State v. Mott

830

Argued and submitted November 17, 2022; order of Court of Appeals reversed,

appeal dismissed April 6, 2023

STATE OF OREGON,

Respondent on Review,

v.

CHARLES ANTHONY MOTT, JR.,

aka Charles Mott, aka Charles A. Mott,

aka Charles Anthony Mott,

Petitioner on Review.

(CC 19CR39798) (CA A173631) (SC S069349)

527 P3d 758

Defendant appealed a judgment of conviction. The Court of Appeals issued

its decision, which, among other things, reversed and remanded defendant’s

convictions on two nonunanimous counts. Before an appellate judgment issued,

defendant filed an unopposed motion to dismiss his appeal. In an unpublished

order, the Court of Appeals denied the motion without explanation. Defendant

sought review of that order. Held: (1) Once an appellant exercises the right to

appeal, the court acquires an interest in the proceeding that is inconsistent with

the view that an appellant has the unilateral, absolute right of dismissal at any

time; (2) because initiation of an appeal implicates case-specific, institutional,

and systemic interests, an appellate court may consider a variety of factors in

deciding how to resolve an appellant’s motion to dismiss; (3) the Court of Appeals’

presumption against post-decision dismissal motions that could be overcome only

if an appellant established compelling reasons was not justified by either of the

two grounds advanced by that court (i.e., its authority to enforce its decisions and

institutional and systemic considerations); (4) an explanation of an appellant’s

reasons for seeking dismissal—whether compelling or not—is not a necessary

prerequisite for granting an appellant’s motion; and (5) a remand to the Court of

Appeals to permit it to undertake its discretionary assessment again was unnec-

essary because it would be an abuse of discretion to deny the motion where no

case-specific, institutional, or systemic factors weighed in favor of doing so.

The order of the Court of Appeals is reversed. The appeal is dismissed.

On review from the Court of Appeals.*

Laura A. Frikert, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the brief for petitioner on review. Also on the brief was

Ernest G. Lannet, Chief Defender.

______________

* Appeal from Jackson County Circuit Court, Laura Cromwell, Judge. 315

Or App 702, 500 P3d 92 (2021).

Cite as 370 Or 830 (2023) 831

Lauren P. Robertson, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Flynn, Chief Justice, and Duncan, Garrett, and

DeHoog, Justices, and Balmer and Walters, Senior Judges,

Justices pro tempore.**

GARRETT, J.

The order of the Court of Appeals is reversed. The appeal

is dismissed.

______________

** Nelson, J., resigned February 25, 2023, and did not participate in the

decision of this case. Bushong and James, JJ., did not participate in the consider-

ation or decision of this case.

832 State v. Mott

GARRETT, J.

In this case, we consider the nature and scope of the

Court of Appeals’ authority to deny an appellant’s motion

to dismiss. After that court issued a decision resolving

defendant’s criminal appeal, he filed an unopposed motion

to dismiss, which the court denied. On review, both parties

agree that the Court of Appeals erred in denying defen-

dant’s motion, but they approach the analysis differently.

For the reasons that follow, we conclude that the Court of

Appeals erred in denying defendant’s motion in this case.

Accordingly, we reverse the order of the Court of Appeals

and dismiss defendant’s appeal.

I. BACKGROUND

A. Relevant Case Law

The Court of Appeals recently addressed the nature

and scope of its authority to resolve motions to dismiss

in State v. Moore, 308 Or App 724, 482 P3d 222 (2021)

(Moore III), and State v. Lasheski, 312 Or App 714, 493 P3d

1118 (2021) (Lasheski II). Although the court initially denied

the defendants’ motions to dismiss in those cases, the court

subsequently dismissed both appeals by unpublished order.

Because Moore III and Lasheski II provide important con-

text for understanding the issues in this case, we begin by

describing them and the court’s ultimate resolution of the

motions to dismiss in some detail.

1. State v. Moore

The defendant in Moore appealed twice and obtained

a remand for resentencing each time. State v. Moore, 290 Or

App 306, 414 P3d 915 (2018) (Moore I); State v. Moore, 305

Or App 21, 469 P3d 283 (2020) (Moore II). After the Court of

Appeals issued Moore II, but before the appellate judgment

issued, the defendant filed an unopposed motion to dismiss.

The Court of Appeals initially denied the motion. Relying

on the principle that judicial power is limited to the adju-

dication of existing controversies, the court explained that

its “approach to a motion to dismiss a party’s own appeal is

dependent upon whether the filing of [that] motion * * * has

ended the case or controversy.” Moore III, 308 Or App at 726.

According to the court, if the filing of a motion to dismiss

Cite as 370 Or 830 (2023) 833

ends the controversy, the court has no discretion to deny

it; however, once the court has issued a decision, that deci-

sion “is the resolution of the case or controversy presented

on appeal,” and a party’s motion to dismiss its own appeal

no longer extinguishes the case or controversy as it would

have if it had been filed earlier. Id. at 726-27. The court’s

reasoning was grounded in the principle of enforceability.

Id. The court explained that enforceability distinguishes an

appellate decision from an appellate judgment, which termi-

nates the appellate courts’ jurisdiction over the case.1 Id. To

illustrate, as a general proposition, when an appellate court

grants a post-decision dismissal motion, the court is effec-

tively precluded from issuing an appellate judgment that

requires the parties to comply with its decision. Instead,

the court would issue an appellate judgment dismissing

the appeal, and, as a consequence, the trial court judgment

would stand as though no appeal had been taken. For those

reasons, the court explained, its “approach to motions to dis-

miss a party’s own appeal filed after issuance of an opinion

is discretionary, not mandatory.” Id.

The court then identified four factors that would

guide its exercise of discretion: (1) the reasons for dismissal,

with settlement being encouraged and motions by a prevail-

ing appellant being disfavored absent a compelling expla-

nation; (2) the expenditure of court resources; (3) “whether,

given the issues and reasoning expressed in the opinion,

granting dismissal prior to issuance of the appellate judg-

ment and thereby failing to enforce [the] decision, would

affect public confidence in the judicial system”; and (4) “the

effect, if any, that failing to enforce [the] decision by appel-

late judgment would have on a crime victim’s right to be

1

See Moore III, 308 Or App at 727 (“The trial court’s judgment remains

in effect during the pendency of an appeal. Unless the judgment is stayed, the

party that prevailed in that court may enforce it by all of the ordinary methods.

A decision of this court or the Oregon Supreme Court reversing or modifying

the judgment does not affect the ability to enforce it until the appellate decision

becomes effective. The appellate decision becomes effective when the appellate

judgment issues, and that appellate judgment is effective in itself, without any

action of the lower court.” (Internal quotation marks and citation omitted.)); see

also ORS 19.270(6) (providing that, subject to limited exceptions, “[j]urisdiction

of the appellate court over a cause ends when a copy of the appellate judgment is

mailed by the State Court Administrator to the court from which the appeal was

taken pursuant to ORS 19.450”).

834 State v. Mott

present at a hearing under Article I, section 42(a), of the

Oregon Constitution.” Id. at 728. Applying those factors, the

court denied the defendant’s motion because he had offered

no explanation for why dismissal was appropriate. Id.

Thereafter, the defendant filed a petition for recon-

sideration and renewed his unopposed motion to dismiss.

The defendant explained that, following the remand in

Moore I, the trial court had expressed that it would have

been amenable to conducting a resentencing hearing by

video conference, which would have avoided the need to

transfer the defendant from his Department of Corrections

(DOC) facility back to the county. After Moore II issued,

appellate counsel sought to arrange a resentencing hearing

by video conference so that, when the appellate judgment

issued, the defendant would not be transferred. However,

DOC’s legal counsel took the position that, because Moore II

effectively reversed the underlying judgment, DOC had no

authority to hold the defendant and was required to transfer

him back to the county jail. As a result of that transfer, the

defendant, among other things, would have lost the job that

it took him two years to obtain. Further, his medical care,

which included the need for further procedures to address

neck injuries that he had incurred while incarcerated,

would have been interrupted. In sum, although recogniz-

ing that a post-decision dismissal risked wasting the court’s

resources, the defendant contended that the cost-benefit

analysis had changed over time and that the unanticipated

practical consequences of a resentencing demonstrated that

dismissal was appropriate.

At that point, the Court of Appeals changed course.

In an unpublished order, the court allowed reconsideration

and granted the defendant’s post-decision dismissal motion,

but noted that such motions are disfavored. The court did not

vacate its decision in Moore II, because the defendant had

indicated that he was not requesting that relief. Thereafter,

the appellate judgment issued dismissing the appeal.

2. State v. Lasheski

Around the same time, the Court of Appeals

was addressing another post-decision motion to dismiss

in Lasheski. In that case, the court had (1) rejected the

Cite as 370 Or 830 (2023) 835

defendant’s assignments of error that would have resulted in

the reversal of his convictions and a remand for a new trial;

(2) agreed with the defendant that the trial court had erred

in refusing to merge three counts into a single conviction

and remanded the case for resentencing; and (3) declined,

in light of that remand, to address another assignment

that related to the defendant’s sentence. State v. Lasheski,

309 Or App 140, 481 P3d 966 (2021) (Lasheski I). After the

Court of Appeals issued Lasheski I, but before the appellate

judgment issued, the defendant filed an unopposed motion

to dismiss, explaining that he would receive no meaningful

benefit from merger and resentencing even though it would

reduce his criminal-history score. The defendant explained

that it was likely that the same term of incarceration would

be imposed on remand and that he had no intention of hav-

ing “future contact with the law” when he is ultimately

released from prison in his early 60s. Further, the defendant

explained that he felt “comfortable and safe where he [was]

presently housed” and would likely lose that placement and

his full-time employment when he was transferred back to

the county for resentencing.

In denying the defendant’s motion in Lasheski II,

the Court of Appeals established a presumption against

post-decision dismissal motions and further explained the

institutional and systemic reasons that such dismissals are

disfavored. Specifically, the court described the “dual effect”

of such a dismissal:

“The effect on the appellant is return to a pre-appeal pos-

ture; from the appellant’s perspective (at least, the appel-

lant’s legal perspective), it is just as though no appeal had

been taken. The trial court judgment stands, as though

no notice of appeal had ever been filed. Yet our published

opinion also stands, announcing the court’s holding on the

issues that the appellant raised on appeal (although it has

no effect on the appellant). The opinion does not somehow

become less precedential because we later granted the

appellant’s motion to dismiss.”

Lasheski II, 312 Or App at 718-19 (emphasis in original).

According to the court, that “dual effect” could incentiv-

ize “clever litigants” to use “post-opinion dismissals to

obtain what would, essentially, be advisory opinions” and

836 State v. Mott

“inappropriately lead appellants to take greater risks on

appeal, believing that, if the result was not to their liking,

they could avoid it through a post-opinion dismissal motion.”

Id. at 719-20. The court further explained that post-decision

dismissal motions “can devalue the investments that the

parties’ lawyers and the court system have put into resolv-

ing the questions that the appellant has raised.” Id. at 720.

Although acknowledging that a post-decision dismissal may

result in “cost savings to the parties, the court, and other

involved institutions and individuals,” the court explained

that those savings are “outweighed by the case-specific and

systemic costs” that would result from routinely permitting

post-decision dismissals. Id. at 720 n 3.

However, recognizing that there are some cases in

which prevailing appellants have compelling practical rea-

sons for no longer wanting the requested relief, the court

identified seven factors—in addition to the four factors pre-

viously identified in Moore III—that it would consider in

deciding whether to grant a post-decision dismissal:

“1. Whether any party or any victim of a defendant’s crime

has expressed reasoned opposition to the motion.

“2. Whether post-opinion dismissal could allow the appel-

lant to escape possible adverse legal consequences

of prevailing on an issue or issues that the appellant

chose to raise on appeal.

“3. If so, whether those legal consequences were, or reason-

ably could have been, anticipated when the appellant

filed the opening brief or at any subsequent point before

the court’s opinion issued.

“4. Whether the appellant’s decision to raise a particular

issue on appeal was influenced by the possibility of sub-

sequently filing a post-opinion dismissal motion if the

appellant was dissatisfied with the court’s resolution of

that issue, or simply did not want the relief granted.

“5. The reasonableness and diligence of the parties in pur-

suing settlement.

“6. Whether the appellant has established compelling rea-

sons for wishing to dismiss the appeal, particularly

those associated with any practical consequences of the

relief granted by the appellate court.

Cite as 370 Or 830 (2023) 837

“7. The extent to which the appellant’s expressed practical

reasons for wishing to dismiss the appeal reasonably

could have been anticipated and appreciated when the

appellant filed the opening brief or at any subsequent

point before the court’s opinion issued.”

Id. at 721-22. The court emphasized that it “expect[ed]

appellants seeking post-opinion dismissal to do just what

the sixth [factor] require[d]: to establish compelling reasons

for dismissal.” Id. at 722 (emphasis in original). The court

noted that, “[g]iven the significant systemic implications of

granting post-opinion dismissal motions,” the court expected

more than “unsworn averments” concerning adverse practi-

cal consequences for a prevailing appellant. Id. Instead, the

court explained that it expected a more complete explana-

tion “supported when feasible by citation to legal authority,

creation of an evidentiary record, or perhaps a jointly agreed

statement of facts.” Id. Further, the court indicated that,

whether or not a respondent opposes the motion, it would

benefit from an explanation of the respondent’s position that

takes into account case-specific and systemic considerations.

Id. at 722-23. The court also invited DOC to provide input if

its interests were implicated. Id. at 723.

Nonetheless, the Court of Appeals clearly signaled

how it would resolve unopposed post-decision dismissal

motions filed by appellants:

“[W]e generally will grant an appellant’s unopposed post-

opinion dismissal motion only in a narrow category of

cases: those in which dismissal (1) would not allow the

appellant to avoid possible adverse legal consequences of

the issues that the appellant chose to raise on appeal, and

(2) would allow the appellant to avoid only certain, unde-

sired practical effects of the relief granted on appeal, some-

times related to the appellant’s particular circumstances

in the custody of [DOC].”

Id. at 716 (emphases in original). In other words, the Court

of Appeals signaled that it generally would not grant appel-

lants’ unopposed post-decision dismissal motions.

Applying those principles, the court denied the defen-

dant’s motion because it was “supported only by unsworn

and generalized assertions about the possible effects of a

838 State v. Mott

remand for merger and resentencing” that “[did] not pres-

ent a sufficient justification for overriding the presumption

against post-opinion dismissal.” Id. at 723. Because the

defendant did not have the benefit of the court’s decision in

Lasheski II, the court gave the defendant leave to refile his

motion to address the matters set forth in that decision. Id.

However, the defendant did not renew his motion

to dismiss. Instead, the defendant filed an unopposed

motion to withdraw the assignment of error that the court

had declined to address in Lasheski I. The defendant also

filed an unopposed petition for reconsideration in which he

explained that, with the agreement of the state, he had filed

a motion in the trial court seeking an amended judgment

to conform to the Court of Appeals’ remand instructions in

Lasheski I, which the trial court had granted.2 In his peti-

tion for reconsideration, the defendant asked the Court of

Appeals to take two actions: (1) modify its former decision in

Lasheski I to explain that the assignment of error concern-

ing merger was moot and that the unaddressed assignment

of error had been withdrawn and (2) change the disposition

of the appeal to “affirmed.”

At that point, noting that the case was in a “fun-

damentally different posture” and that dismissal “would

recognize, essentially, the parties’ agreed resolution of the

major point in dispute” through the trial court’s entry of the

amended judgment, the court asked the parties whether

they would object to simply dismissing the appeal. Neither

party opposed dismissal. In an unpublished order, the court

treated the defendant’s petition for reconsideration as a

motion to dismiss, which it then granted. Thereafter, the

appellate judgment issued dismissing the appeal.

2

Our understanding is that the parties and the trial court apparently agreed

that that court had authority pursuant to ORS 137.172(1) to enter an amended

judgment to conform to the remand instructions in Lasheski I (i.e., merge counts

into a single conviction) even though no appellate judgment had issued. See ORS

137.172(1) (“The trial court retains authority after entry of judgment of convic-

tion or a supplemental judgment, including during the pendency of an appeal, to

modify the judgment, including the sentence, to correct any arithmetic or clerical

errors or to delete or modify any erroneous term in the judgment.”). However,

we do not endorse a practice in which trial courts enter amended judgments to

conform to the remand instructions in appellate decisions before the appellate

judgments issue.

Cite as 370 Or 830 (2023) 839

B. The Facts

With that understanding of the Court of Appeals’

approach to resolving post-decision dismissal motions, we

turn to the historic facts of this case, which are undisputed.

Defendant appealed a judgment of conviction, contending

that the trial court had erred (1) in instructing the jury that

it could return a nonunanimous verdict and by receiving

two such verdicts and (2) in admitting evidence of his con-

sciousness of guilt. In a per curiam decision, the Court of

Appeals reversed and remanded defendant’s convictions on

the two nonunanimous counts, but rejected his challenge to

the unanimous verdicts on the remaining counts and his

evidentiary challenge. State v. Mott, 315 Or App 702, 500

P3d 92 (2021).

Two months after the Court of Appeals issued its

decision in Mott, but before an appellate judgment issued,

defendant moved to dismiss his appeal. Noting that “[a]

criminal defendant in a non-capital case has historically

had a choice whether or not to initiate and continue an

appeal of their convictions and sentence,” defendant argued

that he was “entitled to dismiss his appeal after consulting

with his attorney with no further showing about how that

decision impacts the opposing party or the justice system.”

Defendant asserted that the opinion operated only to resolve

the parties’ dispute, because the state had conceded that the

nonunanimous verdicts must be reversed and remanded and

the court’s per curiam opinion summarily rejected defen-

dant’s evidentiary contention by citing to well-established

case law.3 Based on that assertion, defendant reasoned that

the systemic concerns identified in Moore III and Lasheski II

were not implicated. Alternatively, addressing several of the

factors identified in Moore III and Lasheski II, defendant

asked the Court of Appeals to exercise its discretion and

grant his motion.

Defendant’s motion was accompanied by his attor-

ney’s declaration. The attorney explained that defendant’s

3

Defendant also asserted that the per curiam opinion was “not preceden-

tial,” citing the proposed version of ORAP 10.30. However, ORAP 10.30, a tem-

porary rule of appellate procedure concerning the Court of Appeals’ issuance of

nonprecedential decisions, was not in effect when the per curiam opinion was

issued in this case.

840 State v. Mott

reasons for dismissal were privileged but did not involve the

“practical” considerations that had been at issue in other

cases. If the court required the disclosure of defendant’s rea-

sons, the attorney requested leave to file a confidential dec-

laration that was not disclosable to the state in order to pre-

serve the privilege.4 Among other things, the attorney also

described her decision to raise the assignments of error that

she had, which had not been influenced by the possibility of

obtaining an advisory opinion or a post-decision dismissal;

her understanding that defendant would not face adverse

legal consequences on remand such as increased punish-

ment; and the parties’ unsuccessful attempts to settle the

matter.5

The state did not oppose defendant’s motion.

Instead, noting that it did not have all of the information

about defendant’s reasons for seeking dismissal, the state

deferred to the Court of Appeals as to its resolution. The

state also indicated that the district attorney’s office had

been in contact with the victim, but that the victim had not

expressed an opinion about the motion.

In an unpublished order, the Court of Appeals

denied the motion without explanation. Defendant sought

review of that order, which we allowed.

II. ANALYSIS

Defendant contends that the Court of Appeals

erred in denying his motion to dismiss his appeal. The state

agrees that the Court of Appeals erred in this case, although

it approaches the analysis differently than defendant does.

Specifically, the parties disagree about whether the Court

4

See OEC 503(2)(a) (providing that “[a] client has a privilege to refuse to

disclose and to prevent any other person from disclosing confidential commu-

nications made for the purpose of facilitating the rendition of professional legal

services to the client” between “the client * * * and the client’s lawyer”); see also

Frease v. Glazer, 330 Or 364, 370, 4 P3d 56 (2000) (explaining that, “[a]lthough

the attorney-client privilege belongs exclusively to the client, the client’s attorney

may claim the privilege on the client’s behalf” (citations omitted)).

5

After Mott issued, defendant’s attorney had proposed the entry of an

amended judgment dismissing the nonunanimous counts. According to defen-

dant’s attorney, the proposal would have eliminated the possibility of a retrial

on those counts, reduced defendant’s overall sentence by 90 days, and left his

criminal-history score unaffected. After consulting with the district attorney,

the state declined the offer.

Cite as 370 Or 830 (2023) 841

of Appeals has discretion to deny an appellant’s motion to

dismiss. Defendant contends that the court lacks discre-

tion; the state contends otherwise. Assuming an appellate

court has discretion, the parties both contend that the Court

of Appeals’ presumption against post-decision dismissal

motions cannot be justified by the institutional and systemic

concerns on which it is based. Instead, each party points to

a variety of case-specific, institutional, and systemic factors

that an appellate court may consider in exercising its discre-

tion. In all events, the parties agree that, under the circum-

stances of this case, defendant’s unopposed post-decision

dismissal motion should have been granted.

We begin by addressing whether an appellate

court has discretion to deny an appellant’s motion to dis-

miss an appeal. Although this case concerns an unop-

posed post-decision dismissal motion—as did Moore III and

Lasheski II—some aspects of defendant’s arguments more

broadly implicate an appellate court’s authority to deny an

appellant’s motion to dismiss—whether opposed or unop-

posed or whether pre- or post-decision. In particular, we

understand defendant to contend that noncapital criminal

defendants are entitled to dismiss their appeals at any time

before the appellate judgment issues. In support of that con-

tention, defendant makes two arguments: (1) dismissal is

required when a motion is unopposed because of a lack of

adverseness, and (2) dismissal is required because a defen-

dant has the right to waive the right to appeal. We address

each of those arguments in turn.

First, defendant argues that appellate courts have

no authority to deny an appellant’s unopposed motion to

dismiss because the motion “demonstrates disinterest in

continuing the litigation and a lack of ongoing adverseness

between the parties” and “conclusively ends the contro-

versy” between them. We disagree. For example, a motion

to dismiss, even if granted, does not mean that the appel-

late decision will necessarily be vacated, and, if the respon-

dent disagrees with the reasoning of that decision, adver-

sity may remain. Cf. State v. Snyder, 337 Or 410, 417-20,

97 P3d 1181 (2004) (concluding that adversity existed where

the state, which had prevailed in the Court of Appeals, peti-

tioned for review as to the merits of that court’s statutory

842 State v. Mott

interpretation, but the defendant was no longer challeng-

ing his conviction and asserted that he no longer had any

interest in the outcome of the case). Further, adversity may

exist even when a motion is unopposed. Cf. Snyder, 337 Or

at 418 (explaining that “ ‘[m]any justiciable controversies

go by default or without opposition’ ” and that “adversity

exists even in cases in which no respondent appears” (quot-

ing Teledyne Industries v. Paulus, 297 Or 665, 671, 687 P2d

1077 (1984) (brackets in Snyder))); id. at 418-19 (concluding

that “the mere possibility that parties to a proceeding could

take opposing positions satisfies the adversity requirement”

and that that conclusion “demonstrates the low threshold

for determining the existence of adverse legal interests”);

Teledyne Industries, 297 Or at 671 (explaining that the

absence of opposition “does not mean the plaintiff in a civil

case always receives the prayer of the complaint”; instead,

“the case is submitted to the court without benefit of the

defendant’s appearance or opposition, yet the court enters

judgment only for the proper award”). As we will explain, an

appellate court has discretion to deny an appellant’s motion

to dismiss. Thus, the filing of an unopposed motion to dis-

miss does not extinguish adversity.

Second, we understand defendant to argue more

generally that noncapital criminal defendants have a right

to voluntarily dismiss their appeals at any time before issu-

ance of the appellate judgment.6 According to defendant,

that is so because, in a noncapital case, a direct appeal is

a statutory right that is exercised voluntarily and, for that

reason, the right can be waived in the absence of a legisla-

tively imposed limitation. See ORS 138.020 (providing that

“[e]ither the state or the defendant may as a matter of right

appeal from a judgment in a criminal action in the cases

prescribed in ORS 138.010 to 138.310, and not otherwise”);

ORS 138.035 (providing that a defendant may appeal from

certain judgments and orders); see also State v. Hunter, 316

Or 192, 199-200, 850 P2d 366 (1993) (explaining that con-

stitutional and statutory rights can be waived). Defendant

notes that, in the context of civil appeals, the legislature has

6

In capital cases, an appeal to this court is mandatory. See ORS 138.052(1)

(“The judgment of conviction and sentence of death entered under ORS 163.150(1)(f)

is subject to automatic and direct review by the Supreme Court.”).

Cite as 370 Or 830 (2023) 843

limited an appellant’s ability to waive the right to appeal

by conferring discretion on the appellate courts to grant a

motion to dismiss, but no such limitation exists in the con-

text of criminal appeals. See ORS 19.410(1), (3) (providing

that, in the context of a civil appeal, an appellate court

“may dismiss” under certain circumstances); see also ORS

138.015 (failing to include ORS 19.410 in the list of statutes

governing civil appeals that also apply to criminal appeals).

Although we agree that a defendant in a noncapital

case has the right to decide whether to appeal, we disagree

that, having exercised that right, it necessarily follows that

the defendant also has an absolute and unqualified right to

dismiss at any time. The rights of litigants coexist with the

inherent authority of the court, which includes the authority

to manage proceedings in an orderly and efficient manner.

Our decision in State v. Hightower, 361 Or 412, 393 P3d 224

(2017), is instructive. There, the defendant had exercised his

right to be represented by counsel at trial; however, after

trial had commenced, the defendant changed his mind and

sought to exercise his right to represent himself. Id. at 414.

We explained that, although “[n]othing prevents a defendant

who has invoked the right to counsel or the right to self-

representation from later waiving that right[,]” the defen-

dant’s “right to waive is not absolute and unqualified.” Id. at

417. We further explained that, “once a trial has begun, a

number of interests other than the defendant’s [constitu-

tional right to self-representation] come into play,” including

“the trial court’s overriding obligation to ensure the fair-

ness and integrity of the trial and its inherent authority to

conduct proceedings in an orderly and expeditious manner.”

Id. at 417-18. “In light of those additional interests that are

triggered by the commencement of trial, any invocation of

the right to counsel or to self-representation that occurs

after that time is subject to the court’s discretion.” Id. at 418.

As do trial courts, appellate courts have authority

to conduct their proceedings in an orderly and expeditious

manner. See ORS 1.010(3) (providing that every court of jus-

tice has power “[t]o provide for the orderly conduct of pro-

ceedings before it”). This court has recognized that author-

ity in a variety of contexts. See, e.g., Sills v. State of Oregon,

370 Or 240, 245-46, 518 P3d 582 (2022) (explaining that

844 State v. Mott

the “fugitive dismissal rule” “is based on the principle that

appellate courts possess inherent authority to dismiss a

defendant’s appeal if that defendant has absconded from the

court’s jurisdiction” and that the justifications for the rule

offered by most courts “relate to the dignity and efficient

functioning of the court before which the case is pending”

(internal quotation marks omitted)). Thus, we agree with

the Court of Appeals that, once an appellant exercises the

right to appeal, the court acquires an interest in the pro-

ceeding that is inconsistent with the view that an appellant

has the unilateral, absolute right of dismissal at any time.

We also agree with the Court of Appeals that the

initiation of an appeal implicates case-specific, institutional,

and systemic interests. For that reason, an appellate court,

in deciding how to resolve an appellant’s motion to dismiss,

may consider a variety of factors, such as (1) whether dis-

missal would effectuate the parties’ settlement agreement

or would otherwise serve to recognize the parties’ agreed

resolution of the dispute; (2) whether there is reasoned oppo-

sition to the motion from another party or a crime victim

or there are other indications that a party would be preju-

diced by dismissal; (3) whether there are indications that

the appellate process is being abused (e.g., a party initiated

the appeal to obtain an advisory opinion or moved to dis-

miss to avoid adverse legal or other practical consequences

that were or reasonably could have been anticipated earlier);

(4) whether, or the extent to which, appellate resources have

been expended and additional systemic resources will need

to be expended if the motion is denied; and (5) whether there

are other indications that dismissal of the appeal is not in

the interests of justice (e.g., would adversely affect the effi-

cient and orderly administration of justice, the fairness or

integrity of the proceeding, or the public’s confidence in the

judicial system). In Moore III and Lasheski II, the Court of

Appeals effectively identified many of those factors.

However, in those cases the Court of Appeals also

established a presumption against post-decision dismissal

motions that can be overcome only if an appellant estab-

lishes compelling reasons. That court justified the presump-

tion on two grounds: (1) its authority to enforce its decisions,

Moore III, 308 Or App at 725-27, and (2) institutional and

Cite as 370 Or 830 (2023) 845

systemic considerations, Lasheski II¸ 312 Or App at 718-21.

As we will explain, although each of those grounds may be

appropriately considered in a given case, neither justifies a

presumption disfavoring post-decision dismissal motions.

Turning first to the Court of Appeals’ enforcement

justification, we agree that an appellate court has author-

ity to enforce its decisions. See ORS 1.010(4) (providing, in

part, that every court of justice has power “[t]o compel obe-

dience to its judgments, orders, and process”). As the Court

of Appeals explained in Lasheski II, unless vacated, its pub-

lished decision announcing the court’s holding on the issues

raised on appeal remains precedential and governs future

litigants even if the appeal is later dismissed. 312 Or App at

719. Post-decision dismissal of an appeal, which leaves the

decision intact (unless the court agrees to vacate it, which is

governed by separate principles not at issue here7), thus has

no effect on the authority of the court as to litigants other

than the parties themselves. As to the parties, however, the

effect of a post-decision dismissal is to remove the court’s

ability to issue an appellate judgment and thereby enforce

its decision as to those parties. Thus, when an appellant files

a post-decision dismissal motion, the court’s interest in its

own enforcement power is the interest in compelling that

appellant to ultimately abide by the court’s decision. There

may be case-specific reasons to require an appellant to do so;

however, it is more appropriate to make that determination

on a case-by-case basis rather than applying a presumption

against all post-decision dismissal motions.

Similarly, that presumption is not justified by the

institutional and systemic considerations identified by

the Court of Appeals. As noted, in Lasheski II, the Court

of Appeals pointed to the “dual effect” where, if a post-

decision motion to dismiss is granted, then the trial court

judgment stands as though the appellant had never initi-

ated an appeal, but the appellate court’s published decision

also stands, affecting future litigants but not the appellant.

7

The parties in this case—like the parties in Moore III and Lasheski II—did

not request that the Court of Appeals vacate its decision. See Rogue Advocates

v. Board of Comm. of Jackson County, 362 Or 269, 273 n 4, 407 P3d 795 (2017)

(explaining that vacatur is an extraordinary, discretionary remedy to which a

party must show an equitable entitlement).

846 State v. Mott

The court noted the ways that the “dual effect” inappropri-

ately incentivizes clever litigants and devalues the systemic

investments made in resolving the appeal. The “dual effect”

exists whenever an appeal is dismissed post-decision and

that decision is not vacated. However, there are some cir-

cumstances in which post-decision dismissal should not be

disfavored. For example, as the court noted in Moore III,

settlements are “always encouraged.” 308 Or App at 728. A

court will generally grant a post-decision dismissal motion

when the parties have settled their dispute. Thus, to the

extent that the Court of Appeals’ reasoning in Lasheski II

reflects a concern that the “dual effect” incentivizes clever

litigants to abuse the system (e.g., seek advisory opinions,

fail to engage in a proper cost-benefit analysis when decid-

ing which assignments of error to raise and then dismiss if

the results are not to their liking) or devalues the expendi-

ture of systemic resources, it is, again, more appropriate to

address those concerns on a case-by-case basis rather than

by applying a presumption against all post-decision dis-

missal motions.

Apart from the presumption, the Court of Appeals

also explained that, in exercising its discretionary author-

ity, appellants seeking dismissal—at least those seeking

dismissal post-decision—are required “to establish com-

pelling reasons.”8 Lasheski II, 312 Or App 722 (emphasis in

original). Compelling reasons, in the Court of Appeals’ view,

appear to be limited to a narrow set of circumstances—that

8

To “establish” compelling reasons, the Court of Appeals explained that

“unsworn averments” are insufficient and that it expected a more complete

explanation “supported when feasible by citation to legal authority, creation of an

evidentiary record, or perhaps a jointly agreed statement of facts.” Lasheski II,

312 Or App at 722. However, we note that motions to dismiss and the aver-

ments that they contain are typically signed by a party’s attorney and subject to

ORCP 17, which has been adopted as a rule of appellate procedure by this court

and the Court of Appeals. ORAP 1.40(4). Pursuant to ORCP 17, the attorney’s sig-

nature certifies, among other things, that the motion “is not being presented for

any improper purpose,” ORCP 17 C(2); that the “legal positions taken in the * * *

motion * * * are warranted by existing law,” ORCP 17 C (3); that “the allegations

and other factual assertions in the * * * motion * * * are supported by evidence,”

ORCP 17 C(4); and that those certifications are based on the attorney’s “reason-

able knowledge, information and belief, formed after the making of such inquiry

as is reasonable under the circumstances,” ORCP 17 C(1). Attorneys who make

false certifications may be sanctioned. ORCP 17 D; see ORAP 1.40 n 1 (so indicat-

ing); ORAP 13.25 (providing for petitions for sanctions).

Cite as 370 Or 830 (2023) 847

is, circumstances in which dismissal “would not allow the

appellant to avoid possible adverse legal consequences of

the issues that the appellant chose to raise on appeal,” and

“would allow the appellant to avoid only certain, undesired

practical effects of the relief granted on appeal, sometimes

related to the appellant’s particular circumstances in the

custody of [DOC].” Lasheski II, 312 Or App at 716 (emphases

in original).

Although the parties agree that the Court of Appeals

was incorrect to require an appellant to establish compel-

ling reasons for dismissal, they disagree about the role an

appellant’s reasons should play in the court’s discretionary

decision. Defendant argues that, because a defendant’s rea-

sons for seeking dismissal “are not particularly probative”

of the considerations underlying a court’s decision to dis-

miss, they “should not generally be a consideration.” In par-

ticular, defendant notes that, in some instances, requiring

a defendant to establish compelling reasons for dismissal

may “wrongly intrude on the attorney-client privilege” (e.g.,

the defendant’s reasons may involve admissions of guilt

and acceptance of responsibility). The state counters that

a defendant’s reasons for dismissal are relevant consider-

ations that “provide the state and the victim with an oppor-

tunity to provide a meaningful response to the defendant’s

motion” and provide the court with information that may

help alleviate any institutional and systemic concerns that

the court may have (e.g., wasted systemic or institutional

resources or the defendant’s avoidance of legal or practical

consequences that were or could have been reasonably antic-

ipated earlier in the process).

Certainly, an appellant’s reasons for seeking dis-

missal can be helpful to a court in making its discretion-

ary decision, particularly when dismissal is sought after

the appellate process is well underway. For example, once

the Court of Appeals understood the defendant’s unantici-

pated practical reasons for seeking dismissal in Moore, the

court dismissed the appeal by unpublished order. However,

we are not persuaded that an explanation of an appel-

lant’s reasons for seeking dismissal—whether compelling

or not—is a necessary prerequisite for granting the appel-

lant’s motion. We also agree that such a requirement could

848 State v. Mott

create complications related to the attorney-client privilege.

Nonetheless, to assist the court in making its decision, an

appellate court may ask for an explanation and appellants

may choose to provide one when appropriate and permissi-

ble. As the state notes, defendants remain free not to dis-

close that information, “but that choice may impact whether

the court will grant their motion.”

With the foregoing principles in mind, we turn to the

Court of Appeals’ decision in this case. The decision whether

to grant or deny an appellant’s motion to dismiss—whether

opposed or unopposed or pre- or post-decision—is committed

to the sound discretion of the appellate court. Discretionary

decisions are those in which a court chooses among several

legally correct outcomes. See, e.g., State v. Harrell/Wilson,

353 Or 247, 254, 297 P3d 461 (2013) (“[J]udicial discretion is

always bounded by a simple framework: It must be lawfully

exercised to reach a decision that falls within a permissi-

ble range of legally correct outcomes.”). A court can exceed

the bounds of its permissible discretion in a variety of ways.

Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 116-18,

376 P3d 960 (2016). For example, a court “may abuse its dis-

cretion if its decision is based on predicate legal conclusions

that are erroneous.” Id. at 117. A court may also abuse its

discretion if its decision is “clearly against all reason and

evidence.” Id.; see Botofan-Miller and Miller, 365 Or 504,

506, 446 P3d 1280 (2019), cert den, ___ US ___, 141 S Ct 134

(2020) (explaining that appellate courts will uphold a trial

court’s best interests determination “unless that court exer-

cised its discretion in a manner that is clearly against all

reason and evidence” (internal quotation marks omitted)).

Here, the Court of Appeals denied defendant’s motion

to dismiss without explanation. Because defendant was not

seeking to avoid adverse practical effects from the relief

granted on appeal, his motion did not fit within the nar-

row category of cases in which the Court of Appeals had

indicated a willingness to grant a post-decision motion to

dismiss. See Lasheski II, 312 Or App at 716 (“[W]e gener-

ally will grant an appellant’s unopposed post-opinion dis-

missal motion only in a narrow category of cases: those in

which dismissal[, among other things,] * * * would allow the

appellant to avoid only certain, undesired practical effects

Cite as 370 Or 830 (2023) 849

of the relief granted on appeal[.]” (Emphasis in original.)).

Thus, we understand that the court’s denial of defendant’s

motion reflected its application of the presumption against

post-decision dismissal motions established in Moore III

and Lasheski II.9 Having concluded that the presumption

is not justified for the reasons advanced by the Court of

Appeals, we further conclude that that court abused its dis-

cretion in denying defendant’s motion. See State v. Fults, 343

Or 515, 523, 173 P3d 822 (2007) (concluding that the Court

of Appeals abused its discretion in considering plain error

based on the rationale that the court had expressed).

In that circumstance, we would typically remand

to the Court of Appeals to permit it to undertake its dis-

cretionary assessment again. See id. (explaining that, when

a court abuses its discretion, the appropriate disposition

is to reverse and remand if that court, “after weighing all

the relevant factors,” could “justify its choice in some dif-

ferent way”); State v. Vanornum, 354 Or 614, 631, 317 P3d

889 (2013) (explaining that “[t]he nature of discretion is that

it is best exercised by the entity principally charged with

its exercise”). However, we conclude that a remand in this

case is unnecessary because, under the circumstances here,

there is only one legally correct outcome. See State v. Rogers,

330 Or 282, 312, 4 P3d 1261 (2000) (reasoning that, “[i]f

there is only one legally correct outcome, ‘discretion’ is an

inapplicable concept”). As we will explain, because no case-

specific, institutional, or systemic factors weigh in favor of

9

Defendant contends that the Court of Appeals erred in denying his motion

because that court failed to provide a “sufficient explanation.” However, we under-

stand the court’s decision to be based on its default rule that dismissal would only

be granted in the “narrow category of cases” identified in Lasheski II. 312 Or App

at 716; cf. Hightower, 361 Or at 421 (explaining that, although appellate review

is facilitated by an express statement of a trial court’s findings, such findings

are not required provided that the record reveals the reasons for the trial court’s

action and the appellate court is not left to speculate about the rationale for the

trial court’s decision). In all events, we note that meaningful appellate review

generally is facilitated when a court explains its discretionary decision even

when the explanation is minimal and not complex. Cf. Hightower, 361 Or at 413

(reasoning that, “[i]f a trial court exercises [its] discretion to deny a defendant’s

motion for self-representation, it should make a record that reflects how it exer-

cised that discretion”); McCarthy v. Oregon Freeze Dry Inc., 327 Or 84, 957 P2d

1200, adh’d to as clarified on recons, 327 Or 185, 957 P2d 1200 (1998) (explaining

that, to permit meaningful appellate review, the Court of Appeals must describe

the relevant facts and legal criteria supporting its attorney fee awards).

850 State v. Mott

denying defendant’s motion to dismiss, doing so would be an

abuse of discretion. See Espinoza, 359 Or at 117 (reasoning

that a court abuses its discretion if its decision is “clearly

against all reason and evidence”).

Although the parties did not formally settle their

dispute, defendant’s motion was unopposed by the state and

the victim and there are no indications that any party other-

wise will be prejudiced by dismissal. Under that circum-

stance, a dismissal would effectively recognize the parties’

agreed resolution of their dispute (i.e., leave the trial court

judgment in place as if no appeal had occurred). In addition,

defendant’s attorney explained in the dismissal motion and

accompanying declaration that the appeal had not been filed

for an inappropriate purpose and that she was unaware of

any adverse legal or practical consequences that defendant

was seeking to avoid through dismissal. Defendant’s attor-

ney further explained that defendant’s reasons for seeking

dismissal were protected by the attorney-client privilege

and offered to share them in a way that would preserve the

privilege.

The parties expended resources in briefing and

arguing the case, and, under the circumstances, which

included the state’s concession, defendant likely knew well

in advance of the issuance of the court’s decision that his

appellate challenge to the nonunanimous counts would

result in a remand. The Court of Appeals also expended

its limited resources in reviewing the case and issuing a

decision that essentially accepted the state’s concession and

applied established precedent to reject defendant’s other

challenges.

Nonetheless, the denial of defendant’s motion has

resulted—and, if upheld, would continue to result—in the

significant expenditure of additional systemic resources.

To illustrate, in addition to litigating the denial of his dis-

missal motion in this court, we are holding in abeyance a

second petition that defendant filed to preserve his ability

to challenge the merits of the Court of Appeals’ decision in

the event that we were to uphold the denial of his motion

to dismiss (State v. Mott (S069287)). And even if defendant

had not sought review in this court, the case would have

Cite as 370 Or 830 (2023) 851

been remanded to the trial court on issuance of the appel-

late judgment. The parties would have to relitigate the two

nonunanimous counts, which could result in a second trial.

In turn, such litigation would require any victims to again

decide whether or how to exercise their constitutional rights.

See, e.g., Or Const, Art I, § 42 (describing victim’s rights). At

a time when criminal defense resources are severely lim-

ited, the expenditure of systemic resources resulting from

the denial of this motion is significant.

Finally, there is no indication that the appellate

process is being abused. Nor is there any indication that

the interests of justice generally would be prejudiced by

dismissal.10

Thus, we hold that the Court of Appeals erred in

denying defendant’s post-decision dismissal motion when

that motion was unopposed; when dismissal would result in

significant systemic savings to the parties, the trial court,

the victim, and others (e.g., the county, DOC, and poten-

tial jurors and witnesses); and when dismissal would not

prejudice the interests of justice. Accordingly, we reverse

the order of the Court of Appeals and, because there are no

remaining issues to resolve on appeal, dismiss defendant’s

appeal.11

The order of the Court of Appeals is reversed. The

appeal is dismissed.

10

Although we acknowledge that the effect of a dismissal in this case is to

leave two nonunanimous verdicts in place, that is effectively defendant’s choice

and part of his agreed resolution of this dispute. The result would be the same

if a defendant was convicted by nonunanimous verdict and chose not to appeal

or seek post-conviction relief. See Watkins v. Ackley, 370 Or 604, 607, 523 P3d 86

(2022) (“[W]hen a petitioner seeks post-conviction relief, on Sixth Amendment

grounds, from a judgment of conviction which was based on a nonunanimous

verdict and which became final before * * * [Ramos v. Louisiana, 590 US ___, 140

S Ct 1390, 206 L Ed 2d 583 (2020),] issued, the petitioner is entitled to relief—

assuming that none of the procedural defenses in the Post-Conviction Hearings

Act have been raised and sustained.”).

11

Because we are dismissing defendant’s appeal, which leaves the trial court

judgment in place as if no appeal had occurred, we designate the state as the

prevailing party.