustain them,” and we review any legal claims de novo. Ganpat v. State, 746 N.W.2d 891, 892-93 (Minn.2008).

I.

Perry first claims that his right to due process was violated because his use of a firearm, as required to enhance his sentence under Minn.Stat. § 609.11, was not submitted as an element and proved beyond a reasonable doubt to the jury. Perry raised this claim in his second petition for postconviction relief and on appeal from the denial of that petition. Perry, 731 N.W.2d at 146. We concluded that the claim was barred by Knaffla. Id. at 146-47. We also addressed the merits of this claim, noting that the rule in Blakely is not retroactive. Id. at 147 (citing State v. Houston, 702 N.W.2d 268, 273 (Minn.2005)). The claim therefore is barred by Knaffla.

We hold that the postconviction court did not err in denying Perry’s claim for relief based on section 609.11.

II.

Perry next claims that one of the prosecutors at his trial committed misconduct warranting a new trial. Specifically, Perry argues that the prosecutor’s June 2006 guilty plea to a felony fifth-degree controlled substance offense violated the Minnesota Rules of Professional Conduct and that the prosecutor’s admitted ongoing drug addiction means he was under the influence of drugs while prosecuting Perry’s case. Perry argues that the prosecutor’s misconduct included, among other things: telling a witness to lie to the grand jury, introducing hearsay statements, allowing police officers to give false testimony, and committing misconduct in the State’s opening statement and closing arguments.

We look first at the specific instances of alleged misconduct. Perry knew or should have known of all of the specific instances of misconduct he cites at the time of direct appeal. Perry’s claims regarding misconduct related to the grand jury, hearsay statements, false testimony, and the opening and closing statements therefore are barred by Knaffla. See, e.g., Cooper, 745 N.W.2d at 191.

In addition to these specific instances, Perry also claims that the prosecutor must have been on drugs during his trial and that the prosecutor therefore must have committed prejudicial misconduct. This claim seems to be based on the prosecutor’s acknowledgment that he struggled with drug abuse for some time, and it does not appear to be a claim that Perry knew or should have known about at the time of his direct appeal. We therefore conclude that the claim is not subject to the Knaffla bar, and we turn next to the question of whether the postconviction court erred in denying the claim without an evidentiary hearing.

When we review the decision to deny a postconviction petition without a hearing, “we resolve any doubts about whether an evidentiary hearing is required in favor of the petitioner.” Patterson v. State, 670 N.W.2d 439, 441 (Minn.2003). But if the petition, files, and the record conclusively show that the petitioner is entitled to no relief, we do not require an evidentiary hearing. Id.; Minn.Stat. § 590.04, subd. 1 (2006). In order to warrant an evidentiary hearing, a petitioner’s allegations “must be more than argumentative assertions without factual support.” Stutelberg v. State, 741 N.W.2d 867, 872 (Minn.2007) (internal quotation marks omitted). Perry has not met this standard.

Although the prosecutor pleaded guilty to a felony, the prosecutor’s offense occurred nearly a decade after Perry’s trial and Perry has not asserted any facts related to his own trial to support his generic claim of misconduct. Perry’s general assertion that the prosecutor was using controlled substances while prosecuting Perry’s trial is an argumentative assertion without factual support. Likewise, Perry’s unsupported speculation that the prosecutor’s alleged drug use during the trial must have lead to unspecified misconduct does not entitle Perry to an evidentiary hearing.

We hold that the postconviction court did not err in denying Perry’s prosecutorial misconduct claim without an evidentiary hearing.

III.

Perry’s last claim is that the postconviction court erred because it did not respond to Perry’s motions as required by Minn. Stat. § 546.27, subd. 1 (2006). This statute requires courts to act on “all motions and matters submitted to a judge for a decision in trial and appellate matters” within 90 days. Id. We have carefully reviewed the record and are satisfied that the postcon-viction court responded to all of Perry’s motions in either its October 16, 2007 or December 7, 2007 orders. We hold that Perry is not entitled to any relief on this claim.

Affirmed.

      . The legislature renumbered Minn.Stat. § 609.185(1), changing it to Minn.Stat. § 609.185(a)(1) effective July 1, 2002. Act of May 22, 2002, ch. 401, § 15, 2002 Minn. Laws 1673, 1683. None of the relevant language in the statutory provision cited in this opinion was changed. Accordingly, for simplicity, we cite to the 2006 edition of the Minnesota Statutes.

      . Perry filed a motion to amend his third postconviction petition after the postconviction court had already denied relief; the post-conviction court treated this motion as Perry’s fourth petition for postconviction relief.

      . The only exceptions to Knaffla are (1) for claims so novel "that the legal basis was not available on direct appeal” or (2) when fairness requires the issue be considered and “the petitioner did not deliberately and inexcusably fail to raise the issue on appeal.” Buggs v. State, 734 N.W.2d 272, 274 (Minn.2007) (internal quotation marks omitted).

      . Section 609.11 provides a mandatory minimum sentence for defendants who commit certain felonies using a firearm. Minn.Stat. § 609.11, subd. 5(a). Because section 609.11 "functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence,” we have held that under Blakely a defendant cannot be sentenced under section 609.11 without either findings made by the fact finder or an admission by the defendant. State v. Barker, 705 N.W.2d 768, 772 (Minn.2005) (internal quotation marks omitted).

      . Moreover, as noted in our opinion on Perry’s appeal from the denial of his second petition for postconviction relief, "[b]ecause Perry was sentenced to life imprisonment under Minn.Stat. § 609.185(a)(1) (2006), the changes [to section 609.11] have no impact on Perry's petition.” 731 N.W.2d at 144 n. 1.

      . To the extent Perry alleged any specific facts, those claims are addressed above and are Knaffla-b&rred.


text:
    Karon Allen WHITTAKER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2397.
    Supreme Court of Minnesota.
    July 31, 2008.

      Nekima Levy-Pounds, Artika Tyner, Minneapolis, for appellant.
    Lori Swanson, Attorney General, Michael 0. Freeman, Hennepin County Attorney, for respondent.
   OPINION

MEYER, Justice.

Appellant Karon Allen Whittaker, currently serving a life sentence for first-degree murder, has filed a petition for postconviction relief in which he asserts that newly-discovered evidence requires that he receive a new trial. The district court denied Whittaker’s petition without an evidentiary hearing, and we affirm.

On the night of January 29, 1996, two armed men forcibly entered the Minneapolis residence of Barbara Brandt and demanded money. Both intruders wore face coverings, and one wore a red jacket. The man in the red jacket wielded a semiautomatic pistol, the other a sawed-off rifle. A struggle ensued, during which a resident of the house, Bradley Ruede-busch, was shot and killed by the man in the red jacket. Another resident was also shot, but survived his injuries. Both intruders then fled from the residence.

Shortly thereafter, two Minneapolis police officers on patrol received a radio dispatch describing the suspects in Ruede-busch’s murder. At about that time, the officers observed Whittaker — who was wearing a red jacket — and Karon Baldwin walking a short distance from the Brandt residence. When the officers instructed the men to approach their squad car, both fled, had to be chased, and they were arrested. Upon searching Baldwin, the officers discovered a semi-automatic pistol and a sawed-off rifle in his possession.

Following his arrest, Whittaker was indicted for first-degree murder in connection with Ruedebusch’s death. Baldwin, who was tried and convicted separately for his involvement in the shooting, was subpoenaed as a witness against Whittaker but refused to testify at trial, despite a grant of immunity, and was held in contempt of court. The jury found Whittaker guilty of first-degree murder, and the district court sentenced him to a life term in prison. Whittaker appealed on grounds unrelated to the present postconviction petition, and we affirmed. State v. Whittaker, 568 N.W.2d 440, 447 (Minn.1997).

On July 27, 2007, Whittaker filed a petition for postconviction relief, arguing that newly-discovered evidence, in the form of an affidavit by Baldwin, exonerates him. In that affidavit, Baldwin alleges that he and two other individuals — Christopher Johnson and a man referred to only as “Tron”- — robbed the Brandt residence where Ruedebusch was killed. Baldwin claims that Johnson wore a red jacket during the robbery and that it was Johnson who shot Ruedebusch. Baldwin also maintains that, after he and Johnson left the Brandt residence, they encountered Whittaker, who exchanged jackets with Johnson. The affidavit further states that Baldwin asked Whittaker to help hide the murder weapon, but that Whittaker declined because he had no place to conceal a weapon. As to his refusal to testify at Whittaker’s trial, Baldwin explains that he refused to testify because he wanted to protect Johnson. The district court denied Whittaker’s petition without an evidentiary hearing, and Whittaker now appeals.

Under Minn.Stat. § 590.01, subd. 1 (2006), an incarcerated individual may petition for postconviction relief on the ground that the conviction violated his rights under state or federal law. An evidentiary hearing must be held on a petition for postconviction relief unless “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat § 590.04, subd. 1 (2006). On appeal from the decision of a postconviction court, we review legal matters de novo and review factual findings to determine whether they are supported by sufficient evidence in the record. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003).

In order for postconviction relief to be granted on the basis of newly-discovered evidence, a petitioner must establish that (1) the evidence was unknown to him and his counsel at the time of trial; (2) the failure to discover' that evidence before trial was not due to a lack of diligence; (3) the evidence is material (i.e., not impeaching, cumulative, or doubtful); and (4) the evidence would probably produce a more favorable result on retrial. Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). This test is also applicable when, as here, the petitioner’s claim is based on evidence that is technically “newly available,” rather than “newly discovered.” State v. Warren, 592 N.W.2d 440, 450 (Minn.1999).

The postconviction court concluded that Whittaker could not satisfy the Rainer newly-discovered evidence test in part because the information in Baldwin’s affidavit was known to Whittaker at the time of trial, given that “the evidence clearly shows that [Whittaker] and Baldwin were arrested together” on the night of the murder. Whittaker asserts on appeal that the information in Baldwin’s affidavit was unknown to him at the time of trial and necessitates a new trial under Rainer.

As our precedent makes clear, the statement of an individual who refused to testify at trial is not “unknown” for the purposes of Rainer if, at the time of trial, the petitioner knew the substance of the testimony that individual might provide. In Warren, for example, a witness who refused to testify at the petitioner’s trial later came forward with an affidavit providing exculpatory information. 592 N.W.2d at 446-47. We concluded that the proffered evidence was not “unknown,” on the ground that, “even though [the witness] may have been unavailable to testify at * * * trial because he invoked the Fifth Amendment, [petitioner] and his counsel knew the substance of the testimony [the witness] might provide at the time of [petitioner’s] trial.” Id. at 450 (emphasis added). Further, testimony cannot be “unknown” if the petitioner was admittedly present at the time of the events the witness purports to describe. This principle is illustrated by Pierson v. State, in which the petitioner offered the testimony of a witness who had participated in the crimes of which the petitioner was accused. 637 N.W.2d 571, 577 (Minn.2002). We held that the witness’s testimony was not unknown at the time of trial, observing that the petitioner and witness “were together” during the events in question and, therefore, the petitioner “undoubtedly knew that [the witness] had information regarding [petitioner’s] involvement in those events.” Id. We further explained that, under Warren, this analysis was not altered merely because the witness had refused to testify at the petitioner’s trial. Id. at 577-78.

According to Baldwin’s affidavit, Baldwin was with Whittaker on the night of the murder, observed Whittaker exchange jackets with the actual murderer, and spoke to Whittaker about concealing the murder weapon. As a result, Whittaker would have known at the time of trial that Baldwin, if he were to testify, might (1) explain why Whittaker was wearing the incriminatory red jacket at the time he was arrested; (2) either provide the identity of the actual murderer who gave Whit-taker the jacket or confirm that Whittaker was not the murderer; and (3) provide further details regarding the events surrounding the murder. Thus, the substance of Baldwin’s affidavit was not “unknown” under Warren and Pierson and cannot satisfy the first element of Rainer. And because Baldwin’s affidavit — even when taken at face value — cannot satisfy the first element of Rainer, Whittaker is not entitled to an evidentiary hearing on his claim. “[A]n evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to entitle him or her to the relief requested.” Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). As a result, the postconviction court did not err by denying Whittaker’s petition without an evidentiary hearing, given that the record conclusively shows that Whit-taker is not entitled to relief. Minn. Stat § 590.04, subd. 1.

Affirmed.

PAGE, J., took no part in the consideration or decision of this case.

      . Further details regarding the murder, as well as the events surrounding Whittaker's arrest, conviction, and appeal, may be found in our opinion on direct appeal.

      . A due process claim based on Baldwin’s affidavit was also asserted below, but was not addressed by the district court and appears to have been abandoned on appeal.

      . A number of federal courts have reached similar conclusions. See United States v. Dale, 991 F.2d 819, 838-39 (D.C.Cir.1993) ("The unanimous view of circuits that have considered the question is that [the requirement that the evidence be discovered after trial] is not met simply by offering the post-trial testimony of a co-conspirator who refused to testify at trial.”); see also United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992) (stating that post-trial statement of codefendant who refused to testify at trial does not constitute newly-discovered evidence); United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir.1984) (same); United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2d Cir.1973) (“[A] court must exercise great caution in considering evidence to be ‘newly discovered’ when it existed all along and was unavailable only because a co-defendant, since convicted, had availed himself of his privilege not to testify.”); McAteer v. United States, 148 F.2d 992, 993 (5th Cir.1945) (holding that statement of individual who refused to testify at defendant's trial “was not newly discovered”).