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State v. Beebe

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RIAN PAUL BEEBE, Defendant-Appellant.

          Argued and submitted July 12, 2019.

          Lane County Circuit Court 211200546 Mustafa T. Kasubhai, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Powers, Judge, and Landau, Senior Judge.

         Case Summary: The state moves to dismiss this criminal appeal, under ORAP 8.05(3), because defendant has absconded from supervision. Defense counsel does not dispute that defendant is on abscond status; rather, defense counsel asserts that dismissing the appeal would violate defendant's statutory right to an appeal and his constitutional right to due process under the Fourteenth Amendment to the United States Constitution. Held: The authority to dismiss the appeal of an absconding defendant under ORAP 8.05(3) derives from the inherent authority of the court and does not violate a defendant's statutory right to appeal. The rule also does not violate federal due process. Because defendant is on abscond status, the appeal is dismissed.

         [300 Or.App.32] ORTEGA, P. J.

         The state moves to dismiss this criminal appeal, under ORAP 8.05(3), because defendant has absconded from supervision. Defense counsel does not dispute that defendant is, in fact, currently on abscond status; rather, defense counsel asserts that we should deny the state's motion because dismissing the appeal would violate defendant's statutory right to an appeal and his constitutional right to due process under the Fourteenth Amendment to the United States Constitution. As explained below, we reject those arguments. Accordingly, we dismiss defendant's appeal.

         Defendant was convicted of driving under the influence of intoxicants and reckless driving and placed on probation. Defendant appealed the judgment of conviction. While this appeal was pending, the state filed a motion to show cause why defendant's probation should not be revoked for failure to comply with two conditions of probation. The trial court signed a show cause order and issued a warrant for defendant's arrest. Defendant was arrested and arraigned and signed a release agreement promising to appear for the probation revocation hearing. Defendant failed to appear for the hearing, and the trial court revoked the release agreement and issued a bench warrant for his arrest. The warrant remains outstanding. Relying on ORAP 8.05(3), the state moved to dismiss this appeal based on defendant's abscond status.

         ORAP 8.05(3) provides:

"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 dismissal of the appeal. If the court determines that the appellant 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."

         A defendant is on "abscond status" when "that defendant is both engaging in evasive conduct and exhibiting an intent to evade or avoid legal process." State v. Lazarides, 358 Or. 728, 735-36, 369 P.3d 1174 (2016). Here, [300 Or.App.33] defendant is on abscond status, because defendant has not complied with conditions of his probation, did not appear as ordered for his probation revocation hearing, and currently has an outstanding bench warrant for his arrest as a result. Defendant's failure to comply with probation and appear as ordered were conscious efforts to avoid legal process. See State v. Hooper, 278 Or.App. 246, 249, 373 P.3d 1272 (2016) (dismissing appeal when the defendant failed to appear for a probation compliance hearing, resulting in a warrant for his arrest, failed to comply with conditions of probation, and did not contend that he had returned to custody).

         Defendant has not contested that he is on abscond status. He argues, however, that we cannot dismiss his appeal, despite his abscond status, because doing so would violate his statutory right to an appeal and constitutional right to due process. We first address defendant's statutory arguments.

         Defendant argues that no statute authorizes the dismissal of his appeal based on his absconding from supervision and, because he does have a statutory right to appeal under ORS 138.020, ORAP 8.05(3) conflicts with that statutory right and is invalid. In addition, defendant argues that, under ORS 138.257(1), we may only "affirm, reverse, vacate or modify" a judgment, which does not include an authorization to dismiss an appeal. Finally, defendant argues that, because other statutes do authorize ...


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