ENTRY FORM

CALENDAR STATUS: Active
SC Number:
S059686
CA Number:
A134838
Case Title:
Frank Edward Gable v. State of Oregon
Date:
09/17/2012
Time:
09:30 AM
Location:
Supreme Court
Attorneys:
Harrison Latto on behalf of Frank Edward Gable
Carolyn Alexander on behalf of the State of Oregon
Comments:
Statement of Issues:
Frank Edward Gable v. State of Oregon (S059686) (A134838) (appeal from Marion County Circuit Court; affirmed without opinion at 243 Or App 389, 256 P3d 1099 (2011)).

Petitioner Frank Edward Gable has been granted review of a Court of Appeals decision that affirmed without opinion a post-conviction court judgment denying petitioner post-conviction relief.

On review, the issues are:

(1) Did the post-conviction court abuse its discretion in denying petitioner's motion for a postponement of trial on remand on the issue of whether petitioner had been prejudiced by his trial counsel's inadequacy, under the following circumstances: the court scheduled the matter for trial 10 days later and denied the parties' joint request for a postponement; petitioner was housed out-of-state and his post-conviction counsel would not be able to meet with him within the 10 days; the post-conviction court relied on a pro se letter written to the court by petitioner asking that the matter proceed quickly; the post-conviction court acknowledged partway through trial that it had not known that petitioner was housed out-of-state at the time it scheduled the hearing; and the factual matter to be determined at trial was "complex and subtle and the stakes involved were of the highest magnitude imaginable"?

(2) Under those circumstances, was petitioner required to show that he was prejudiced by the trial court's denial of his motion for postponement of trial, in order to be entitled to a new trial?

(3) In determining that petitioner had not been prejudiced by his trial counsel's failure to properly advise him regarding his ex post facto rights, did the post-conviction court substitute its own judgment for that of petitioner and employ a more burdensome legal standard than the law requires?

(4) When the law in place at the time of his crimes required a choice between death and an ordinary life sentence, and petitioner's constitutional right to be sentenced under that law was violated, resulting in a sentence of life without the possibility of parole, is the proper remedy a remand to be resentenced to a term of ordinary life?

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Rives Kistler, Virginia L. Linder


Last Revised: 08/27/2012