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State v. Lobue

Court of Appeals of Oregon

October 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ZACHARY MICHAEL LOBUE, Defendant-Appellant.

          Submitted March 26, 2019

          Lane County Circuit Court 17CR33498; Charles M. Zennaché, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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.

          [300 Or.App. 342] JAMES, J.

         Defendant seeks reversal of a judgment convicting him of first-degree failure to appear, ORS 162.205. That statute provides, in part:

"(1) A person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after:
"(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."

         Defendant 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.

         The 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.

         9) Call 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 understand that

"I will be subject to arrest and revocation of my release if I fail to appear as required on my release agreements."

         (Boldface omitted.)

         On May 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."

         Defendant 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.

         ORS 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.

         The 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.[1] 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 felony cases.

         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 appearance required.

         For a 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).

         Here, 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.

         Release 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."

         The 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 ...


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