Gable v. State, (CC 95C12041

Citation353 Or. 750,305 P.3d 85
Decision Date27 June 2013
Docket NumberSC S059686).,CA A134838,(CC 95C12041
PartiesFrank Edward GABLE, Petitioner on Review, v. STATE of Oregon, Respondent on Review.
CourtSupreme Court of Oregon

353 Or. 750
305 P.3d 85

Frank Edward GABLE, Petitioner on Review,
v.
STATE of Oregon, Respondent on Review.

(CC 95C12041; CA A134838; SC S059686).

Supreme Court of Oregon.

Argued and Submitted Sept. 17, 2012.
Resubmitted Jan. 7, 2013.

Decided June 27, 2013.


[305 P.3d 86]


On review from the Court of Appeals.
*
Harrison Latto, Portland, and Nell Irene Brown, Pro Hac Vice, Assistant Federal Public Defender, Portland, argued the cause and filed the brief for petitioner on review.

Carolyn Alexander, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.


Before BALMER, Chief Justice, and WALTERS, LANDAU, and BALDWIN, Justices.**

LANDAU, J.

[353 Or. 752]This is a post-conviction case in which petitioner contends that he received inadequate assistance of counsel at his criminal trial. Specifically, he contends that counsel did not 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 and that, as a result, his sentence is invalid. It is undisputed that counsel should have informed petitioner of his right to object to the application of the new law to his case. The issue before us is whether the failure to provide that advice prejudiced petitioner, that is, whether receiving the correct advice would have made any difference to his decision not to object. The post-conviction court found, as a matter of fact, that petitioner did not establish that the advice would have made such a difference. Petitioner appealed, and the Court of Appeals affirmed without opinion. Gable v. State of Oregon, 243 Or.App. 389, 256 P.3d 1099 (2011). We affirm.

The following facts are not in dispute. In 1989, petitioner was arrested for the killing of Oregon Department of Corrections director Michael Francke in January of that year. At the time of the offense, Oregon law provided two sentencing options for aggravated

[305 P.3d 87]

murder: death or life with the possibility of parole, known as “ordinary life.” Specifically, under the law in effect at the time of the offense, a jury could make findings requiring a defendant to be put to death; if it did not, the trial court was required to impose a sentence of life imprisonment with the possibility of parole after a minimum of 30 years of imprisonment. ORS 163.105(1)(e) (1987).

Later in 1989, however, the Oregon legislature amended the law to provide a third, middle option of life without the possibility of parole, known as “true life.” ORS ORS 163.105(a). The new law provides that true life is the presumptive sentence if the jury does not return findings requiring the death penalty and allows the imposition of a sentence of ordinary life only when 10 members of the jury agree that there are sufficient mitigating circumstances. ORS 163.150(2)(a). See State v. Wille, 317 Or. 487, 502–04, 858 P.2d 128 (1993) (explaining effect of amendment).

[353 Or. 753]In April 1990, defendant was indicted with multiple charges of murder and aggravated murder based on the Francke killing. The case went to trial, and, in June 1991, the jury returned a verdict of guilty on all counts.

The penalty phase of the criminal trial began on July 2, 1991. At defendant's criminal trial counsel's request, the jury was instructed on the basis of the sentencing law in existence at the time of the trial; that is to say, the trial court instructed the jury that it had three sentencing options: death, true life, or ordinary life. (Criminal trial counsel later explained that the defense team had a concern that the jury might have returned a sentence of death if it had been given only the two choices of death and ordinary life.) The jury determined that petitioner should not be sentenced to death, but also should never be eligible for parole. The trial court then sentenced petitioner to life imprisonment without the possibility of parole. The conviction and sentence were affirmed on direct appeal. State v. Gable, 127 Or.App. 320, 873 P.2d 351,rev. den.,319 Or. 274, 877 P.2d 1202 (1994).

Petitioner filed a petition for post-conviction relief. He contended that he had been denied adequate assistance of counsel at trial because, among other things, counsel failed to meet with him and advise him about the case investigation; counsel failed to assert an alibi defense, even though he had always denied being at the scene of the killing; counsel failed to read certain reports and other discovery furnished by the state; and counsel failed to object, on ex post facto grounds, to the application of the new sentencing law to his case.

At the hearing in 2000, petitioner testified at length on his various contentions. On the matter of the failure to object to the sentencing instruction, he testified that, had counsel told him about the possibility of objecting to the true life instruction, he would have done so. He explained that, “to me, it's always been the same thing: I'm wrongfully indicted, I'm wrongfully convicted, and it's an all-out situation that's either the death penalty or freedom, you know. There was no in between for me.”

[353 Or. 754]The post-conviction court issued 104 pages of findings of facts and conclusions of law. The court noted that, under applicable federal and state case law, petitioner was required to establish both that counsel failed to exercise professional skill and judgment and that petitioner was prejudiced as a result. The court explained that, with respect to the issue of prejudice, petitioner was required to prove that “there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Throughout those findings, the court found petitioner to be less than credible. It pointed out numerous inconsistencies in petitioner's testimony. It also noted that petitioner had exhibited behavior during the investigation of the case that suggested that he thought that “his mouth allowed him to handle anything he encountered” and that, during the post-conviction proceeding, petitioner similarly believed that “his mouth will set him free in these proceedings.”

On the specific issue of the failure of counsel to object to the sentencing instruction, the court concluded that petitioner waived any such objection and dismissed the petition

[305 P.3d 88]

for post-conviction relief. The court explained that, “[i]t seems clear from recent case law that a defendant facing the imposition of the death penalty can waive or relinquish the protection of the State and Federal ex post facto Constitutional protections against a retroactive application of the true life option.” The court explained that “[t]he true life option affords an additional alternative to a jury considering a death penalty case short of imposing the death penalty, particularly when a jury may be of an opinion that the convicted defendant should never be released into society.” The post-conviction court noted that the criminal trial judge had testified that it was “his impression that the choice of the Defense was to go with the life without parole as a defense strategy to give jurors a viable choice other than the death penalty or life with parole.” The post-conviction court found that petitioner had every opportunity to raise an ex post facto challenge to allowing the jury to consider three possible sentencing options, instead of two, but he never asserted that right. Accordingly, the court concluded, petitioner waived that right.

[353 Or. 755]Petitioner appealed to the Court of Appeals. That court concluded that there had been no waiver and that criminal trial counsel should have advised petitioner of his right to object to the application of the new sentencing law to his case. Gable v. State of Oregon, 203 Or.App. 710, 726, 126 P.3d 739 (2006). The court remanded the case for the post-conviction court to make a finding about whether receiving that advice would have made a difference to petitioner in deciding not to object to the application of the law to his case. Id. The court explained:

“If petitioner would, in fact, have waived his ex post facto rights in these circumstances (as have many similarly situated criminal defendants), then petitioner was not prejudiced by his counsel's default. That is, petitioner might have waived those protections in all events because it was to his practical, tactical benefit to do so.”

Id. at 735, 126 P.3d 739 (citations omitted).


On remand, the post-conviction court permitted petitioner to supplement the record with additional testimony. The record on the issue is as follows:

“The Court: I would be interested though, I guess, in the bottom line. And that is if we can get to that, I wonder if [petitioner's] position has changed. And, of course, in reviewing the case law, generally those defendants who have faced the death penalty have been prone to view that three options being presented to the jury [is] better than the two, and I wonder if his position is the same. Because the reason we're here [is] because his testimony at the trial level when we had the trial in 2000 basically ran something like this[:]

“ ‘If I had my choice, I would have said to the court, to the attorneys, that I want either death or life with the possibility of parole, and not this middle option of true life.’ And I am wondering whether his position remains the same today. If it's like as has happened in the past—particularly in one case—where this very issue was the same—went back, and then the defendant changed his mind and said, ‘Well, I really do want true life after all.’ And then that went up on appeal, and they determined well, he really does have the right to—even though he argued something differently at the appellate level and won on that—prevailed—he still [353 Or. 756]has the right to change his mind later and then say, ‘Well I really do want that option.’

“You said, ‘I'm not...

To continue reading

Request your trial
24 cases
  • Mesta v. Franke
    • United States
    • Court of Appeals of Oregon
    • March 26, 2014
    ...Constitution must establish that his lawyer failed to exercise reasonable professional skill and judgment, Gable v. State of Oregon, 353 Or. 750, 758, 305 P.3d 85,cert. den.,––– U.S. ––––, 134 S.Ct. 651, 187 L.Ed.2d 430 (2013), and in seeking relief under the Sixth Amendment to the United S......
  • McDonnell v. Premo
    • United States
    • Court of Appeals of Oregon
    • February 10, 2021
    ...shall be upon the petitioner to establish such facts by a preponderance of the evidence." As the court held in Gable v. State of Oregon , 353 Or. 750, 758, 305 P.3d 85 (2013), that burden of proof applies to facts related to both prongs of the test for inadequacy of counsel. The post-convic......
  • Pereida-Alba v. Coursey, CC CV090464
    • United States
    • Supreme Court of Oregon
    • January 15, 2015
    ...professional skill and judgment and that, because of that failure, the petitioner 356 Or. 662suffered prejudice. Gable v. State of Oregon, 353 Or. 750, 758, 305 P.3d 85, cert. den., ––– U.S. ––––, 134 S.Ct. 651, 187 L.Ed.2d 430 (2013). Similarly, under federal law, a petitioner must establi......
  • Nichols v. Persson
    • United States
    • Court of Appeals of Oregon
    • June 10, 2020
    ...have changed her mind if she had been adequately advised, citing Moen v. Peterson , 312 Or. 503, 824 P.2d 404 (1991), and Gable v. State , 353 Or. 750, 305 P.3d 85, cert. den. , 571 U.S. 1030, 134 S.Ct. 651, 187 L.Ed.2d 430 (2013). Second, the state argues that petitioner cannot show prejud......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT