Gable v. State
305 P.3d 85
Or.2013Background
- In 1989 petitioner (Gable) was charged with aggravated murder; at the time of the offense Oregon law prescribed two sentencing options if jury rejected death: death or ordinary life (life with parole).
- Later in 1989 the legislature added a middle option, “true life” (life without parole), which became presumptive at trial unless 10 jurors found sufficient mitigation.
- At Gable’s 1991 penalty phase defense counsel requested and the court instructed the jury on three options (death, true life, ordinary life); the jury returned findings precluding death and the trial court imposed true life. Direct appeal affirmed.
- Gable sought post-conviction relief claiming ineffective assistance of trial counsel for, among other things, failing to advise him of his right to object on ex post facto grounds to submission of the true-life option to the jury.
- Court of Appeals held counsel breached the duty to advise and remanded for a factual finding whether correct advice would have changed Gable’s decision (i.e., whether he would have objected). On remand the post-conviction court found Gable not credible and that he failed to prove prejudice; the Court of Appeals affirmed without opinion and the Oregon Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Gable) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether post-conviction court applied incorrect burden/standard to prejudice | Post-conviction court used a more burdensome preponderance standard inconsistent with Strickland’s reasonable-probability test | State: statutory preponderance governs factual proof in post-conviction proceedings and is compatible with Strickland | Held: Preponderance applies to factual showings; court cited Strickland and Holland v. Jackson shows no conflict |
| Whether petitioner established he was prejudiced by counsel’s failure to advise about ex post facto objection | Gable: had counsel informed him, he would have objected and sought only death or ordinary life (not true life) | State: petitioner failed to prove he would have acted differently; trial court found him not credible and many tactical reasons exist to accept three options | Held: Court defers to post-conviction court’s credibility findings; petitioner failed to prove prejudice by preponderance |
| Whether it was improper to inquire what petitioner would have done with correct advice | Gable: court should not speculate about a hypothetical decision; unlawful sentence itself proves prejudice | State: must prove that correct advice would have changed petitioner’s decision; Moen and Strickland require showing of resulting prejudice | Held: Inquiry was required; petitioner must show by preponderance that correct advice would have changed outcome; he failed to do so |
| Whether the appropriate inquiry was instead whether counsel’s failure to object (not failure to advise) prejudiced petitioner | Gable/dissent: prejudice is established because Wille mandates resentencing when true life was unlawfully applied | State/majority: Court of Appeals limited remand to whether counsel’s failure to confer prejudiced petitioner; only that question is before the court | Held: Majority reviews only the remanded question (whether correct advice would have changed petitioner’s choice) and affirms the denial of relief |
Key Cases Cited
- State v. Wille, 317 Or 487 (explains effect of post‑offense enlargement of sentencing options and holds true life more burdensome)
- Strickland v. Washington, 466 U.S. 668 (establishes reasonable‑probability prejudice standard for ineffective assistance)
- Holland v. Jackson, 542 U.S. 649 (state post‑conviction use of preponderance standard for factual showings does not conflict with Strickland)
- Moen v. Peterson, 312 Or 503 (post‑conviction claim based on counsel’s failure to advise requires proof that correct advice would have changed defendant’s choice)
- Lichau v. Baldwin, 333 Or 350 (Oregon two‑part test for ineffective assistance: deficient performance and prejudice)
- Trujillo v. Maass, 312 Or 431 (preponderance standard applies to both prongs of ineffective‑assistance claims)