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State v. Chapman

Court of Appeals of Oregon

July 31, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ALLISON CHAPMAN, aka Alison Chapman, aka Allison Kate Chapman, Defendant-Appellant.

          Coos County Circuit Court 18V I72 579 Brett A. Pruess, Judge.

         On appellant's petition for reconsideration fled August 4, 2018, of court's order dismissing the appeal fled July 31, 2018.

          Allison Chapman pro se for petition.

          Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, and Mooney, Judges.

         Case Summary: Defendant petitions for reconsideration of an order in which the Appellate Commissioner dismissed her appeal for lack of jurisdiction due to the late fling of her notice of appeal. She argues that ORS 19.260(1) permits the Court of Appeals to treat the date on which she mailed the notice of appeal by first-class mail-without certified or registered service-as the date on which she fled the notice of appeal, thereby rendering her fling timely. The court allowed reconsideration. Held: The legislature amended the statute to permit fling by an expedited delivery service whose carriers calculate that they should achieve delivery within three calendar days. As a class of delivery, ordinary first-class mail does not satisfy that standard. An individual notice of appeal mailed by ordinary first-class mail is not fled when mailed.

         En Banc

         [298 Or.App. 604] DeVORE, J.

         Defendant petitions for reconsideration of an order of the Appellate Commissioner that dismissed her appeal for lack of jurisdiction because her notice of appeal appeared to have been filed late. She argues that a recent amendment to ORS 19.260(1) permits the court to treat the date on which she mailed the notice of appeal by first-class mail without certified or registered service (hereafter "ordinary first-class mail") as the date on which she filed the notice of appeal. If that were so, then her notice of appeal would not have been filed late. We allow reconsideration in order to address that question of statutory construction. We conclude that the legislature amended the statute to permit filing by expedited delivery services whose carriers calculate that they should achieve delivery within three calendar days, but that ordinary first-class mail does not satisfy that standard. As a consequence, we adhere to the commissioner's order dismissing the appeal.

         Defendant seeks to appeal a general judgment convicting her of motor vehicle violations-driving while suspended or revoked, ORS 811.175, and failure to register a vehicle, ORS 803.300. The trial court entered the judgment in its register on June 8, 2018. The thirtieth day thereafter was Sunday, July 8. Defendant tendered her notice of appeal by mailing it from Coos Bay by means of first-class mail with the United States Postal Service. A "postage validation imprint" appears on the envelope showing that defendant submitted the envelope for mailing on July 9, 2018.

         The timely filing of a notice of appeal is a jurisdictional prerequisite for an appeal. ORS 09.270(2)(b).[1] Because the last day of the appeal period fell on a Sunday, the period extended through Monday, July 9. See ORS 19.255(1) (as applied here, notice of appeal must be filed within 30 days of the date of entry of the judgment); ORS 174.120 (excluding [298 Or.App. 605] the day when the court is closed from computation of time). The Appellate Court Administrator received the envelope containing defendant's notice of appeal on July 11, 2018, more than 30 days after the date of entry of the judgment. Given those dates, the notice of appeal was untimely and subject to dismissal unless defendant may rely on ORS 19.260(1) to relate the filing date back to July 9, 2018, the date on which she mailed the notice of appeal.

         Under certain circumstances, the date of mailing may serve as the date of filing a notice of appeal. In relevant part, ORS 19.260(1) provides:

"(a) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be accomplished by mail or delivery. Regardless of the date of actual receipt by the court to which the appeal is taken, the date of filing the notice is the date of mailing or dispatch for delivery, if the notice is:
"(A) Mailed by registered or certified mail and the party filing the notice has proof from the United States Postal Service of the mailing date; or
"(B) Mailed or dispatched via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days, and the party filing the notice has proof from the United States Postal Service or the commercial delivery service of the mailing or dispatch date.
"(b) Proof of the date of mailing or dispatch under this subsection must be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken. Any record of mailing or dispatch from the United States Postal Service or the commercial delivery service showing the date that the party initiated mailing or dispatch is sufficient proof of the date of mailing or dispatch. If the notice is received by the court on or before the date by which the notice is required to be filed, the party filing the notice is not required to file proof of mailing or dispatch."

         This case focuses on ORS 19.260(1)(a)(B), due to defendant's choice of mailing. Defendant did not mail her notice of appeal by registered or certified mail as authorized by ORS 19.260(1)(a)(A). Rather, she mailed her notice of appeal by ordinary first-class mail. She contends that the date of [298 Or.App. 606] mailing by ordinary first-class mail should be the equivalent of filing under ORS 19.260(1)(a)(B).

         Our task is to determine the meaning of the clause that recognizes mail or dispatch "via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days[.]" ORS 19.260(1)(a)(B). Accordingly we employ the familiar methodology of statutory construction, examining the statute's text, context, and relevant legislative history, to determine the legislature's intent. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

         In ORS 19.260(1)(a)(B), the important terms are "calculated," "class of delivery," and "calendar days." As a word of common usage, "calculated," may be given its "plain, natural, and ordinary meaning." PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). "Calculated" may be understood to mean "planned or contrived so as to accomplish a purpose." Webster's Third New Int'l Dictionary 315 (unabridged ed 2002).[2] A "class" may be understood as "a group, division, distinction, or rating based on quality, degree of competence, or condition" as in "a [class] of travel accommodation." Id. 416. Similarly, the term "calendar days" refers to any of the seven days of a week. See ORS 657.010(15) ("'Week' means any period of seven consecutive calendar days * * *.")

         The term "calculated" is used in a passive voice without specific reference to who calculates that a class of delivery should achieve delivery within three days. But, context provides meaning. The phrase, "class of delivery calculated to achieve delivery within three calendar days," necessarily means that it is the "United States Postal Service or a commercial delivery service" that calculates the delivery times, because it is the delivery service that organizes itself to accomplish deliveries within one estimated time frame or another according to various means or priorities of service. The statute does not depend upon whether the individual appellant subjectively calculates mailing to achieve delivery [298 Or.App. 607] within three calendar days. It is the carrier that calculates whether a class of mail should achieve delivery within three calendar days.[3] The determination is an objective determination, not a subjective determination about what the appellant expects for that particular mailing, nor even what might have actually occurred in a particular situation.[4]

         In her petition for reconsideration, defendant argues that, although she did not choose to use registered or certified services with her mailing, her choice to use ordinary first-class mail was a permissible alternative mailing "via the United States Postal Service * * * by a class of delivery calculated to achieve delivery within three calendar days" within the meaning of ORS 19.260(1)(a)(B). Defendant relies on the description that the Postal Service provides about its first-class mail at its public website. United States Postal Service, First-Class Mail, https://www.usps.com/ship/first-class-mail.htm (accessed Jan 8, 2019). Of that we take judicial notice. OEC 201(b)(2), (f). The Postal Service describes first-class mail, albeit with little detail, in terms of delivery within "1-3 business days." (Emphasis added.) Although defendant acknowledges no difference between the terms, three business days is not three calendar days. The term "business days" has long been understood to mean something deliberately different:

"business day. (1826) A day that most institutions are open for business, usu. a day on which banks and major stock exchanges are open, excluding Saturdays, Sundays, and certain major holidays."

Black's Law Dictionary 480 (10th ed 2014).[5] As a consequence, ordinary first-class mail is not a class of delivery that is calculated to achieve delivery in three calendar days. An example reveals the significance of the difference. If an appellant mails a notice of appeal on a Thursday preceding a week in which a federal holiday falls on a Monday, the notice of appeal may not be delivered until Tuesday, five calendar days after the user left the notice with the Postal Service.

         Defendant contends that statutory history and legislative history favor defendant's interpretation of the statute as allowing use of ordinary first-class mail. We disagree. Statutory history is to the contrary, and legislative history is conspicuously silent.

         To review, we note first that, when a notice of appeal was mailed by ordinary first-class mail, the notice was not considered filed until later received by the court. State v. Harding, 347 Or. 368, 371-72, 223 P.3d 1029 (2009); Southwest Forest Industries v. Anders, 299 Or. 205, 213, 701 P.2d 432 (1985). When enacted in 1979, today's ORS 19.260, formerly ORS 19.028, provided a means of filing by particular forms of mail. As applicable here, the statute provided that the filing of a notice of appeal could be accomplished by mail and that "[t]he date of filing such notice *** shall be the date of mailing, provided it is mailed by registered or certified mail and the appellant has proof from the post office of such mailing date." Or Laws 1979, ch 297, § 1 (enactment) (emphasis added); former ORS 19.028 (1979), renumbered as ORS 19.260 (1997) (codification). By omission, the statute meant that ordinary first-class mail, with filing relating back to mailing, was not an option.[6]

         [298 Or.App. 609] In 1987, former ORS 19.028 was amended to add a new subsection (2) to authorize service of notice of appeal on a party, court reporter, or clerk of the court "by mail, subject to the same requirement as filing notice of appeal by mail ***." Or Laws 1987, ch 852, § 6 (emphasis added). Thereafter, the legislature demonstrated that it knew how to explicitly permit ordinary first-class mail for some things, but not others. In 1989, former ORS 19.028(2) (1987) was amended to provide that service of notice of appeal could be accomplished, in addition to registered or certified, by first-class mail, and such service would relate back to the date of mailing. Or Laws 1989, ch 768, § 12. Importantly, however, the 1989 amendment did not change how filing of notice of appeal could be accomplished.[7]

         In 2015, the legislature amended ORS 19.260 to add what are now subparagraphs (1)(a)(A) and (1)(a)(B). Or Laws 2015, ch 80, § 1 (amending ORS 19.260 (2011)). Subparagraph (A) retained the provision allowing mailing of a notice of appeal via the Postal Service, provided the party mailed the notice of appeal by registered or certified mail. Subparagraph (B), for the first time, added mail or dispatch of a notice of appeal by the Postal Service or commercial delivery service, with relation back to the date of mail or dispatch, provided that the party used "a class of delivery calculated to achieve delivery within three calendar days." Significantly, and consistent with prior amendments, the legislature did not amend subsection (1) itself so as to authorize filing as mailing by first-class mail. The legislature refrained from providing for first-class mail as filing although the 1989 legislature had previously amended former ORS 19.028 to permit service of notice of appeal on others by first-class mail. Or Laws 2015, ch 80, § 1.

         In 2015, the new "class of delivery" to be allowed was described in the commentary of legislative supporters. House Bill (HB) 2336 was introduced at the request of the Appellate Practice Section of the Oregon State Bar. Appellate Practice Section member Jordan R. Silk testified in support of the bill. Referring to the now former version of ORS 19.260, he said,

"[U]nder ORS 19.260, parties may not rely on the date of mailing if they file or serve notice of appeal via third-party commercial carriers, even though the Oregon Rules of Appellate Procedure expressly permit the use of third-party commercial carriers to file and serve other appellate documents.
“* * * * *
"Currently, many appellate practitioners utilize third-party commercial carriers to mail and deliver documents in the ordinary course of business for pending appeals. For practitioners who do not handle appeals on a frequent basis, this is a trap for the unwary with very serious consequences.
* * * * *
"HB 2336A will amend ORS 19.260 to allow appellate practitioners to file and serve a notice of appeal * * * by third-party commercial carriers, just as practitioners are allowed to do with other documents while an appeal is pending."

         Testimony, House Committee on Judiciary, HB 2336, Apr 30, 2015 (statement of Jordan R. Silk). There is no indication in Mr. Silk's testimony of any intention to enlarge filing by mail so as to provide that ordinary first-class would achieve relation back to the date of mailing. Instead, the purpose that was expressed was an amendment to recognize commercial carriers that had become common alternatives offering expedited delivery.

         When the legislature amended ORS 19.260(1), the legislature did not restrict the new means of filing to expedited delivery by commercial carriers. As noted above, ORS 19.260(1)(a)(B) recognizes mail or dispatch "via the United States Postal Service or a commercial delivery service by a class of delivery ...


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