State v. Beebe

                                       31

Argued and submitted July 12, appeal dismissed October 16, 2019, petition for
              review denied February 20, 2020 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                        RIAN PAUL BEEBE,
                        Defendant-Appellant.
                      Lane County Circuit Court
                         211200546; A166908
                                  

     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.
    Appeal dismissed.



    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, Office 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.
    ORTEGA, P. J.
    Appeal dismissed.
32                                                  State v. Beebe

           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,

, 

 (2016). Here, defendant
Cite as 

 (2019)                                33

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, 

, 

 (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 dismissal of appeals
for other reasons, that context makes clear that we are not
authorized to dismiss appeals based on abscond status.
         We reject those arguments. ORAP 8.05(3) derives
from, and is a codification of, “an equitable doctrine that
dates back to the late-nineteenth century,” under which
“appellate courts possess inherent authority to dismiss a
defendant’s appeal if that defendant has absconded from the
court’s jurisdiction.” State v. Moss, 

, 

 (2012). The current version of our rule is based on the
long-standing rationale that judgments are unenforceable
“against a fleeing defendant.” 

; see also Lazarides,

 (the 2015 version of ORAP 8.05(3) is based
on the “narrow policy of dismissing a criminal appeal of a
defendant who has absconded or escaped because the state
34                                                           State v. Beebe

is not in a position to enforce a judgment”). Because the rule
derives from our inherent authority, it is not required to be
expressly authorized by statute. Although the legislature may
provide for, and limit, a statutory right of appeal, the appellate courts retain the inherent authority to determine how
to adjudicate and dispose of those appeals. See, e.g., Circuit
Court v. AFSCME, 

, 

 (1983)
(“[T]he legislature may enact laws prescribing the exercise
of judicial powers … so long as it does not unduly burden or
substantially interfere with the judiciary.” (Internal quotation marks omitted.)). Defendant has not raised a statutory
argument that defeats that inherent authority.1 Moreover,
as pointed out by the state, the Supreme Court has the statutory authority, under ORS 2.120, to “make and enforce all
rules necessary for the prompt and orderly dispatch of the
business of the court, and the remanding of causes to the
court below,” of which ORAP 8.05(3) is one.
         We turn to defendant’s due process argument. Defendant concedes that due process does not prohibit the dismissal of an appeal of an absconding defendant. Rather,
defendant argues that, under federal due process law, the
court cannot “decide[ ] the appeal in a way that [i]s arbitrary
with respect to the issues involved.” (Quoting Evitts v. Lucey,

, 

, 

 (1985)
(alterations by defendant).). Defendant argues that ORAP
8.05(3) impermissibly allows for the arbitrary deprivation of
his statutory right to appeal because it provides no guidance
as to the court’s exercise of discretion under that rule.
        We also reject defendant’s due process argument.
The case relied upon by defendant, Lucey, and the quote
taken out of context from that case, does not support his
argument. In Lucey, the Court addressed whether the due
process right to appellate counsel in a first criminal appeal
as of right included the right to effective assistance of

    1
      Defendant also argues that the state “has moved to dismiss only under
ORAP 8.05(3) and has not invoked this court’s ‘inherent’ authority to dismiss the
appeal” of a fleeing defendant and requests additional opportunity to respond
should we invoke that authority. In so stating, defendant misunderstands the
nature of ORAP 8.05(3), which is based on our inherent authority to dismiss the
appeal of an absconding defendant. The state was not required to separately
invoke that inherent authority in its motion to dismiss.
Cite as 

 (2019)                               35

appellate counsel. 

. In concluding that it did
include that right, the Court reiterated that, “ ‘Due Process’
emphasizes fairness between the State and the individual
dealing with the State, regardless of how other individuals
in the same situation may be treated.” 

 (internal
quotation marks omitted). Thus, when a state establishes
an appeal as of right, the state offends due process when
it “refuse[s] to offer each defendant a fair opportunity to
obtain an adjudication on the merits of his appeal.” 

         In contrast to the principles discussed in Lucey,
ORAP 8.05(3) does not deprive defendant of a fair opportunity to obtain an adjudication on the merits of the appeal
because, as pointed out by the state, a defendant is in control of whether he absconds or not and whether to remain
on abscond status after the state files a motion to dismiss
under ORAP 8.05(3). The absence of factors outlined within
the rule itself does not make any exercise of discretion under
ORAP 8.05(3) arbitrary or a due process violation.
        Appeal dismissed.