A Recap of Frank’s State Appellate Status

Posted: September 18, 2008 in Appeals

In June of 2005, Portland attorney David Celuch argued to the Oregon State Court of Appeals that Frank Gable’s trial lawyers, Bob Abel and John Storkel, were ineffective on several grounds, including not adequately investigating evidence that Tim Natividad killed Michael Francke. The argument contended that the post-conviction court erred in denying relief, raising six assignments of error.

Of those assignments, the judges appeared to focus most of their attention on Celuch’s argument that Frank didn’t waive his right to object to having the jury consider the no-parole sentence. The law allowing for that sentence was passed after Mike Francke was killed. Courts generally rule that handing down more severe penalties that did not exist when a crime was committed violate constitutional protections against ex post-facto penalties unless defendants waive their rights. Celuch said since the no-parole sentence didn’t exist at the time of the murder, Frank should be resentenced to life with a possibility of parole.

In January of 2006 the court released their opinion and rejected all but one of Frank’s assignments (the opportunity to have a jury consider the no-parole sentence) and remanded the decision of whether or not Frank should be eligible to be resentenced back to the Marion County Circuit Court and Judge Frank Yraguen.

Click here to read a copy of that decision

Eleven months later, on Monday, 11/27/06, Judge Yraguen held court at 9am to address the motion once again. Frank testified by phone.

On 12/5/06, the Judgment on Remand from the Court of Appeals was signed by Judge Yraguen denying Frank relief. Judgment was in favor for the defendant, the State of Oregon.

On February 20, 2007, Frank’s lawyer, Ken Hadley, filed a notice of appeal from the judgment denying his petition for post-conviction relief entered on December 12, 2006.

Realizing that he had not filed the notice of appeal within the proper time limits, Mr. Hadley filed a motion for leave to file a late notice of appeal pursuant to ORS 138.071(4).

By order dated March 20, 2007, the court denied appellant’s motion for leave to file a late notice of appeal pursuant to ORS 138.071(4) on the ground that ORS 138.071(4) does not apply to post conviction relief cases and dismissed the appeal as untimely filed.

Enter Portland attorney Harrison Latto, who petitioned the court for reconsideration on Frank’s behalf on the ground that legislation enacted during the Oregon Legislature’s 2007 session amended ORS 138.650 to allow late filing of notices of appeal in post-conviction relief cases. Appellant argued that even though the legislation did not become effective until January 1, 2008, it applied to appeals that were pending on the effective date.

By order dated April 29, 2008, the Commissioner determined that the legislation was not retroactive and, therefore, did not apply to this case, citing Rhodes vs Eckelman, 302 Or 245,728 P2d 527 (1986) (no evidence of intent that provision apply retroactively).

Petitioner again petitioned on the ground that this case is distinguished from Rhodes because here, unlike in Rhodes, there is evidence that retroactive application was intended.

The petition was granted on September 15, 2008.

According to the court, the amendment to ORS 138.650 did not contain a retroactivity clause, however, unlike the legislation at issue in Rhodes, it was determined there is legislative history relating to the issue of retroactivity respecting the adoption of ORS 138.650.

Testimony of the bill sponsor before both the House Judiciary Committee and the Senate Judiciary Committee showed that the amendment to ORS 138.650 was intended to apply to all appeals then pending before the Court of Appeals.

Frank’s petition for reconsideration was granted, and the court’s order of dismissal dated March 20, 2007 has been vacated.

The appeal is reinstated.

It will most likely take a year before this appeal is heard and a decision rendered. If Frank wins it will probably take an additional year or more to prepare for the new trial where a new jury would be convened to decide only on the penalty phase…death or life with the possibility for parole.

This would not by any means be a trial to once again determine guilt or innocence.

As I’ve said many times before, Frank’s federal appellate process is on hold until this lingering issue in the state court is resolved, and the best that can come from it is he gets a new sentence with the possibility of parole. A parole straight to a federal prison to serve his other 6-8 year sentence which runs consecutive to his murder conviction.

Frank didn’t have to pursue this appeal. His other claims have already been preserved for federal habeas review, so he could have dropped this appeal and gone right to federal court where most people feel he has the best chance of getting his murder conviction overturned.

Presumably, Frank feels that life with the possibility of parole (even to some other sentence) is preferable to life without the possibility of parole.

And so it goes…



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