State v. Lazarides

728 March 3, 2016 No. 12

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ANTHONY JAMES LAZARIDES,

Petitioner on Review.

(CC 12114997C; CA A155380; SC S063282)

On review from the Court of Appeals.*

Submitted on the record on October 26, 2015.

Marc D. Brown, Chief Deputy Defender, Salem, filed the

brief for petitioner on review. With him on the brief was

Ernest G. Lannet, Chief Defender, Office of Public Defense

Services.

Robert M. Wilsey, Assistant Attorney General, Salem,

filed the brief for respondent on review. With him on the

brief were Ellen F. Rosenblum, Attorney General, and Paul

L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau,

Baldwin, Brewer and, Nakamoto, Justices.**

NAKAMOTO, J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

______________

**  Appeal from Malheur County Circuit Court,/ Lung S. Hung, Judge.

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case.

Cite as 358 Or 728 (2016) 729

Case Summary: While defendant’s criminal appeal was pending before the

Court of Appeals, he absconded from post-prison supervision. The state moved

for dismissal of his appeal, citing the 2011 version of ORAP 8.05(3), which, under

certain circumstances, permitted an appellate court to dismiss the appeal of a

criminal defendant who absconded while the defendant’s case was on appeal.

The parties’ arguments on that motion focused on whether defendant had vol-

untary “surrendered” to authorities, as provided in the 2011 version of the rule.

After defendant had been arrested and returned to supervision, the Appellate

Commissioner for the Court of Appeals granted the state’s motion to dismiss.

The Appellate Commissioner observed that both the state and defendant had

cited the inapplicable 2011 version of ORAP 8.05(3), but concluded that the state

had showed that defendant had not voluntarily surrendered. Defendant sought

reconsideration of that ruling under the current version of ORAP 8.05(3), assert-

ing that, when the court decided the motion to dismiss, he, indisputably, was

no longer “on abscond status.” The Court of Appeals denied defendant’s motion

for reconsideration and declined to reinstate his appeal after the state supplied

additional information concerning defendant’s behavior. Held: Under ORAP

8.05(3) (2015), an appellate court determines whether a criminal defendant is on

abscond status as of the date it decides the motion to dismiss and based on the

evidence before it on that date. In this case, the state failed to meet its burden

of proving that defendant was on abscond status on the date that the Court of

Appeals decided the motion to dismiss.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings.

730 State v. Lazarides

NAKAMOTO, J.

While defendant’s criminal appeal was pending

before the Court of Appeals, he absconded from post-prison

supervision, prompting the state to move for dismissal of his

appeal. After defendant had been arrested and returned to

supervision, the Court of Appeals granted the state’s motion

to dismiss. Later, the Court of Appeals denied defendant’s

motion for reconsideration and declined to reinstate his

appeal after the state supplied additional information con-

cerning defendant’s behavior. Under the current version of

ORAP 8.05(3), adopted in 2015, if an appellate court “deter-

mines that the appellant is on * * * abscond status at the

time the court decides the motion, the court may dismiss the

appeal or judicial review.” This case addresses what motion

is at issue when a court determines a defendant’s status.

We conclude that “the motion” referenced in ORAP 8.05(3)

is the motion to dismiss and agree with the parties that the

state failed to meet its burden to prove that defendant was

on “abscond status” at the time that the Court of Appeals

decided that motion. Thus, the court erred in dismissing

defendant’s appeal, and we reverse and remand.

The facts are procedural. In 2013, defendant was

convicted of assaulting a public safety officer, ORS 163.208,

and was sentenced to 12 months of incarceration and 24

months of post-prison supervision. Defendant was released

on post-prison supervision in late 2014.

By the time of his release on post-prison supervision,

defendant had appealed his conviction and had filed his open-

ing brief in the Court of Appeals. On January 16, 2015, the

state moved to dismiss defendant’s appeal, citing the 2011

version of ORAP 8.05(3), which addressed, among other

things, the effect of a criminal defendant absconding while

the defendant’s case is on appeal. That rule provided, in part:

“If a defendant in a criminal case, * * * on appeal of

an adverse decision, escapes or absconds from custody or

supervision, the respondent on appeal may move for dis-

missal of the appeal. If the appellant has not surrendered at

the time the motion is decided by the court, the court may

dismiss the appeal or judicial review.”

ORAP 8.05(3) (2011) (emphasis added).

Cite as 358 Or 728 (2016) 731

In its motion, the state asserted, and defendant did

not dispute, that defendant had absconded from supervision.

Defendant had failed to report as directed by his supervi-

sion officer, and, in December 2014, the Board of Parole and

Post-Prison Supervision (the board) had issued a warrant

for his arrest.

Less than a week after the state filed its motion, on

January 22, 2015, defendant was arrested and taken to the

Yamhill County Jail to serve a 15-day sanction for violating

conditions of his post-prison supervision. Defendant was to

be released from custody on February 5, 2015. Once defen-

dant was arrested, the parties’ arguments in late January

and early February focused on whether defendant had vol-

untarily “surrendered” to authorities, as provided in ORAP

8.05(3) (2011).

On February 25, 2015, the Appellate Commissioner

for the Court of Appeals granted the state’s motion to dismiss

defendant’s appeal. The Appellate Commissioner observed

that both the state and defendant had cited the inapplicable

2011 version of ORAP 8.05(3). Nevertheless, the Appellate

Commissioner rejected defendant’s argument that, by the

time he responded to the motion, (1) he was back in custody

and (2) the state failed to show that he had not voluntarily

surrendered. Rather, the Appellate Commissioner con-

cluded, the state showed that defendant had been arrested.

On that basis, the Appellate Commissioner dismissed defen-

dant’s appeal.

That same day, defendant sought reconsideration of

the Appellate Commissioner’s order under the current ver-

sion of ORAP 8.05(3). The current version of the rule pro-

vides, in relevant part:

“If a defendant in a criminal case, * * * on appeal of

an adverse decision, escapes or absconds from custody or

supervision, the respondent on appeal may move for dis-

missal of the appeal. If the court determines that the appel-

lant is on escape or abscond status at the time the court

decides the motion, the court may dismiss the appeal or

judicial review. If the court has not been advised otherwise,

the court may infer that the appellant remains on escape

or abscond status when the court considers and decides the

motion.”

732 State v. Lazarides

ORAP 8.05(3) (2015) (emphasis added). Defendant asserted

that, when the court decided the motion to dismiss, he was

no longer on abscond status, explaining that there was no

dispute that he had been taken into custody and, although

he had been released from jail, there was “no evidence” that

he was absconding.

The state contradicted defendant’s position and,

with its response, provided evidence that defendant had

again absconded from supervision. The state provided a

copy of a warrant request report from defendant’s supervi-

sion officer dated February 26 indicating that defendant had

violated conditions of his post-prison supervision by failing

to report in person to meet with his probation supervisor on

February 24—the day before the court granted the state’s

motion to dismiss—and by failing to report (but calling and

offering excuses) on two prior occasions in February. The

state also provided a copy of the warrant for defendant’s

arrest issued by the board on February 26.

On March 18, defendant filed a reply and notified the

court that he was back in custody. He provided a copy of an

inmate roster page for defendant at the Yamhill County Jail

as proof. The roster page listed defendant’s arrest date as

March 17, 2015, and showed that he had received a second

and longer, 26-day incarceration sanction for violating con-

ditions of his post-prison supervision, with a release date of

April 6, 2015. Defendant argued that, because he was again

in custody, the court, on reconsideration, should reinstate

his appeal.

On April 30, 2015, the Chief Judge of the Court of

Appeals, pursuant to ORAP 7.55(4), ruled on defendant’s

motion for reconsideration. The court declined to reinstate

defendant’s appeal and issued an order denying reconsider-

ation. The court observed that the parties’ submissions on

reconsideration indicated—and defendant did not dispute—

that, at the time the Appellate Commissioner granted the

state’s motion to dismiss the appeal on February 25, defen-

dant had “absconded from supervision.” Through that obser-

vation, the court alluded to the basis for dismissal in ORAP

8.05(3) (2015) that “the appellant is on * * * abscond status

at the time the court decides the motion.” The court also

Cite as 358 Or 728 (2016) 733

rejected the position that an appellate court should rein-

state an appeal on reconsideration “whenever it happens

that the offender is caught and involuntarily taken into cus-

tody” pursuant to an arrest warrant.

On review, the dispute boils down to how an appel-

late court must give effect to one phrase in the second sen-

tence in ORAP 8.05(3): “If the court determines that the

appellant is on * * * abscond status at the time the court

decides the motion[.]” The state concedes that an appellate

court “lacks discretion to dismiss an appeal pursuant to

ORAP 8.05(3) if, when it decides the motion, an appellant

has been returned to custody.” The state further concedes

that, on February 25, the Appellate Commissioner should

have concluded from the information before him that, under

ORAP 8.05(3), defendant was no longer on abscond status.

However, the state asserts, the updated information before

the Court of Appeals on reconsideration established that,

as of February 25, defendant had again absconded from

supervision by failing to report as required. The state

argues that the court correctly considered that new infor-

mation and, therefore, correctly denied reconsideration

and exercised its authority to dismiss the appeal based on

defendant’s abscond status as of the date that the Court

of Appeals granted the state’s motion and dismissed his

appeal, February 25.

Defendant contends on review that (1) as the state

concedes, the state failed to meet its ultimate burden of prov-

ing on February 25 that he was on abscond status, given that

he had provided the Court of Appeals with evidence that he

had been returned to supervision; (2) no later submission

of evidence concerning defendant’s status on February 25

should be considered; and (3) even if the court could consider

the state’s later-submitted evidence on reconsideration, that

evidence established only that he had failed to report in per-

son to his supervision officer one time, not that he was on

“abscond status” as of February 25, as the Court of Appeals

implicitly concluded. Accordingly, he concludes, the Court of

Appeals lacked authority to dismiss his appeal.

Thus, the parties agree that an appellate court is

charged with assessing the defendant’s abscond status on a

734 State v. Lazarides

particular date—the date that it decides the motion to dis-

miss an appeal. But the rule is silent concerning the pro-

cedure that an appellate court must employ to make that

assessment, and the parties disagree over whether a court

may review additional evidence relevant to the defendant’s

status after the court first rules on the motion to dismiss

the appeal and, if so, whether that additional evidence in

this case established that defendant was on abscond sta-

tus. We took review to decide whether the Court of Appeals

properly “determine[d]” that defendant was on “abscond sta-

tus” under ORAP 8.05(3) on the day that the court decided

“the motion” to dismiss his appeal. In construing the rule,

adopted by the 2014 ORAP Committee and by joint order of

the Chief Justice of the Supreme Court and the Chief Judge

of the Court of Appeals, we apply the same interpretive

method used for administrative rules, in which the goal is to

ascertain the intent of the body promulgating the rule. State

v. Robbins, 345 Or 28, 37-38, 188 P3d 262 (2008).

Because it is important to our resolution of the

procedural issue, we first address the meaning of the term

“abscond status,” beginning with the rule’s text. The term

“abscond status,” which was added to ORAP 8.05(3) in 2015,

is undefined. “When a disputed term in a * * * rule is unde-

fined by that rule, we assume that it partakes of its ordinary

meaning.” State v. Moss, 352 Or 46, 48, 279 P3d 200 (2012).

As various dictionary definitions reflect, “status”

refers to a person’s legal condition. “Status” is defined in

Webster’s Third New Int’l Dictionary 2230 (unabridged ed

2002) this way: “1 a : the condition (as arising out of age,

sex, mental incapacity, crime, alienage, or public station) of

a person that determines the nature of his legal personality,

his legal capacities, and the nature of the legal relations to

the state or to other persons into which he may enter * * *

4 : an abnormal condition of a person * * *.” In Black’s Law

Dictionary 1632 (10th ed 2014), “status” is defined as

“1. A person’s legal condition, whether personal or propri-

etary; the sum total of a person’s legal rights, duties, liabil-

ities, and other legal relations, or any particular group of

them separately considered <the status of a landowner>.

2. A person’s legal condition regarding personal rights but

excluding proprietary relations <the status of a father>

Cite as 358 Or 728 (2016) 735

<the status of a wife>. 3. A person’s capacities and inca-

pacities, as opposed to other elements of personal status

<the status of minors>. 4. A person’s legal condition insofar

as it is imposed by the law without the person’s consent,

as opposed to a condition that the person has acquired by

agreement <the status of a slave>.”

Similarly, The American Heritage Dictionary of the English

Language 1701 (5th ed 2011) defines “status,” among other

things, as “Position relative to that of others; standing” and

“The legal character or condition of a person or thing.”

As for “abscond,” we agree with the parties that

Robbins, in which we addressed the ordinary meaning of

the verb in the 2007 version of ORAP 8.05(3), informs what

it means to be on “abscond status.” As noted, the 2011 ver-

sion of the rule provided that, if a defendant with a pending

criminal appeal “escapes or absconds from custody or super-

vision,” then an appellate court had authority to dismiss the

appeal. In Robbins, the issue was whether the defendant

had “ ‘abscond[ed] from * * * supervision’ ” after missing a

single appointment with a probation officer. 345 Or at 33

(brackets in original). We examined dictionary definitions

of “abscond,” which focused on evasion and hiding, id., and

concluded that “ ‘abscond’ requires a showing of some kind

of conscious intent to evade or avoid legal process.” Id. at

34. That conclusion was buttressed by the court’s case law.

Id. at 34-37. We further stated that an appellate court may

infer the defendant’s intent “from the nature of the defen-

dant’s acts themselves.” Id. at 36.

In keeping with Robbins, defendant does not argue

that the addition of the word “status” in the 2015 version of

ORAP 8.05(3) refers to a legal status conferred by anybody

in particular, such as the board. Nor does the text of the

rule (or the available information about its adoption) indi-

cate that proof an appellant’s status requires a showing of

action taken against the defendant by the board, such as its

issuance of a warrant for the defendant’s arrest. Given the

common meaning of “status” and the meaning of “abscond,”

explicated in Robbins, we conclude that the term “abscond

status” in ORAP 8.05(3) refers to a defendant’s legal condi-

tion when that defendant is both engaging in evasive conduct

736 State v. Lazarides

and exhibiting an intent to evade or avoid legal process,

including, as relevant to this case, post-prison supervision.

Conversely, as the parties agree, a defendant is not

on abscond status when that defendant has returned to cus-

tody or supervision—whether voluntarily or involuntarily.

The history of the 2014 ORAP Committee’s adoption of the

2015 version of the rule confirms that conclusion. As we

explain, that history demonstrates that the committee con-

cluded that the current version of ORAP 8.05(3) should give

effect to a narrow policy of dismissing a criminal appeal

of a defendant who has absconded or escaped because the

state is not in a position to enforce a judgment, rather than

because, through misconduct, the defendant has forfeited or

waived the right to appeal.

The background for the committee’s decision begins

in 2012, when we decided Moss, a case in which the state

had moved to dismiss an appeal in accordance with ORAP

8.05(3) (2011) because the defendant had not “surrendered”

but rather had been arrested. 352 Or at 47. This court con-

cluded that if, at the time the Court of Appeals decided the

motion to dismiss, it had been informed that the defendant

had voluntarily returned and therefore “surrendered,” then

that court had no authority to dismiss the appeal. Id. at

57-58. The majority of this court concluded that, under the

2011 version of ORAP 8.05(3), a defendant may waive a stat-

utory right to appeal and that is “what a criminal defendant

does when he or she absconds from the jurisdiction of the

courts once an appeal has been filed.” Id. at 58.

The dissent disagreed with the majority concerning

the meaning of “surrendered” as used in the 2011 rule. And,

in summing up, the dissent called on the Chief Justice and

the Chief Judge to amend the rule:

“Where the defendant’s whereabouts are fully known to

the court and the state, and the defendant figuratively is

sitting in court awaiting the outcome of his or her appeal,

there seems to me to be little or no justification to autho-

rize dismissal of the appeal and, thus, to nullify the defen-

dant’s statutory right to appeal. If Oregon’s rule now pur-

ports to authorize an appellate court to dismiss an appeal

Cite as 358 Or 728 (2016) 737

even though the defendant has submitted to the state’s

authority and is in custody, then the rule undermines the

statutory right of appeal. To remedy the problem identified

above, the Chief Justice and the Chief Judge should amend

ORAP 8.05(3) to focus the rule on whether the defendant

has returned to custody following an escape, not on whether

the defendant surrendered to the police purely voluntarily, or

simply has been recaptured.”

Id. at 74-75 (Durham, J., dissenting) (emphasis added).

Within several months of the decision in Moss, the

Chief Justice and the Chief Judge issued an order tempo-

rarily adopting amendments to ORAP 8.05(3) (2011). The

2012 temporary order amended ORAP 8.05(3) to take out

references to the appellant’s “surrender.” First, the sentence

concerning an appellant’s failure to surrender as a condition

for dismissal of the appeal was amended: “If the appellant

has not surrendered at the time the motion is decided by the

court, the court may dismiss the appeal or judicial review”

was changed to “If the appellant is not in custody or under

supervision at the time the motion is decided by the court,

the court may dismiss the appeal or judicial review.” Second,

the order struck the last sentence: “If the court has not been

advised otherwise, the court may assume that the appellant

has not surrendered when the court considers and decides

the motion.” We do not have documentation of the intent of

the Chief Justice and Chief Judge in adopting the tempo-

rary amendment to ORAP 8.05(3), but the changes align

with Justice Durham’s call for an amendment that would

allow a criminal appeal to go forward based on whether the

appellant had returned and not on whether the appellant

had returned voluntarily. The order provided that the tem-

porary amendment would expire on December 31, 2014, if

not earlier adopted permanently.

The current version of the rule—which differs from

the temporary rule—was recommended by the 2014 ORAP

Committee after it addressed whether to adopt or modify

the temporary rule. The April 3, 2014, committee meeting

agenda stated the issue as “[w]hether to modify the per-

manent rule permitting the dismissal of appeals or other

proceedings brought by escaped or absconded criminal

738 State v. Lazarides

defendants to eliminate ambiguity about whether the pris-

oner has ‘surrendered.’ ” As part of its agenda, the commit-

tee provided the following explanatory note:

“Prior to the temporary amendment, the rule provided that

the appellate court could dismiss criminal appeals (as well

as other related matters involving criminal convictions and

sentences) if the appellant was a criminal defendant who

had escaped or absconded from custody or supervision and

the defendant had not ‘surrendered’ before the court ruled.

The term ‘surrendered’ could be ambiguous (if a defendant

is arrested at gunpoint, has he surrendered?). It also raises

questions about why the appellate courts are dismissing

the matter (whether it is because the appellate court can-

not enforce a judgment against a fleeing defendant, or

whether the defendant’s escape waives the right to pursue

an appeal). The temporary amendment removed the term

‘surrender’ and now allows dismissal if the escaped appel-

lant ‘is not in custody or under supervision.’ ”

In addition, the agenda contained the text for the

permanent rule proposed by Ernest Lannet, then the Chief

Deputy Defender with the Office of Public Defense Services,

and Anna Joyce, then the Solicitor General. The agenda also

summarized the committee’s February meeting concerning

the rule, which explained a two-part rationale for the pro-

posed text of a permanent rule:

“At the February 28 meeting, the committee generally

supported the ‘narrow’ policy reason for the rule (the inabil-

ity of the appellate court to enforce a judgment against a

fleeing defendant). Concern was expressed, however, about

the temporary rule’s use of the term ‘under supervision.’

Solicitor General Joyce and Chief Deputy Defender Lannet

conferred and suggested the revision shown.”

The committee adopted the proposed text, and,

in November 2014, the Chief Justice and the Chief Judge

issued an order adopting permanent amendments to the

Oregon Rules of Appellate Procedure, effective January 1,

2015, including the amendment establishing the current

form of ORAP 8.05(3). Thus, the history of the rule’s amend-

ment establishes that the current version of the rule was

intended to implement the “narrow” policy rationale for

Cite as 358 Or 728 (2016) 739

the rule—“the inability of the appellate court to enforce a

judgment against a fleeing defendant”—as opposed to the

broader “waiver of appeal” policy behind the 2011 version of

the rule.

That narrow policy rationale for dismissal of a

criminal appeal under ORAP 8.05(3) supports defendant’s

position that, when an appellate court decides the motion,

it is deciding the motion to dismiss, and the court reviews

the evidence before it at that time. Under that rationale,

whether a court should grant a motion to dismiss the appeal

because the defendant no longer is present and subject to

the justice system is time-specific, in a way that is far dif-

ferent than when a court considers whether the defendant

committed an act in the past that will be deemed a waiver

of the right to appeal, no matter whether he or she is then

in custody. When the defendant’s prior waiver of the appeal

right is the issue, the timing of the court’s determination of

the existence of such a waiver does not matter.

And, as a practical matter, that view of the proce-

dure to be followed under the rule encourages both the state

and the defendant to be diligent in their presentation of evi-

dence concerning the defendant’s status when the state files

a motion to dismiss a criminal appeal, and it discourages

the filing of motions to dismiss that are not factually well-

grounded. The statutory right to appeal is a significant one

for a criminal defendant, and an erroneous determination

of such a motion in the first instance can be more readily

corrected on a motion for reconsideration when the record

developed for the motion to dismiss is, effectively, closed.

We also note that, if the state has failed to meet

its burden of rebutting a defendant’s evidence that he has

returned to custody, the state is not barred from filing

another motion to dismiss if circumstances have changed

and the defendant is again on abscond status. The state

did not refile in this case. Thus, we hold that, under ORAP

8.05(3), an appellate court determines whether a criminal

defendant is on abscond status as of the date it decides the

motion and based on the evidence before it on that date.1

1

The state also argues that, if ORAP 8.05(3) did not permit the Court of

Appeals to consider new evidence of defendant’s status on February 25 when it

740 State v. Lazarides

In this case, the state failed to meet its burden

of proof. The state concedes, and appropriately so, that

on February 25, 2015, when the Appellate Commissioner

granted the state’s motion to dismiss defendant’s appeal,

the evidence of defendant’s abscond status was lacking. The

state provided evidence that defendant had earlier absconded

from supervision, but defendant established that he had

been arrested and was sanctioned, and the state provided

no evidence that on February 25, defendant was both engag-

ing in evasive conduct and exhibiting an intent to evade or

avoid supervision. Accordingly, the Court of Appeals erred,

both when it ordered the dismissal of defendant’s appeal and

when it failed to reinstate defendant’s appeal on reconsider-

ation, and the court must reinstate defendant’s appeal on

remand.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.

considered and denied defendant’s motion for reconsideration, we should affirm

nevertheless because the Court of Appeals was exercising its inherent authority

to dismiss the appeal. We decline to address that argument because the state

raises it for the first time on review and the motion to dismiss was litigated—and

decided—based on ORAP 8.05(3).