Gable v. State

WALTERS, J.,

dissenting.

As the majority’s opinion makes evident, to frame an issue is to decide it. Having framed the issue as whether petitioner was prejudiced by his lawyer’s failure to advise him of his right to object, the majority focuses on what petitioner would have done had he received the requisite advice. However, had the majority framed the issue as whether petitioner was prejudiced by his lawyer’s failure to object to the application of the later-enacted, more-onerous sentencing law, the majority would have been compelled to focus on the consequences of the lawyer’s failure to protect petitioner’s rights.1 Correctly framed, the majority could have resolved *765the issue without speculation; we know with certainty that counsel’s failure to object prejudiced petitioner.

We know that because of this court’s decision in State v. Wille, 317 Or 487, 858 P2d 128 (1993). Like petitioner, Wille committed aggravated murder in 1989, when the law provided two sentencing options for aggravated murder: death, or, if not death, “ordinary life” — life with the possibility of parole. At the conclusion of Wille’s trial, the jury returned findings that precluded the imposition of the death penalty. Thus, had the trial court correctly applied the law that was in effect in 1989, the only lawful sentence that it could have imposed was ordinary life. See Wille, 317 Or at 504 (“If the jury did not agree on the death penalty, the trial court was required to impose a sentence of ordinary life.”). The trial court did not do so. Instead, it erroneously applied the law that was in effect at the time of trial and sentenced Wille to “true life”; that is, life without the possibility of parole. Wille appealed, and the Court of Appeals reversed. State v. Wille, 115 Or App 47, 61, 839 P2d 712 (1992).

This court affirmed the Court of Appeals’ decision and required that Wille be resentenced to life with the possibility of parole. Wille, 317 Or at 505. The court reasoned that the application of the later-enacted law violated the constitutional prohibition on ex post facto laws because, at the time of Wille’s crime, when a jury did not return findings that supported the death penalty, the presumptive sentence for aggravated murder was ordinary life. True life, the court held, “clearly is a more burdensome punishment than ordinary life,” and “[t]he fact that a jury, by a vote of 10, affirmatively could have found mitigating circumstances sufficient to warrant reducing the true life sentence to ordinary life does not alter the calculation.” Id. Consequently, the court remanded Wille’s case to the trial court for resentencing *766under the less burdensome law, and Wille was sentenced to ordinary life.

In this case, the jury also returned findings that precluded the imposition of the death penalty, and the trial court also applied the law that was in effect at the time of trial. Petitioner, like Wille, appealed. Petitioner’s case came before the Court of Appeals after this court had decided Wille, and, following the reasoning in that case, the Court of Appeals could have reversed petitioner’s sentence and required that the trial court sentence petitioner, like Wille, to ordinary life. Instead, the Court of Appeals declined to address petitioner’s ex post facto claim, because his lawyer had failed to raise that claim before the trial court. State v. Gable, 127 Or App 320, 332, 873 P2d 351 (1994), rev den, 319 Or 274 (1994) (“The claim of error is unpreserved and we decline to address it.”). Thus, we need not speculate to conclude that petitioner was prejudiced by his lawyer’s failure to object. Petitioner’s true life sentence was affirmed because his lawyer failed to preserve his ex post facto argument.

Rather than reaching that conclusion, the majority considers the different question of whether petitioner would have waived his right to object to the application of the later-enacted law had his lawyer informed him that he could do so. In reasoning as it does, the majority discusses the fact that the trial court rejected petitioner’s testimony that he would not have waived his constitutional right and the trial court’s finding that that position did not “make sense.” 353 Or at 761. With respect, it is the question that the court asked and not the answer that petitioner gave that does not make sense.

Petitioner’s answer that he would not have waived his constitutional right is consistent with both the nature of that right and this court’s decision in Wille. A constitutional right is a defendant’s shield against oppressive state action, and courts are reluctant to find that a defendant has waived a fundamental constitutional right. State v. Meyrick, 313 Or 125, 131-33, 831 P2d 666 (1992). In Wille, this court decided that the law that was in effect in 1989 when Wille and petitioner committed their crimes was less burdensome than the later-enacted law that was in effect at the time of *767their trials. It makes logical sense that petitioner would not waive his constitutional right against the application of the more-burdensome law.

But, more importantly, the majority misses the mark when it focuses solely on whether petitioner’s testimony about what he would have done was credible. We know for a fact that petitioner did not waive his constitutional right. As a result, his lawyer had an obligation to assert and protect that right. To ask whether petitioner would have made the same decision had his lawyer discussed the matter with him — a circumstance that did not occur — instead of whether petitioner was prejudiced by his lawyer’s failure to object — the circumstance that did in fact occur — does not make sense to me. For the majority, the trial court’s finding that petitioner was not credible “ends the matter.” 353 Or at 764. For me, it does not. Accordingly, I respectfully dissent.

The majority contends that this issne is not before the court. 353 Or at 763-64.1 do not agree. The Court of Appeals decision was not limited to counsel’s failure to advise petitioner. As the Court of Appeals understood, the two issues are interrelated, and, ultimately, as the Court of Appeals held, it was counsel’s failure to object that was constitutionally inadequate:

“Petitioner contends that, because he did not waive his ex post facto rights, his counsel provided constitutionally deficient assistance in failing to advise him of those rights and, ultimately, in failing to raise the ex post facto objection *765to submission of the ‘true life’ option. We conclude that counsel did breach the standard of constitutionally adequate representation in that regard.”

203 Or App at 734 (emphases added). Petitioner includes, in his brief to this court, the argument that, because he did not waive his ex post facto rights, counsel was required to raise the ex post facto objection and that petitioner was prejudiced by that failure. The state does not contend that petitioner’s argument is barred; the state responds. Although we may not be required to discuss petitioner’s argument, I do not understand the majority’s unwillingness to do so.