Nichols v. Persson

                                      548

        Argued and submitted August 14, 2018, affirmed June 10, 2020


                        KIERIN NICHOLS,
                        Petitioner-Appellant,
                                  v.
                          Rob PERSSON,
                          Superintendent,
                 Coffee Creek Correctional Facility,
                       Defendant-Respondent.
                 Washington County Circuit Court
                        C150810CV; A163249
                                   

     Petitioner appeals from a judgment denying her petition for post-conviction
relief. In the underlying criminal case, petitioner was convicted of intentional
murder, first-degree theft, and unlawful possession of a controlled substance.
Petitioner denied killing the victim and opposed any defense strategy that implicated her in that crime. In accordance with her wishes, her trial counsel pursued a defense theory that the victim either died of natural causes or was killed
by someone else. Petitioner asserts that counsel’s selection of defense theories
was not based on a constitutionally adequate investigation of her mental illness,
intellectual capacity, or drug dependence and the effect of those conditions on her
ability to form the requisite intent for intentional murder. Without that investigation, she argues that trial counsel could not adequately advise her or rely on
her refusal to pursue a particular defense. Held: Because petitioner presented
no evidence that she would have cooperated with a defense based on her diminished capacity had she been presented with adequate information and advice
and because she did not show that there was more than a “mere possibility” that
competent counsel could have presented such a defense without her consent, petitioner failed to demonstrate that she was prejudiced by the alleged deficiencies in
the representation afforded to her.
    Affirmed.



   Linda Louise Bergman, Senior Judge.
   Lindsey Burrows argued the cause for appellant. Also on
the briefs was O’Connor Weber LLC.
   Adam Holbrook, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
______________
   * Egan, C. J., vice Garrett, J. pro tempore.
Cite as 

 (2020)   549

  ORTEGA, P. J.
  Affirmed.
550                                                 Nichols v. Persson

          ORTEGA, P. J.
          Petitioner appeals from a judgment denying her
petition for post-conviction relief. In the underlying criminal case, petitioner was convicted of intentional murder,
ORS 163.115(1)(a) (2017), amended by Or Laws 2019, ch 635,
§ 4,1 first-degree theft, ORS 164.055, and unlawful possession of a controlled substance, former ORS 475.840(3)(b)
(2009), renumbered as ORS 475.752(3)(b). Petitioner denied
killing the victim and opposed any defense strategy that
implicated her in that crime. In accordance with her wishes,
her trial counsel pursued a defense theory that, based on
the evidence, the victim either died of natural causes or
was killed by someone else. Petitioner asserts in her post-conviction case that counsel’s selection of defense theories
was not based on a constitutionally adequate investigation
of her mental illness, intellectual capacity, or drug dependence and the effect of those conditions on her ability to
form the requisite intent for intentional murder. Without
that investigation, she argues that trial counsel could not
adequately advise her or rely on her refusal to pursue a particular defense.
         We conclude that, because petitioner presented no
evidence that she would have cooperated with a defense
based on her diminished capacity had she been presented
with adequate information and advice and because she did
not show that there was more than a “mere possibility” that
competent counsel could have presented such a defense
without her consent, petitioner failed to demonstrate that
she was prejudiced by the alleged deficiencies in the representation afforded to her. Accordingly, we do not address
whether trial counsel was constitutionally inadequate for
failing to investigate, and we affirm.
        We take the following facts about the underlying
criminal trial from our opinion in the direct appeal, State
v. Nichols, 

, 

 (2012), rev den,

 (2013), as supplemented by undisputed evidence
in the post-conviction record. Petitioner was convicted of

    1
      In 2019, ORS 163.115 was amended to rename the crime of murder defined
therein as “murder in the second degree.” See Or Laws 2019, ch 635, § 4.
Cite as 

 (2020)                             551

intentional murder, first-degree theft, and unlawful possession of a controlled substance based on killing her elderly
neighbor while stealing her neighbor’s prescription medication and other items. Id. at 116. Petitioner had admitted to
stealing prescription medication and a ring from her neighbor when those items were found on her during the police
investigation, but she argued at trial, based on the evidence
and the incomplete and compromised investigation by the
police, that the victim had died of natural causes or was
killed by someone else.
         At trial, defense counsel did not attempt to present
either a complete or a partial defense to murder based on
petitioner’s mental illness, intellectual disability, or drug
dependence. Trial counsel did argue, however, that petitioner’s “bizarre” behaviors during police interviews and
statements made while incarcerated were due to her mental
illness or intellectual disability and were not an indication
of her guilt. To support that argument, trial counsel had
sought to introduce testimony from Dr. James Harper, who
evaluated petitioner shortly before trial, and Gary Eby, who
was petitioner’s mental-health counselor before her incarceration. The trial court did not allow Dr. Harper’s testimony
when it was offered, because it was offered before the state
admitted statements made by petitioner that trial counsel
sought to explain through Dr. Harper’s testimony and, thus,
the court concluded that the testimony would be confusing
to the jury. Petitioner’s trial counsel did not make any further attempts to offer Dr. Harper’s testimony at trial. The
trial court also excluded Eby’s testimony as not relevant to
the issues for which trial counsel sought to use it, because
counsel did not connect Eby’s diagnoses of petitioner to
her behaviors. Nichols, 

. On appeal, we
affirmed petitioner’s convictions. We concluded that Eby’s
testimony was inadmissible under OEC 702, because it did
not include an explanation that linked petitioner’s behavior
during the investigation and her mental health conditions.

.
        Petitioner then petitioned for post-conviction relief,
alleging that her trial counsel was constitutionally inadequate under Article I, section 11, of the Oregon Constitution
and the Sixth and Fourteenth Amendments to the United
552                                           Nichols v. Persson

States Constitution. As relevant on appeal, she alleged that
trial counsel was inadequate in the following ways:
      “G. Trial counsel did not provide a foundation for the testimony of Dr. James Harper. Trial counsel did not provide a
  rudimentary explanation that linked the Petitioner’s behavior to Dr. Harper’s testimony. One example of Petitioner’s
  behavior that Dr. Harper could explain was how Petitioner
  behaved when talking about her dogs when she was anxious.
  This is an alternative explanation of her mental faculties
  that is inconsistent with the state’s theory and proof of the
  case. Without this explanation of her psychological state, the
  jury relied on this diversion technique or her behavior to
  convict her of the offense. Counsel failed to demonstrate professional skill and judgment commensurate with the seriousness of the case in failing to help the jury better assess
  Petitioner’s statements in recorded telephone calls from the
  jail by explaining her bizarre behavior by identifying its
  emotional antecedents. If the jury had received this information, the jury would have acquitted petitioner or found
  her guilty of a lesser included offense. …
      “H. Dr. James Harper evaluated Petitioner and had
  diagnosed her with bipolar disorder, borderline personality
  disorder, a history of substance abuse dependency and kleptomania. Trial counsel did not offer any explanation how
  those diagnoses might generally affect someone’s behavior,
  or in the alternative, how the diagnoses affect Petitioner’s
  behavior. There is no proffered explanation how the diagnoses affect Petitioner’s behavior. Dr. Harper’s explanations
  would assist the jury in assessing petitioner’s behavior, but
  trial counsel did not elicit explanations from the witness. If
  the jury had this information, the jury would have acquitted
  Petitioner or found her guilty of a lesser included offense.
      “I. Trial counsel did not ask Dr. James Harper to
  explain Petitioner’s opiate addiction and mental status,
  which provide a defense or negate an element of the charged
  crime. This would have resulted in an acquittal or conviction of a lesser included offense.
     “J. Trial counsel did not investigate and obtain documentation of Petitioner’s mental health and medical treatment. Trial counsel did not present mental health information or testimony to the jury. This evidence provides a
  complete defense or can negative the intent element of the
  crime of murder. When intent is uncertain the jury verdict
Cite as 

 (2020)                                 553

  must result in an acquittal or conviction of a lesser offense.
  Most if not all mental health documentation has been
  destroyed by the service provider. Petitioner was unable to
  present this evidence during her trial and was prejudiced
  by trial counsel’s failure to obtain the records and information while the case was pending in 2008 and 2009.
      “K. Trial counsel did not consult or call an expert witness on the effects of painkiller addiction. Trial counsel did
  not present an explanation about the behavior of addicted
  or habitual users. Trial counsel did not investigate and
  present information to the jury explaining the contraindications of the medications Petitioner was taking at the time
  of the incident. This would have explained the prior theft
  of [the victim’s] belongings and medications and presented
  a defense based on Petitioner’s mental health at the time of
  the event, resulting in an acquittal.
      “L. Trial counsel did not investigate Petitioner’s evaluations and treatment at ‘Options for Southern Oregon’
  from 2003 until the date when Petitioner was arrested for
  this charge. All of the records prior to Petitioner’s arrest
  have been destroyed due to age, pursuant to agency policy. Petitioner was unable to present any defense because
  trial counsel did not obtain this information while the case
  was pending in 2008-2009. If the jury had been provided
  with information about Petitioner’s mental health and how
  her mental health affected her actions at the time of this
  offense, the jury would have acquitted her or found her
  guilty of a lesser included offense.
     “…
      “N. Trial counsel failed to investigate petitioner’s
  treatment at the ‘Pain Specialists of Southern Oregon.’
  Dr. Joseph Savino was the Petitioner’s care provider and
  trial counsel did not investigate or consult with the doctor
  about Petitioner’s health, examination results of imaging
  performed on her, and no injury is in the record regarding
  investigation of the prescriptions that Dr. Savino wrote for
  Petitioner. Petitioner was prescribed the same medication
  that was in her possession after the death in this case. This
  contradicts any inference Petitioner was desperate to steal
  medication from the victim or had a motive to steal because
  Petitioner had prescribed access to medication. If the
  jury had this information, the jury would have acquitted
  Petitioner or found her guilty of a lesser included offense.”
554                                        Nichols v. Persson

         In support of those allegations, petitioner presented
two declarations from Dr. Harper, a psychological examination of petitioner performed by Dr. Alexander Duncan, and
declarations from two criminal defense attorneys.
         Dr. Harper attested that, when he was asked by
petitioner’s trial counsel to evaluate her, he was not given
a specific referral question but was to evaluate her mental state “in general.” He diagnosed petitioner with “opioid dependence, anxiety disorder, and depressive disorder
not otherwise specified.” He also attested that she exhibited unusual “idiosyncratic behavior” and that her actions
were “affected by her circumstances and diagnosis.” With
regard to documentation, he attested that petitioner’s trial
counsel did not give him a list of petitioner’s medications
or medical records for when she was hospitalized and in a
coma. Dr. Harper stated that, had he been given that information, it would have affected his diagnoses of petitioner
and he would have changed his advice to petitioner’s trial
counsel. He further stated that, based on that information,
additional investigation was required to “fully and meaningfully understand [petitioner’s] mental functioning.”
          Dr. Duncan prepared a report in which he opined
that, at the time of the alleged crimes, petitioner “was experiencing co-occurring substance abuse problems, psychiatric
symptoms, and potential cognitive impairment” and that, “[i]f
these issues had been fully explored, assessed, and were
indeed present to the extent she exhibited during this exam,
it would have raised strong questions about [petitioner’s] mental state and capacities to form intent.” However, he acknowledged that it was difficult to determine the degree to which
her cognitive deficits were present at the time of the crimes
and that “[i]t’s possible that her cognitive limitations have
developed over this detention period,” particularly considering the medical problems she developed while in detention
and her family history of dementia. Dr. Duncan opined that,
at the time of the alleged crimes, petitioner met the criteria
for “Opioid Use Disorder, Severe; Sedatives, Hypnotics, or
Anxiolytics Use Disorder, Severe; Unspecified Anxiety Disorder; Unspecified Depressive Disorder; Borderline Intellectual
Functioning; and Unspecified Neurocognitive Disorder (Provisional).” Dr. Duncan did not conduct a criminal responsibility
Cite as 

 (2020)                                           555

evaluation of petitioner and did not ask petitioner about the
crime itself, clarifying in his deposition that he did not offer
an opinion about “the extent that [her diagnoses] impacts …
her abilities to form intent, her capacities to appreciate criminality to perform conduct.” He also clarified that he did not
opine that petitioner necessarily had a mental-health defense,
just that it could have been explored and considered.
          Petitioner also presented the declarations of two
criminal defense attorneys, Russell Barnett and Bronson
James. Barnett attested that, among other things, “[t]rial
counsel must be adequately informed before making a tactical decision not to address information and cannot reasonably advise petitioner when counsel is not informed.” He also
stated that, “[i]f trial counsel had engaged in any investigation into [petitioner’s] mental health history, her brain injury
and mental impairment, it would undeniably have changed
the trial approach and the conclusions of the finder of fact.”
Similarly, James attested that, among other things, “[i]f trial
counsel would have engaged in any investigation into [petitioner’s] mental health history[,] her brain injury and mental
impairment[,] [it] may have changed the trial approach and,
potentially, the conclusions of the trier of fact.”
          The state2 presented a declaration from petitioner’s
lead trial counsel, and he also testified at the hearing. In
addition to representing petitioner in the underlying case,
lead counsel had also previously represented her on a felony
criminal charge. He attested that, after many interactions
with petitioner, he did not have any concern that she could
not understand what he told her or that she was unable to
aid and assist in her defense. He was aware of her opioid
addiction and that she had “some mental health issues,”
such as anxiety, depression, and a personality disorder. He
testified, however, that Dr. Harper did not diagnose petitioner with kleptomania, which causes impulsive stealing,
because “she planned out and researched her thefts in order
to be able to make money.”
          In addition to talking to petitioner, lead counsel
also spoke with petitioner’s counselor, Eby, and petitioner’s

   2
     For simplicity, we refer to defendant, the superintendent of Coffee Creek
Correctional Facility, as “the state” throughout this opinion.
556                                            Nichols v. Persson

husband about her mental health and drug use and how
they affected her. With that information, counsel “explained
to petitioner both the defenses of guilty except for insanity
(GEI) and diminished capacity, but she was opposed to pursuing any defense that relied on admitting that she killed
the victim. She denied repeatedly that she had anything to
do with the victim’s death.” Counsel did not believe that petitioner would cooperate with any defense in which trial counsel would have to admit that petitioner killed the victim or
in which petitioner would admit to killing the victim. Thus,
he believed that it would have been difficult or impossible to
pursue such a defense on her behalf and, as a result, he “did
not see any potential benefit to having a criminal responsibility exam conducted.” He also attested that he would not
have pursued a GEI or a diminished capacity defense, even
with an exam to support it, unless petitioner admitted to
killing the victim.
         The post-conviction court denied relief, concluding
that trial counsel was not inadequate and, even if counsel
were inadequate, there was no resulting prejudice to petitioner. The court entered the following findings with respect
to the claims that were based on allegations that trial counsel failed to investigate her mental illness, intellectual
capacity, and drug dependence:
       “G. H. I. J. K. L. O. Pet[itioner] makes numerous claims
   about [her] trial attorney not fully investigating mental
   health and drug addiction issues. All of those claims fail.
   There is no allegation or evidence that pet[itioner] could not
   aid and assist. Attorney and pet[itioner] spoke about mental health defenses, but pet[itioner] steadfastly denied she
   killed the victim and was not willing to use those defenses
   which would mean admitting to the homicide. What use
   would it have been for the attorney to investigate those
   issues further? The attorney went with what pet[itioner]
   told him—that she didn’t commit the homicide. There is
   also no expert opinion in this trial that pet[itioner] qualified for a GEI or diminished capacity defense.
      “…
      “N. There is no proof that at the time of the homicide,
   pet[itioner] had any prescription for the drugs found in her
   possession.”
Cite as 

 (2020)                                                   557

         On appeal, petitioner argues that the post-conviction
court erred in rejecting her claims G., H., I., J., L., and N.,
set out above, based on its determination that trial counsel
made a reasonable trial decision to adopt a theory of defense
based on petitioner’s denial that she killed the victim.3
Petitioner asserts that counsel’s selection of that theory was
not based on an adequate investigation of petitioner’s mental illness, intellectual capacity, and drug dependence at the
time of the crime and, thus, counsel could not accurately
advise petitioner or rely on petitioner’s choice not to pursue
certain defense theories. She argues that potential defenses
that trial counsel could have pursued with petitioner
after making an adequate investigation were the affirmative defenses of GEI, ORS 161.295,4 or extreme emotional

     3
       Petitioner asserts in four assignments of error that her trial counsel
were inadequate for (1) failing to “investigate petitioner’s mental health and
medical treatment,” (2) failing to “obtain records regarding petitioner’s treatment at ‘Options for Southern Oregon’ from 2003 until the date of her arrest,”
(3) failing to investigate petitioner’s treatment at “ ‘Pain Specialists of Southern
Oregon,’ ” and (4) failing to “lay a proper foundation for Dr. Harper’s testimony
and to call Dr. Harper to discuss petitioner’s mental health and addi[c]tion
issues.”
     As noted, she argues that those assignments of error are based on the post-conviction court’s rejection of her claims G., H., I., J., L., and N. Petitioner, however, combines her argument for all of those claims, framing it as a failure of
trial counsel to adequately investigate her mental conditions and drug dependence, which rendered trial counsel unable to properly advise petitioner. Because
we conclude that that argument, as framed, does not provide a basis for us to
reverse the post-conviction judgment, we do not address whether that argument is properly encompassed by her claims as alleged in her post-conviction
petition. See Hale v. Belleque, 

, 

, adh’d to on
recons, 

, 

, rev den, 

 (2013) (“The allegations of the petition frame the issues that a post-conviction court can consider,
and a petitioner who fails to raise a claim in a petition for post-conviction relief
has waived it and is foreclosed from making arguments on claims not raised in
the petition, Bowen v. Johnson, 

, 

, rev den, 

 (2000), or that expand on the claims pleaded. Leyva-Grave-De-Peralta
v. Blacketter, 

, 

 (2009), rev den, 

(2010).”).
     4
       GEI is an affirmative defense. ORS 161.305. Under ORS 161.295:
          “(1) A person is guilty except for insanity if, as a result of a qualifying
     mental disorder at the time of engaging in criminal conduct, the person lacks
     substantial capacity either to appreciate the criminality of the conduct or to
     conform the conduct to the requirements of law.
          “(2) As used in chapter 743, Oregon Laws 1971, the term ‘qualifying mental disorder’ does not include an abnormality manifested only by
     repeated criminal or otherwise antisocial conduct, nor does the term include
     any abnormality constituting solely a personality disorder.”
558                                                       Nichols v. Persson

disturbance, ORS 163.135,5 or a general defense that her
mental conditions or drug dependence prevented her from
forming the requisite mental state at the time of the crime,
using statutes such as ORS 161.125(1) or ORS 161.300.6
That more general defense is generally referred to as a
diminished-capacity or partial-responsibility defense. See,
e.g., Cox v. Howton, 

, 841 n 1, 

(2015) (explaining that “[t]he inability to form the requisite mental state element of a charged crime is frequently
referred to as diminished capacity”). Petitioner expressly
disclaims that her post-conviction claims are premised on
the basis that trial counsel was ineffective for failing to
assert any of those defenses on her behalf, over her objection; instead, she seeks post-conviction relief based on the
alleged failure to investigate.
         We review the post-conviction court’s denial of relief
for legal error. In so doing, we accept “the court’s implicit
and explicit factual findings if there is evidence to support
them.” Pike v. Cain, 

, 

    5
      ORS 163.135(1) (2017), amended by Or Laws 2019, ch 635, § 19, provides:
         “It is an affirmative defense to murder for purposes of ORS 163.115(1)(a)
    that the homicide was committed under the influence of extreme emotional
    disturbance if the disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act and if there is a reasonable explanation for the disturbance. The reasonableness of the explanation
    for the disturbance must be determined from the standpoint of an ordinary
    person in the actor’s situation under the circumstances that the actor reasonably believed them to be. Extreme emotional disturbance does not constitute
    a defense to a prosecution for, or preclude a conviction of, manslaughter in the
    first degree or any other crime.”
    ORS 163.135(1) was amended in 2019 to conform its references to ORS
163.115 with the substantive amendments also made to that statute in 2019.
Or Laws 2019, ch 635, § 19. As a result, we refer to the 2017 version of ORS
163.135, which references the version of ORS 163.115 under which petitioner was
convicted.
    6
      ORS 161.125(1) provides:
         “The use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a
    defense to a criminal charge, but in any prosecution for an offense, evidence
    that the defendant used drugs or controlled substances, or was dependent
    on drugs or controlled substances, or was intoxicated may be offered by
    the defendant whenever it is relevant to negative an element of the crime
    charged.”
    ORS 161.300 provides that “[e]vidence that the actor suffered from a qualifying mental disorder is admissible whenever it is relevant to the issue of whether
the actor did or did not have the intent which is an element of the crime.”
Cite as 

 (2020)                                          559

(2020). “If the post-conviction court did not expressly make
factual findings, and if there is evidence from which the
facts could be decided more than one way, we will presume
that the facts were decided in a manner consistent with the
court’s ultimate conclusion.” Flores-Salazar v. Franke, 

, 

 (2014), rev den, 

(2015).
          Petitioner brought her post-conviction claims under
both the Oregon and federal constitutions. In Oregon, under
Article I, section 11, “[t]o be entitled to post-conviction relief
based on inadequate assistance of counsel, a petitioner must
show that counsel failed to exercise reasonable professional
skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo,

, 

 (2017) (citing Trujillo v. Maass,

, 

 (1991)). Similarly, under the
Sixth Amendment, “to demonstrate ineffective assistance
of counsel, a petition must show that trial counsel’s performance ‘fell below an objective standard of reasonableness’
… [and] he or she also must show that there was a ‘reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’ ”

 at 700 (quoting Strickland v. Washington, 

, 

, 

 (1984)). Because we conclude that it is dispositive, we address only the prejudice
prong of petitioner’s claim.7
          Petitioner has framed her claims as based on trial
counsel’s failure to reasonably investigate her conditions,
which resulted in trial counsel failing to properly advise
her of her defense options based on those conditions. In
the failure-to-investigate context, the Supreme Court has
stated that the test for prejudice under Article I, section 11,
is whether “there was more than a mere possibility” that
counsel’s failure to investigate in the ways alleged by
petitioner “could have tended to affect the outcome of the
[trial].” Richardson v. Belleque, 

, 268, 

 (2017). “[T]he assessment involves a sequential inquiry

   7
      Petitioner has not made a separate prejudice argument under the Sixth
Amendment to support her claim. Thus, we do not separately address that standard in our analysis.
560                                                     Nichols v. Persson

into whether ‘there was more than a mere possibility’ that
an adequate investigation would have yielded information
that could have been used at the [trial] in a way that gave
rise to ‘more than a mere possibility’ that the outcome of the
proceeding could have been different as a result.” Monfore
v. Persson, 

, 

 (2019) (quoting Richardson, 362 Or at 266-68 (internal quotation marks
omitted)).
          Because it is important to our analysis and to the
parties’ arguments, we emphasize that, here, the post-conviction court found that petitioner wished to maintain
her innocence and refused to proceed with any mental-health
defense because those defenses required admitting that she
killed the victim.8 Petitioner does not challenge those findings on appeal. Also, petitioner presented no evidence below
that, even if she were presented with additional information
and advice from counsel about defenses based on her mental
illness, intellectual capacity, or drug dependence, she would
have agreed to use such a defense.
         On appeal, petitioner argues that what she might
have agreed to do with correct advice does not matter
because, under Richardson, all she had to show for the
prejudice prong of her claim was that a reasonable investigation would have produced information that competent
counsel could have used in a way that tended to affect the
outcome of the case. She asserts that, here, a full investigation would have uncovered information that, in the words
of Dr. Duncan, “raised strong questions about [petitioner’s]
mental state and capacities to form intent.” That information, she asserts, could have been used by competent counsel
to support a mental-health defense. In particular, petitioner
argues that the information supports a diminished capacity
defense, because it raises reasonable doubt about petitioner’s

   8
      As provided above, the post-conviction court found in its letter opinion:
   “Attorney and pet[itioner] spoke about mental health defenses, but pet[i-
   tioner] steadfastly denied she killed the victim and was not willing to use
   those defenses which would mean admitting to the homicide. What use would
   it have been for the attorney to investigate those issues further? The attorney
   went with what pet[itioner] told him—that she didn’t commit the homicide.
   There is also no expert opinion in this trial that pet[itioner] qualified for a
   GEI or diminished capacity defense.”
Cite as 

 (2020)                                              561

capacity to form the required mental state at the time of the
crime, which was indicted as an intentional murder.9
         The state makes two main responses to petitioner’s
prejudice argument. First, the state argues that petitioner’s
prejudice argument fails because she presented no evidence
that she would have agreed to pursue any mental-health or
drug-dependence defenses had her trial counsel adequately
investigated and presented her with information to support
them. The state points out that, in a failure-to-advise claim,
the petitioner must show that she would have changed her
mind if she had been adequately advised, citing Moen v.
Peterson, 

, 

 (1991), and Gable v. State
of Oregon, 

, 

, cert den, 

(2013). Second, the state argues that petitioner cannot show
prejudice, because none of the evidence she offered in support of her post-conviction claims would have been admissible at trial to support a GEI, extreme emotional disturbance, or diminished capacity defense.
        Because we conclude that petitioner failed to demonstrate prejudice based on the first argument advanced by
the state, we do not address the state’s second argument.
We begin our analysis with a discussion of Richardson, on
which petitioner relies for her arguments, and Moen and
Gable, on which the state relies for its arguments.
         In Richardson, the issue was whether counsel conducted an inadequate investigation of the facts, particularly
of the petitioner’s juvenile background, to support counsel’s
strategic choice not to call an expert at the petitioner’s sentencing hearing to rebut the state’s expert’s opinion that
petitioner suffered from a personality disorder that qualified him for sentencing as a dangerous offender. 362 Or at
258. After concluding that counsel’s investigation was constitutionally inadequate, the court addressed prejudice and
determined that “it was more than a mere possibility that

    9
      To the extent petitioner argued in reply and at oral argument that she also
meets the test for prejudice because evidence of her mental conditions could have
been used in mitigation at sentencing, we reject that argument as unpreserved.
See Hale, 

 (“Preservation principles apply in the context of
post-conviction relief and, as a general rule, arguments not made to the post-conviction court in support of a claim will not be considered on appeal.”).
562                                           Nichols v. Persson

competent defense counsel could have used the information
from [the petitioner’s expert’s] report in ways that ‘could
have tended to affect’ the outcome of the dangerous-offender
hearing.” Id. at 266. The court then discussed several ways
counsel could have used the information directly or in crossexamination of the state’s expert. Id. at 267.
         Richardson involved a straightforward failure of
trial counsel to fully investigate and discover the facts relevant to the strategy that counsel chose to pursue at petitioner’s sentencing hearing. Petitioner’s argument here is
not so straightforward as the one presented in Richardson,
because she has premised her claim on trial counsel’s failing
to properly advise her of her defense options after an adequate investigation. Thus, the state argues that Moen and
Gable apply, cases which address failure-to-advise claims.
        In Moen, the petitioner argued that his trial counsel
was ineffective for failing to advise him of the possibility of
a minimum sentence before he agreed to plead no contest.
312 Or at 505. The Supreme Court rejected the petitioner’s
argument that the failure to receive such advice rendered
his sentence per se unlawful. The court stated:
   “There are many reasons why a criminal defendant might
   wish to make a plea agreement, even though aware of the
   potential imposition of a minimum sentence. The possibility of a minimum sentence is not necessarily determinative
   in a criminal defendant’s decision to enter a plea. And, if a
   petitioner would not have changed the plea of guilty or no
   contest even with knowledge of a possible minimum sentence, there is no reason to set aside the conviction.”

Id. at 512. Thus, the court concluded that the petitioner had
to show that, had he received correct advice, he would not
have pleaded no contest. Id. at 513.
         In Gable, the petitioner argued that his trial counsel was ineffective for failing to inform him “that he had the
right to object, on ex post facto grounds, to the application
of a new sentencing law to his case.” 

. It was
undisputed that trial counsel should have so informed the
petitioner; the question before the court was whether the
petitioner was prejudiced by counsel’s failure to do so. The
Cite as 

 (2020)                            563

post-conviction court found that petitioner was not credible
and determined that, as a factual matter, petitioner did not
establish that he would have decided to not waive his ex post
facto rights had he been given the advice that he could raise
an ex post facto objection. Id. at 757. On appeal, the petitioner argued that the post-conviction court erred in that
respect. He asserted that, because he did not receive proper
advice, the post-conviction court engaged in mere speculation as to what he would have done with proper advice
and that, without proper advice, his sentence was unlawful.
Id. at 762. The Supreme Court rejected that argument,
because it assumed the very issue in contention, that is,
whether petitioner would have waived his ex post facto rights,
even if he had received proper advice. Because there could be
many reasons why the petitioner could elect to waive those
rights, the court concluded that the controlling question, “as
in Moen, is whether the receipt of correct advice about a possible ex post facto objection would have made a difference to
petitioner in this case.” Id. at 763.
         The significant feature of Moen and Gable that
distinguishes those cases from the discussion of prejudice
in Richardson is that Moen and Gable involved a failure to
investigate and advise the petitioner about decisions over
which the petitioner had sole control—whether to waive constitutional rights—whereas Richardson involved the failure
to investigate a chosen trial strategy, which trial counsel
could make the decision to pursue. To prove prejudice in
the former context, Moen and Gable require evidence that
the petitioner would have made a different decision if the
petitioner had received the correct advice from counsel.
Applying that distinction to this case, whether petitioner
had to show whether she would have changed her mind
upon receiving better-informed advice from counsel based
on an adequate investigation of her mental conditions and
drug dependence—as required by Moen and Gable—turns
on whether petitioner had control of the decision to pursue a
GEI, extreme emotional disturbance, or diminished capacity defense, or whether that was a trial strategy decision
that trial counsel could pursue even in light of petitioner’s
objective to maintain her innocence in any involvement in
the death of the victim.
564                                                       Nichols v. Persson

          Petitioner acknowledges that trial counsel could not
have raised an affirmative defense of GEI or extreme emotional disturbance over her objection or admitted that she
killed the victim over her objection. See McCoy v. Louisiana,
___ US ___, 

, 

 (2018)
(a criminal defendant has a Sixth Amendment right to
decide that the objective of the defense is to assert innocence; “[w]hen a client expressly asserts that the objective of
‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may
not override it by conceding guilt.” (Emphasis in original.));10
Thompson v. Cain, 

, 

 (2018)
(“When the defendant’s fundamental objective is to maintain
innocence regardless of the potential outcome, counsel may
not concede guilt [to a lesser-included offense] without the
affirmative consent of the defendant.”); Pratt v. Armenakis,

, 

, adh’d to on recons, 

, 

 (2005), rev den, 

 (2006)
(counsel was not constitutionally inadequate for failing to
raise a GEI defense where the petitioner told counsel “he did
not want to assert an ‘insanity’ defense,” relying on cases
that hold that a court cannot find a defendant guilty except
insane over the defendant’s objection); ORS 163.135(1) (2017)
(“It is an affirmative defense to murder for purposes of ORS
163.115(1)(a) that the homicide was committed under the
influence of extreme emotional disturbance.”). Based on
petitioner’s acknowledgement, with which we agree, petitioner cannot prove prejudice in this case based on a claim
that counsel could have used the information from an adequate investigation to pursue a GEI or extreme emotional
disturbance defense. In light of petitioner’s objective to
maintain her complete innocence in the victim’s death,

    10
       The United States Supreme Court also suggested, however, that “counsel
could, if consistent with providing effective assistance, focus his own collaboration
on urging that [the defendant’s] mental state weighed against conviction.” McCoy,

. But see 

 (Alito, J., dissenting) (“If [counsel] had conspicuously refrained from endorsing petitioner’s story and had based his defense
solely on petitioner’s dubious mental condition, the jury would surely have gotten
the message that [counsel] was essentially conceding that petitioner killed the
victims.”). That statement, however, does not hold that such a defense is consistent
with providing effective assistance, nor does the Court explain how such a defense
could be mounted without conceding guilt of a lesser-included offense in an intentional murder case. We thus do not consider it helpful to our analysis.
Cite as 

 (2020)                                 565

competent counsel could not pursue those defenses without
her consent, and petitioner presented no evidence that she
would have changed her mind about proceeding with such
defenses had trial counsel given her advice based on an adequate investigation.
         Petitioner, however, also argues that competent
defense counsel could have used evidence of her mental illness, intellectual disability, or drug dependence to raise reasonable doubt about her ability to form the requisite intent
at the time of the crime without conceding that petitioner
killed the victim. Thus, petitioner argues that the information about her conditions, particularly Dr. Duncan’s statement of the questions raised about her mental capacity to
form intent, could have been used by competent counsel at
trial in a way that could have affected the outcome of her
trial. As explained below, we reject that argument because
petitioner has not shown that she met the test for prejudice
set out in Richardson.
          In recent post-conviction cases, we have emphasized
what constitutionally adequate counsel is required to do in
light of a client’s trial objectives. In Thompson, we addressed
whether counsel was ineffective for conceding that the petitioner was guilty of lesser-included offenses of some of the
charged crimes, based on a defense that the petitioner had
the sexual encounters with the minor victim, but that those
encounters were consensual and the victim was not physically helpless. 

. The petitioner had not
explicitly objected to the strategy with defense counsel but
had maintained his complete innocence. We stated that,
   “after McCoy, even if a concession is not tantamount to a
   plea for purposes of requiring counsel to obtain a petitioner’s express consent, a petitioner’s fundamental objective to
   assert innocence is reserved to the client in the same way
   as the right to plead guilty, and that autonomy to direct the
   defense cannot be usurped by defense counsel.”

. We further explained that “the defendant must
be informed of counsel’s proposed strategy that requires the
concession of guilt, but when such a strategy conflicts with
defendant’s fundamental expressed objective to maintain
innocence, trial counsel ‘may not steer the ship the other
566                                           Nichols v. Persson

way.’ ” 

 (quoting McCoy, 

). We vacated
and remanded the case for the post-conviction court to make
findings of fact about the petitioner’s trial objective, because
it had not done so.
         In Evans v. Nooth, 

, 

(2019), the petitioner argued that his appellate counsel on
his direct appeal was constitutionally inadequate for failing to challenge all of the counts of which he was convicted.
The petitioner did not present any evidence regarding his
interactions with his appellate counsel or his objectives for
the appeal, so he advanced an argument that an appellate
counsel is categorically inadequate for failing to challenge
every conviction. 

. In addressing that claim, we
emphasized what decisions the client has control over, and
what decisions are left to counsel:
   “While there are a myriad of tactical decisions in how to
   best conduct litigation that are properly the province of the
   attorney, deciding on the broader objectives of litigation
   is the client’s decision to make. The lawyer is obligated to
   make tactical decisions that work towards those objectives,
   not against them.
      “As such, a petitioner cannot prevail on a claim for post-conviction relief if the attorney merely carried out tactical
   decisions at the directions of the client in furtherance of
   the client’s goals for litigation—goals that the client now
   regrets.”

 (emphasis added). We thus concluded that
without evidence of the petitioner’s appellate objectives, the
petitioner was not entitled to relief.
         Those cases establish that competent defense counsel must support a client’s broad trial objectives, particularly the objective to maintain complete innocence. The only
evidence here is that petitioner’s stated trial objective was
to maintain her innocence of having any role in the victim’s death and that petitioner has not presented any evidence that pursuing a diminished capacity defense would
have been consistent with her trial objectives. A diminished
capacity defense is based on demonstrating that the defendant did not have the capacity to form the required criminal intent, typically because of a mental disorder or drug
Cite as 

 (2020)                             567

use, at the time that the defendant engaged in the conduct
underlying the charge. See, e.g., Cox, 

 n 1
(“The inability to form the requisite mental state element
of a charged crime is frequently referred to as diminished
capacity.”). Petitioner argues here that such a defense could
have been presented without implicating her in killing the
victim. However, petitioner has not presented any argument
that demonstrates how competent counsel could use the evidence petitioner submitted in the post-conviction court in
a way that could affect the outcome at trial without crossing the line into conceding that petitioner killed the victim;
petitioner only speculates that it could be done.

          In addition, petitioner did not present evidence that
she did not have any capacity to form an intentional mental
state at the time of the crimes. In his deposition, Dr. Duncan,
who examined petitioner for purposes of the post-conviction
proceeding, despite raising “strong questions” in his report
about her capacity to form intent, testified that he was not
offering an opinion about “the extent that [her diagnoses]
impacts on her abilities to form intent.” By contrast, petitioner’s trial counsel testified that Dr. Harper, who examined petitioner before the underlying trial, did not diagnose
petitioner with kleptomania, which causes impulsive stealing, because “she planned out and researched her thefts in
order to be able to make money.” That evidence supports the
post-conviction court’s finding that “[t]here is also no expert
opinion in this trial that pet[itioner] qualified for a GEI or
diminished capacity defense.”

         We conclude that, in the absence of the context of
admitting, either explicitly or implicitly, that petitioner was
involved in the victim’s death, which is a decision over which
petitioner had control, it is speculation, and not more than
a “mere possibility,” that an adequate investigation would
have yielded information that competent counsel could have
used in a way that had more than a “mere possibility” to
affect the outcome of trial. Additionally, because petitioner
presented no evidence that she would have changed her mind
about her defense objectives if trial counsel had advised her
after conducting an adequate investigation, petitioner has
not shown that she was prejudiced by trial counsel’s failure
568                                      Nichols v. Persson

to so advise her. Accordingly, we affirm the post-conviction
court’s denial of relief.
        Affirmed.