Submitted March 26, 2019
County Circuit Court 17CR33498; Charles M. Zennaché,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kyle Krohn, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Carson L. Whitehead, Assistant Attorney General,
fled the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant seeks reversal of a judgment convicting
him of first-degree failure to appear. ORS 162.205. He
assigns error to the trial court's denial of his motion
for judgment of acquittal and argues that the plain text of
his release agreement did not condition his release on his
personal appearance. The state responds that, while the
release agreement did not explicitly use the term
"personally appear," defendant's personal
appearance, as opposed to appearance through counsel, was
implied by the release agreement. Held: In criminal
and civil matters, one can "appear" personally or
through counsel. Under Oregon law, personal appearance, as
opposed to appearance through counsel, is not statuto-rily
required in misdemeanor cases and is only required at certain
critical stages of felony cases. Thus, ORS 162.205 requires
that the criminal sanction for failure to appear be based on
a release agreement that specifies personal appearance. The
trial court erred in denying the motion for judgment of
acquittal because the release agreement in this case did not
unambiguously require defendant's [300 Or.App. 341]
personal appearance and it is undisputed that defendant
appeared at his hearing through counsel.
Or.App. 342] JAMES, J.
seeks reversal of a judgment convicting him of first-degree
failure to appear, ORS 162.205. That statute provides, in
"(1) A person commits the crime of failure to appear in
the first degree if the person knowingly fails to appear as
"(a) Having by court order been released from custody or
a correctional facility under a release agreement or security
release upon the condition that the person will subsequently
appear personally in connection with a charge against the
person of having committed a felony."
argues that the plain text of the release agreement in this
case did not condition his release on his personal
appearance in court. The state responds that, while the
release agreement did not explicitly use the terms
"personally appear," defendant's personal
appearance, as opposed to appearance through counsel, was
implied by the release agreement. We agree with defendant
and, accordingly, reverse.
relevant facts are largely undisputed. On January 28, 2017,
the state charged defendant with possession of a stolen motor
vehicle, a Class C felony. ORS 819.300. On March 24, 2017,
defendant was released from jail under a release agreement.
That release agreement indicated defendant's felony
charge in the caption. In the body of the agreement, it
included the following language:
"1) Appear in court at the Lane County Circuit
Courthouse in Eugene on Monday, May 01, 2017 at 2:30 p.m. and
all other dates. The Lane County Circuit Courthouse address
is 125 E 8th Ave, Eugene, OR 97401, Tel: (541) 682-4020.
"5) Maintain a mailing and/or residential address, as
well as a contact telephone number. I understand that I am
required to immediately give written notice in person of any
changes to Pretrial Services * * *.
"6) I understand that I am required to keep in contact
with the attorney of record in this matter * * *.
[300 Or.App. 343] "7) Obey all laws and notify this
court within 5 days, in writing, if I am arrested or charged
with any new crime.
the Pretrial Services office until I am acquitted, or
sentenced or the case is dismissed. * * * I understand that I
must check in on assigned days even if I have court that day.
"I will be subject to arrest and revocation of my
release if I fail to appear as required on my release
1, 2017, the trial court held a 35-day call hearing.
Defendant's attorney was present, but defendant was not.
The court issued an arrest warrant. Ultimately, the state
charged defendant with felony failure to appear and a trial
was held on that failure to appear charge. After the state
rested, defendant moved for a judgment of acquittal. He
argued that the state had to prove that the release agreement
required him to appear personally and that the agreement in
this case did not require him to appear personally. The state
argued that the release agreement impliedly required
defendant to appear in person. The court denied the motion:
"Okay. I'm going to deny your motion for a judgment
of acquittal, finding that a reasonable trier of fact could
find that the supervised release agreement which is worded,
'I, [defendant], promise on oath that I will appear in
court at the Lane County Circuit Courthouse in Eugene on
Monday, May 1st, 2017, at 2:30 p.m. and all other dates,'
then listing the address, could reasonably be read and
inferred to mean that he will appear in person, although the
word 'subsequently appear personally' does not appear
in this release agreement. That sentence, as it is commonly
read and is commonly understood, could be read to mean that
he will, himself, present himself personally in court."
appealed, and the parties reprise the arguments they made
before the trial court. At the outset, we address the
standard of review. The trial court treated this issue as a
question of fact and, accordingly, applied the [300 Or.App.
344] typical standard for a motion for judgment of acquittal,
i.e., whether, viewing the evidence in the light
most favorable to the state, a rational factfinder could have
inferred from the evidence each of the elements of the
charged offense beyond a reasonable doubt. State v.
Casey, 346 Or. 54, 56, 203 P.3d 202 (2009). As we will
explain, that was error. But first, it is important to put
the relevant statutes at issue into proper context.
l62.2005(1)(a) makes it a crime to knowingly fail to appear
only after "[h]aving by court order been released from
custody or a correctional facility under a release agreement
or security release upon the condition that the person will
subsequently appear personally in connection with a
charge." (Emphasis added.) The specific wording of the
statute-requiring the release agreement to condition
personal appearance-to justify the failure to appear
charge has existed since the statute's original enactment
in 1971. See Or Laws 1971, ch 743, § 196.
statute's requirement of a release agreement that
requires personal appearance recognizes that, in criminal
cases, just as in civil cases, a party's
"appearance" in a legal matter need not always be
personal, but often may be accomplished through appearance
through counsel. Appearance through counsel in criminal
matters has been statutorily provided for in Oregon since
1955. For misdemeanor crimes, the personal
appearance of a defendant is never required, even at critical
stages of the process including arraignment and trial.
See, e.g., ORS 135.030 ("When the accusatory
instrument charges a crime punishable as a misdemeanor, the
defendant may appear in person or by [300 Or.App. 345]
counsel."). For felony crimes, the personal appearance
of a defendant is statutorily required only at certain
critical stages-arraignment, entry of plea, trial, and
sentencing. See, e.g., ORS 135.030; ORS 135.360; ORS
136.040; ORS 137.030. Except for those four specific critical
stages, no statute prohibits appearance through counsel in
1973, Oregon ended the practice of bail and created a new
system for pretrial release. Among the pertinent release
statutes enacted at that time was ORS 135.255, which provides
that "[a] failure to appear as required by the release
agreement shall be punishable as provided in ORS 162.195
[Failure to appear in the second degree] or 162.205 [Failure
to appear in the first degree]." The statute does not
offer a specific definition of "appear." A review
of the legislative history surrounding the change to
Oregon's pretrial release system shows no indication that
the legislature sought to amend the historically understood
concept of appearance or to redefine appearance in the
context of a release agreement. In short, "to
appear" remained a term of art, meaning appearance
personally or through counsel. Only in a small handful of
specifically delineated hearings in felony cases was personal
statute to attach criminal penalties to conduct, "[t]he
terms of a criminal statute must be sufficiently explicit to
inform those who are subject to it of what conduct on their
part will render them liable to its penalties."
State v. Graves, 299 Or. 189, 195, 700 P.2d 244
(1985). In addition to the requirements for notice, a
criminal statute must not be so vague as to allow "a
judge or jury unbridled discretion to decide" what
conduct to punish. State v. Cornell I Pinnell, 304
Or. 27, 29, 741 P.2d 501 (1987). "A law that gives such
unbridled discretion to judges and juries offends * * * the
principle against standardless and unequal application of
criminal laws embodied in Article I, section 20, of the
Oregon Constitution." State v. Plowman, 314 Or.
157, 161, 838 P.2d 558 (1992).
because Oregon's statutory scheme permits appearance
through counsel even in felony cases, to satisfy the
requirements of notice, and to prevent standardless and
unequal application of criminal laws, ORS 162.205 must be
[300 Or.App. 346] interpreted to attach a criminal penalty to
a knowing failure to appear when the release agreement
unambiguously requires personal appearance.
Therefore, the question in this case is whether the release
agreement unambiguously required defendant's personal
appearance at the 35-day call hearing. That is not a question
of fact, as the trial court concluded, but a question of law.
agreements are contracts and we interpret them, for the most
part, like any other contract. "When considering a
written contractual provision, the court's first inquiry
is what the words of the contract say, not what the parties
say about it." Eagle Industries, Inc. v.
Thompson, 321 Or. 398, 405, 900 P.2d 475 (1995).
"[T]o determine whether a contractual provision is
ambiguous, the trial court can properly consider the text of
the provision in the context of the agreement as a whole and
in light of the circumstances underlying the formation of the
contract." Batzer Construction, Inc. v. Boyer,
204 Or.App. 309, 317, 129 P.3d 773, rev den, 341 Or.
366 (2006). The meaning of an unambiguous contractual
provision is a question of law. Volenti v. Hopkins,
324 Or. 324, 331, 926 P.2d 813 (1996) ("As a general
rule, the construction of a contract is a question of law.
Unambiguous contracts must be enforced according to their
terms."); Eagle Industries, Inc., 321 Or at 405
("In the absence of an ambiguity, the court construes
the words of a contract as a matter of law."). The
determination whether a contractual provision is ambiguous
also is a question of law. Volenti, 324 Or at
331-32; Eagle Industries, Inc., 321 Or at 405. We
are further guided by ORS 42.230, which provides:
"In the construction of an instrument, the office of the
judge is simply to ascertain and declare what is, in terms or
in substance, contained therein, not to insert what has been
omitted, or to omit what has been inserted; and where there
are several provisions or particulars, such construction is,
if possible, to be adopted as will give effect to all."
parties agree that the plain terms of the release agreement
do not specify personal appearance. According to the state,
however, personal appearance can be inferred from the context
of the agreement. First, the state points [300 Or.App. 347]
to the use of the term "I" in the agreement,
arguing that it denotes defendant personally. We cannot
agree. As already discussed, Oregon's statutory scheme
contemplates that a criminal defendant can engage an
agent-his attorney- to appear on his behalf. The agreement
contemplates that defendant will bear the consequences of the
acts of his agent, consistent with traditional principles of
agency. See Eads v. Borman,351 Or. 729, 736, 277
P.3d 503 (2012) ("[T]he principal is bound ...