and submitted July 12, 2019.
County Circuit Court 211200546 Mustafa T. Kasubhai, Judge.
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
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.
Ortega, Presiding Judge, and Powers, Judge, and Landau,
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.
Or.App.32] ORTEGA, P. J.
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.
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
"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."
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).
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.
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 ...