TRACI LYNN MARANG v. BROWN (2026)

Petitioner appeals a judgment that denied post-conviction relief on her claim that counsel provided inadequate and ineffective representation under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, when he advised her to plead guilty without first consulting a forensic accounting expert. Petitioner claimed that if trial counsel had hired such an expert, she would not have accepted the state's plea offer but would have gone to trial. On appeal, petitioner raises three assignments of error. In her first two assignments of error, she argues that the post-conviction court erred when it quashed subpoenas that she had issued to her prior employer and the accounting firm that her employer had hired to perform a financial audit after the employer became aware of accusations that petitioner had stolen money from it. Petitioner sought those subpoenas to obtain information that she asserted was necessary to prove her claim against counsel. In her third assignment of error, she argues that the post-conviction court erred when it denied her claim of inadequate and ineffective assistance of counsel on the record before the court. We affirm.

FACTS AND PROCEDURAL HISTORY

In reviewing both a claim that the trial court erred when it quashed a subpoena and a claim that the trial court erred when it denied post-conviction relief, we are bound by the post-conviction court's findings of fact, so long as there is evidence in the record to support them. Tracy v. Nooth, 252 Or App 163, 165, 285 P3d 745 (2012), adh'd to on recons, 255 Or App 435, 299 P3d 565, rev den, 353 Or 868 (2013) (as to subpoenas); Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015) (as to denial of post-conviction relief). We state the facts in accordance with that standard.

Petitioner worked as the comptroller for Precision Electric (PE) and in that position had access to PE's funds, bank accounts, and credit card accounts. After law enforcement notified PE that petitioner may have been stealing money from them, PE hired Kosmatka, Donnelly, and Piles, CPAs, LLP (KDP) to perform an investigation into the scope of the possible thefts. Petitioner admitted to stealing over $100,000 from PE. She met with an owner of PE and KDP representatives and identified some transactions on the company credit card made for her personal use. Petitioner also made statements regarding overtime hours and bonus payments that she had given herself, which appeared to the owner and KDP to greatly minimize the amounts at issue. All told, PE and KPD identified over $300,000 in fraudulent transactions attributable to petitioner.

PE gave its findings to the Medford Police Department, which conducted additional investigation and confirmed what PE and KDP had reported. The Jackson County District Attorney's office eventually charged petitioner with one count of theft in the second degree, ORS 164.045, three counts of theft in the first degree, ORS 165.055, one count of identity theft, ORS 165.800, seven counts of aggravated first-degree theft, ORS 164.057, and one count of falsifying business records, ORS 165.080.

Petitioner hired counsel to represent her. Counsel reviewed discovery, including copies of the company credit card statements that were redacted to remove the names and charges from other PE employees. The discovery also included KDP's audit spreadsheet, which indicated personal charges on the company credit card that petitioner had admitted to, other credit card charges that petitioner had made that also appeared to be for personal use, and impermissible bonus and salary payments identified in the payroll system that petitioner had admitted were fraudulent, in addition to police reports providing further proof that the transactions were fraudulent. Among the personal charges that petitioner admitted to making on the company credit card were for home furnishings, women's clothing, makeup, and jewelry. Other charges that petitioner had made that were flagged as fraudulent were for concert tickets, hotels, personal electronics (such as multiple Apple watches), and payoffs of petitioner's personal credit cards. While the case was pending, counsel and petitioner became aware that the district attorney in Siskiyou County, California, was also planning on pursuing charges against petitioner, because she had used the company credit card for numerous cash advances to gamble at the Rain Rock Casino.

Petitioner told counsel that the company had authorized at least some of her personal transactions and that “everyone did it,” referring to personal charges on the company credit card, authorized or not. However, petitioner could not produce any evidence, or investigative leads, to substantiate her claim that the company authorized her transactions. Based on counsel's review of the discovery, he believed that any authorized transactions improperly categorized as fraudulent would be less than one percent of what she was charged with.

Counsel did not believe that “everyone did it” was a defense to the charges, but he believed that, if true, it could help negotiate a better plea offer from the state. Accordingly, counsel obtained permission to review the unredacted credit card statements at the district attorney's office. In that review, counsel found that although many people appeared to charge dining expenses, there was nothing even approaching the extent of the charges that petitioner had made. In counsel's opinion, the petitioner's credit card charges flagged by KDP's audit were illegitimate business expenses and would have surpassed the financial threshold that the state had to meet to prove the aggravated theft charges in the indictment, a determination that petitioner does not challenge in this case. Counsel and petitioner also agreed that the evidence of guilt on the other charges appeared strong. Counsel decided not to retain a forensic accounting expert; based on his training and experience, he did not believe that one was necessary. At the time that he represented petitioner, counsel had been a criminal defense lawyer for twelve years, both at the public defender's office and in private practice. He had defended clients in numerous theft and fraud cases. Counsel also had prior experience working in banking and the financial sector.

Counsel knew that with petitioner's criminal history of financial theft, petitioner would be subject to heightened sentencing penalties after a trial: a total of 168 months for the first-degree aggravated thefts alone. See ORS 137.717 (establishing a presumptive 24-month sentence for a conviction for aggravated theft in the first degree if the person has a prior qualifying conviction). Counsel was eventually able to negotiate an offer for petitioner to plead guilty to identity theft, four counts of aggravated first-degree theft, and falsifying business records, to have a total sentencing recommendation of 42 months’ imprisonment, and to resolve the California case with no additional jail time. Petitioner pled guilty pursuant to the offer, and the court imposed a 42-month sentence.

Thereafter, petitioner sought post-conviction relief. As relevant to this appeal, petitioner claimed that trial counsel provided inadequate and ineffective representation under Article I, section 11, and the Sixth Amendment when he failed to consult with or retain a forensic accountant to review the financial records, before he advised her to plead guilty. Petitioner asserted that if counsel had consulted with or retained that expert, she would not have pled guilty but would have gone to trial.

To assist in proving her claims, petitioner's post-conviction attorney hired Cone, a certified public accountant, to review petitioner's case. Cone's initial report concluded that there were several areas of investigation that he would have expected counsel to pursue, including looking at PE's accounting system and the entirety of KPD's audit investigation. Petitioner had reiterated to Cone that it was “common practice” for PE to cover employees’ personal expenses, and that it was permitted. Based on petitioner's statements, Cone opined that post-conviction counsel needed to review PE's accounting files and unredacted credit card statements to demonstrate that petitioner did not have the required mental state to commit theft and that counsel was inadequate and ineffective when he failed to pursue that defense. In response to Cone's initial report, post-conviction counsel issued the two subpoenas that are central to this appeal.

The first subpoena was to PE for unredacted copies of the credit card statements and accounting files during petitioner's employment. Petitioner issued a second, separate subpoena to KPD for production of their unredacted work product and communications related to the audit investigation into petitioner's conduct.

PE and KPD moved to quash the subpoenas on four grounds: (1) the subpoenas violated Article I, section 42(1) (c), of the Oregon Constitution; (2) the subpoenas failed to comply with ORS 138.625(3); (3) petitioner's plea was knowing and voluntary; and (4) the subpoenas were “unreasonable, oppressive, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.” For their fourth ground, PE and KPD relied on former ORCP 55 A(7)(b) (2022), amended and renumbered as ORCP 55 A(7) (2026), ORCP 55 A(8), ORCP 36 B(1), and I. H. v. Ammi, 370 Or 406, 520 P3d 877 (2022).¹ In response, petitioner argued that the information was necessary to prove her claims against trial counsel and referred to Cone's report regarding the reasons for seeking the information. The post-conviction court quashed the subpoenas in a summary order, without providing a reason for its decision.

Petitioner proceeded to post-conviction trial without the information that she sought from the subpoenas. The post-conviction court ultimately denied relief. The post-conviction court found counsel credible and petitioner not credible, and it determined that counsel “was not deficient in failing to consult with a forensic accountant.” The post-conviction court specifically faulted Cone for relying on petitioner's statements (because petitioner was “not truthful”) and for focusing only on KPD's report and not the credit card statements themselves. The post-conviction court observed that Cone's report did not identify any errors in the materials that Cone had reviewed, which were the same materials that trial counsel had examined prior to advising petitioner to plead guilty (save for the unredacted credit card statements that counsel viewed at the district attorney's office). This appeal followed.

ANALYSIS

Ineffective assistance of counsel: We begin with petitioner's third assignment of error, which challenges the trial court's decision to deny relief based on the existing record. We review the post-conviction court's denial of relief on a claim of inadequate or ineffective assistance of counsel for errors of law. Green, 357 Or at 312. At the outset, we note that the state and federal standards for an inadequate assistance of counsel claim are “functionally equivalent”; both require the petitioner to prove that counsel's performance was deficient and that the petitioner suffered prejudice as a result. Lewis v. Miller, 350 Or App 482, 490-91, 594 P3d 417 (2026).

When a petitioner's claim of inadequate and ineffective assistance of counsel relates to a guilty plea, the performance inquiry is limited to whether counsel's advice to enter the plea was not “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 US 759, 770-71, 90 S Ct 1441, 25 L Ed 2d 763 (1970). An assessment of whether counsel's advice “reflects an absence of professional skill and judgment * * * turns on the facts known at the time that counsel made that decision.” Davis v. Kelly, 303 Or App 253, 262, 461 P3d 1043, rev den, 366 Or 826 (2020) (brackets omitted).

When, as here, counsel made a strategic decision to limit further investigation prior to advising a petitioner to enter a guilty plea, the petitioner must demonstrate that counsel's strategic decision was unreasonable. See Strickland v. Washington, 466 US 668, 690-91, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (counsel's strategic decisions are owed deference if they were made after counsel has conducted “reasonable investigations or [made] a reasonable decision that makes particular investigations unnecessary”); Farmer v. Premo, 363 Or 679, 690, 427 P3d 170 (2018) (“Tactical decisions, to be considered an exercise of professional skill and judgment, must be grounded on a reasonable investigation and should include an evaluation of the likely costs and potential benefits of the contemplated action, as measured in light of the nature and complexity of the case.” (Citations and internal quotation marks omitted.)).

Moreover, in analyzing prejudice in the context of a guilty plea, we look at whether “there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockart, 474 US 52, 59, 106 S Ct 366, 88 L Ed 203 (1985). In situations specifically involving uninvestigated and potentially exculpatory evidence, we consider whether the forgone further investigation “would have led counsel to change his recommendation as to the plea.” Id. Answering that inquiry, in turn, involves determining whether that investigation would have predictably led to a “defense [that] would have likely succeeded at trial.” Id.; see also Saroian v. State of Oregon, 154 Or App 112, 118, 961 P2d 252 (1998) (explaining that, “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence,” determining whether that error prejudicially induced the petitioner's guilty plea “will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea [and] whether the evidence would have changed the outcome of a trial” (emphases omitted)). If the evidence that petitioner alleges counsel was required to investigate would not have changed counsel's advice regarding the plea, or rendered that advice unreasonable, petitioner has not demonstrated that counsel's decision to forgo further investigation before advising petitioner to plead guilty was the result of constitutionally deficient performance.

Here, petitioner alleged that counsel needed to consult with a forensic accountant before advising her to plead guilty. We thus assess whether counsel's decision to limit his investigation in that way was a reasonable strategic one by examining the information that counsel knew at the time that he advised petitioner to accept the plea.

At the time counsel made his decision not to consult a forensic accountant, counsel knew that petitioner had admitted to $100,000 in unauthorized transactions. Counsel also knew that the state would seek to prove that petitioner made numerous fraudulent charges beyond those that she admitted to, for a total loss of about $300,000. Based on his review of the company credit card statements, counsel believed that many disputed charges (such as those for concert tickets, personal shopping, and hotels) were fraudulent on their face, because they had nothing to do with an electrical company's business. Counsel also knew that the state would seek to prove that petitioner stole additional money by paying herself unauthorized paychecks, overtime, and bonus amounts from the company payroll system, and then falsified the records on the payroll system to hide her thefts. Counsel, who had previously worked in the banking sector and had years of prior experience with theft and fraud cases, did not believe that the financial records in petitioner's case were so complex that they required an expert to evaluate them.

Counsel knew that each of the seven charged counts of aggravated theft required only that petitioner stole more than $10,000, and that petitioner's admissions alone satisfied that financial limit. ORS 164.057(1)(b). Counsel was also aware that petitioner faced significant sentencing exposure if convicted of all counts because she was a repeat offender. In short, based on the information that he had, counsel believed petitioner was likely to be convicted on all counts in the indictment and risked a substantial prison term.

In addition, counsel was aware that the Siskiyou County District Attorney in California was planning on pursuing charges against petitioner based on her admitted unauthorized use of the company credit card at the Rain Rock Casino.

In light of the discovery that counsel reviewed (including both redacted and unredacted credit card statements and the police reports) and petitioner's admissions, along with her substantial prison exposure, counsel's decision to limit investigation and advise petitioner to accept the state's favorable plea offer was a reasonable strategic one.² The post-conviction court therefore did not err when it denied relief on petitioner's claim.

Subpoenas and motion to quash: That brings us to petitioner's first and second assignments of error, which involve her challenge to the trial court's ruling that quashed her subpoenas. We review a trial court's decision to quash a subpoena for abuse of discretion. State v. Pyle, 321 Or App 149, 153, 516 P3d 273 (2022); Benchmark Properties v. Hipolito, 161 Or App 598, 603, 984 P2d 927 (1999).

As explained above, PE and KPD moved to quash petitioner's subpoenas on multiple grounds, including constitutional, statutory, and rule-based challenges. We need not decide the constitutional and statutory construction questions presented by PE and KPD. Petitioner's subpoenas were invalid because they sought information that she was not entitled to under ORCP 36 and ORCP 55, in that the evidence was not “relevant to the claim or defense of [a] party” or “reasonably calculated to lead to the discovery of admissible evidence.” ORCP 36 B(1). Thus, although the state defends the post-conviction court's decision on harmlessness grounds, we do not reach that analysis because we conclude that the trial court did not err when it quashed the subpoenas.

To understand our ruling, it is necessary to understand how ORCP 36 and ORCP 55 work together. Under ORCP 36 B(1), a party can seek discovery of nonprivileged evidence that is relevant to, or likely to lead to admissible evidence that is relevant to, a claim or defense raised by the party seeking the discovery. When the evidence that a party seeks is in the form of documents, a party can issue a subpoena under ORCP 55 to the documents’ custodian for production of those documents. Importantly, a subpoena cannot extend discovery beyond that which a party is entitled to under ORCP 36. ORCP 55 A(8). Thus, all information sought under a subpoena is subject to the relevance requirements in ORCP 36.

Here, petitioner's specific claim was that trial counsel was inadequate and ineffective because he failed to consult with or retain a forensic accountant to review the discovery prior to advising her to enter her guilty plea. Accordingly, the information that petitioner sought through her subpoenas would only be discoverable if it was relevant to, or likely to lead to admissible evidence that was relevant to, that argument.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 401. Here, to be relevant, the evidence that petitioner subpoenaed would have to do one of two things. It would either have to make it more probable that trial counsel's advice to plead guilty was the result of deficient performance instead of a reasonable strategic decision. Or it would have to make it more probable that petitioner would not have pleaded guilty and would have gone to trial but for trial counsel's alleged deficient performance. To make either of those facts more probable, the evidence would have to undermine or negate the set of facts that led counsel to advise petitioner to accept the state's 42-month plea offer and petitioner to decide to plead guilty pursuant to that offer. Again, those facts were that petitioner admitted to $100,000 in fraudulent, unauthorized transactions, that the credit card statements and the police investigation confirmed the fraudulent nature of those (and other) transactions, and that her admissions alone exposed her to 168 months’ imprisonment.

Here, the record contains something akin to an offer of proof about the asserted relevance of the evidence sought through the subpoenas, so it was not necessary for the post-conviction court to review the evidence itself before making a ruling on the subpoenas.³ Cone's report and petitioner's pleadings demonstrate that she sought the information from KPD to demonstrate that the firm conducted a flawed audit investigation, both procedurally and substantively, with the result that KPD unreasonably determined the scope of loss attributable to petitioner's actions. Those documents further demonstrate that petitioner sought the information from PE to support her claim that everyone used the company credit card for personal charges and that the disputed payroll transactions were, in fact, authorized.⁴

The difficulty for petitioner is that a flawed audit investigation, other employees’ purchases on the company credit card, and approved payroll transactions would not call into question her admissions to $100,000 in unauthorized, fraudulent transactions, and the related sentencing exposure.⁵ Nor would that evidence undermine the credit card statements that recorded a plethora of charged personal expenses to petitioner's company card, or the police department's independent investigation and confirmation of petitioner's fraudulent actions. As a result, the subpoenaed information would not have negated or undermined the facts that counsel relied on to provide his advice and that petitioner relied on to accept the state's favorable plea offer. Therefore, the subpoenaed evidence was irrelevant to petitioner's claim that counsel's advice to accept the state's offer and plead guilty was inadequate and ineffective, and prejudiced her. Again, it bears repeating that petitioner does not challenge counsel's determination that her admissions themselves subjected her to significantly more prison time than she received through the plea offer, nor does she explain how the subpoenaed evidence would have undermined any of the evidence that she and counsel relied on prior to entry of her guilty plea.

Petitioner relies on Tracy to establish that the post-conviction court erred in quashing the subpoenas. In Tracy, the petitioner was charged with sexual abuse, attempted rape, strangulation, and burglary, all of which he denied. 252 Or App at 166. The encounter between the petitioner and the complainant occurred in a hotel room, and in support of the petitioner's defense, trial counsel subpoenaed records of the hotel rooms’ occupants for production on the day of trial. Id. However, after reviewing the records, trial counsel concluded that they were not helpful to the petitioner's defense. Id.

In his post-conviction case, the petitioner sought subpoenas to “procure documents that, he alleged, his trial counsel should have sought, reviewed, and used to procure additional witnesses.” Id. at 167. Those included employee timecards, surveillance videos, hotel occupancy records, and cellphone records. Id. The petitioner argued that that evidence was necessary to prove that counsel's failure to investigate prejudiced him. Id. at 166-67. The post-conviction court quashed the subpoenas because “[t]his is not a trial of the underlying criminal case” and “[a]ctual innocence is not an issue” in a post-conviction case. Id. at 167 (brackets omitted).

On appeal, we reversed. Id. at 172. We determined that the post-conviction court erred when it denied the subpoenas because it did not analyze the issue under ORCP 36 and ORCP 55. Id. at 167-69. We further concluded that the error was not harmless, because the records were relevant to the petitioner's claim that counsel provided inadequate and ineffective representation when counsel failed to conduct necessary investigation. Id. at 170-72. As to the hotel records, we recognized that the petitioner did not know what was contained in the records and concluded that the petitioner “needed to know what the records contained” so that he could “prove that his trial counsel's investigation of the hotel records was deficient.” Id. at 171-72. We also determined that the hotel records were necessary to establish whether counsel's decision to limit investigation into the other documents was reasonable, in light of what counsel knew at the time. Id. at 172; see also id. (“[A] post-conviction court must evaluate whether, as to each action with respect to which the petitioner alleges that counsel did not exercise professional skill and judgment, the totality of the circumstances—including the other investigative steps counsel took—made that action reasonable.”).

Tracy is distinguishable from petitioner's case in two main ways. First, the nature of the evidence (possible witness statements, surveillance footage, and timecards) in Tracy was such that it was impossible to tell what it contained, how significant it was, and whether it would lead to additional exculpatory evidence unless the petitioner reviewed it. The subpoena was thus necessary for the petitioner to prove his claim. By contrast, the nature of the evidence that petitioner sought in this case is readily ascertainable from the record, so it was not necessary to permit petitioner to obtain the evidence itself. Of note, counsel made detailed notes from his review of the unredacted credit card statements.

Second, the relevance of the evidence in question in Tracy was undisputable. A wholesale failure to investigate potentially exculpatory information such as was present in Tracy is a well-established deficient performance. See, e.g., Stevens v. State of Oregon, 322 Or 101, 902 P2d 1137 (1995); McMullin v. Amsberry, 310 Or App 542, 485 P3d 278 (2021). The question was therefore whether that failure prejudiced the petitioner, and the information sought in the subpoena was essential to answering that question. By contrast, the gravamen of petitioner's claim in this case is that counsel unreasonably limited investigation before advising petitioner to accept a plea offer. But as we have already explained, the subpoenaed evidence would not call into question petitioner's admissions or the abundant financial evidence that was independent from KPD's audit investigation, which were the primary reasons that counsel advised petitioner to accept a plea offer that substantially limited her prison time. Therefore, the subpoenaed evidence was not relevant to evaluate whether, based on the information that counsel knew at the time, counsel's decision to advise petitioner to plead guilty without further investigation was “within the range of competence demanded of attorneys in criminal cases.” McMann, 397 US at 771; see also Davis, 303 Or App at 262.

In sum, counsel advised petitioner to accept the state's plea offer because her admissions alone would lead to significantly more prison time than the offer, both in Oregon and California, and there was a significant risk that a jury would find additional criminal liability. None of the evidence that petitioner sought through her subpoenas would have undermined or called into question her admissions and the related criminal liability, and indeed petitioner does not claim that counsel was wrong in his assessment of those facts. Because none of the subpoenaed evidence would have called into question the information that counsel had at the relevant time, the reasons that he advised petitioner to plead guilty, and her decision to do so pursuant to that advice, the evidence was not relevant to analyzing petitioner's ineffective assistance of counsel claim. Therefore, the post-conviction court did not err in quashing the subpoenas.

Affirmed.

FOOTNOTES

1.   In December 2024, the Council on Court Procedures renumbered and amended former ORCP 55 A(7)(b) (2022), the rule version in effect during the relevant proceedings below, as ORCP 55 A(7). That amendment, which became effective on January 1, 2026, does not materially affect our analysis.

2.   We further note that, on the issue of prejudice, the post-conviction court found that petitioner “did not want to go to trial,” and that she had failed to establish that she would have gone to trial “but for” counsel's decision to forgo hiring a forensic accounting expert. See Snyder v. Amsberry, 306 Or App 439, 448, 474 P3d 417 (2020) (explaining that, when an ineffective assistance claim is predicated on counsel's failure to investigate and the petitioner pleaded guilty, “the results of that investigation must be such that they would have changed the petitioner's decision to plead guilty”).

3.   If the record does not contain this kind of information—for example, through an implicit or explicit offer of proof or an in camera review—it may not be possible for a court to determine whether the evidence is relevant to a post-conviction petitioner's claims. In such a case, a court could err in quashing the subpoenas, without learning more.

4.   Petitioner's arguments regarding the need for the subpoenas and a forensic accountant assumes that the financial records in this case were too complex for an attorney to assess without expert advice. But a review of the documents demonstrates that that is factually incorrect. For example, Cone indicated that more information was needed about how KPD determined that certain credit card charges were attributable to theft. But it does not take an expert to determine, for example, that a thousand-dollar charge to Kay Jewelers was not an approved purchase for an electric company's business, especially considering petitioner's admission that that transaction was made for personal use. It bears noting that this was a straightforward case of theft, not a complex financial fraud case, and it was apparent from the face of the records why PE, KPD, and the district attorney all believed petitioner's transactions amounted to theft.

5.   Importantly, Cone asserted that PE's accounting system information was necessary to review only because petitioner claimed that it would demonstrate that the company approved her company credit card use, extra paychecks, and bonus payments, or that other employees used company funds similarly. But the post-conviction court expressly found that petitioner was not credible as to the information that she provided to Cone.

HELLMAN, J.