Gable v. State

Summary

The Oregon Supreme Court affirmed the denial of post-conviction relief to a defendant who claimed trial counsel inadequately advised him about objecting on ex post facto grounds to application of a later-enacted sentencing law. The court held that the petitioner had to establish prejudice by showing that correct advice would have led him to object, and it upheld the post-conviction court’s finding that his testimony on that point was not credible.

Holdings

1. A post-conviction petitioner must prove the factual contentions supporting inadequate assistance, including prejudice-related facts, by a preponderance of the evidence; that burden does not conflict with the Strickland requirement to show a reasonable probability of a different result.
2. Gable failed to establish prejudice because the post-conviction court found that his testimony that he would have objected after receiving correct advice was not credible, and that finding was supported by the record.
3. The existence of an allegedly unlawful sentence does not eliminate the requirement that the petitioner prove prejudice from counsel's deficient advice by showing that correct advice would have changed the petitioner's decision.

Questions Presented

1. Whether the post-conviction court applied an incorrect or more burdensome standard of proof by requiring Gable to establish prejudice by a preponderance of the evidence.
2. Whether the post-conviction court erred in assessing the reasonableness and credibility of Gable's assertion that he would have objected to the application of the later-enacted sentencing law.
3. Whether prejudice from counsel's failure to advise Gable of the ex post facto objection could be presumed without determining whether correct advice would have changed his decision.

Disposition

affirmed