340
Submitted March 26, reversed October 30, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
ZACHARY MICHAEL LOBUE,
Defendant-Appellant.
Lane County Circuit Court
17CR33498; A166198
453 P3d 929
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 statutorily 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 personal appearance and it
is undisputed that defendant appeared at his hearing through counsel.
Reversed.
Charles M. Zennaché, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
JAMES, J.
Reversed.
Cite as 300 Or App 340 (2019) 341
Lagesen, P. J., concurring.
DeVore, J., dissenting.
342 State v. Lobue
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 ….
Cite as 300 Or App 340 (2019) 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
344 State v. Lobue
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 P3d
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 162.205(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
1
In the 1950s, several statutes were enacted that require a defendant’s
personal appearance at certain critical stages. Although many of those statutes have since been renumbered or amended, the legislature has not altered
the requirement that a defendant personally appear at those critical stages and
has not required a defendant to personally appear at other stages. See former
ORS 135.110 (1955), renumbered as ORS 135.030 (1973) (requiring defendant to
personally appear at felony arraignments); former ORS 135.360 (1955), renumbered as ORS 135.360 (1973) (requiring a defendant to personally appear for the
entry of a guilty plea); ORS 136.040 amended by Or Laws 1973, ch 836, § 225
(requiring defendant to personally appear for felony trials); see also ORS 137.030
(1953) amended by Or Laws 1993, ch 581, § 1; Or Laws 1997, ch 827, § 1; Or Laws
2005, ch 566, § 9 (requiring defendant to personally appear at judgment for felony
convictions).
Cite as 300 Or App 340 (2019) 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 P2d 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/Pinnell,
304
Or 27, 29,
741 P2d 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 P2d
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
346 State v. Lobue
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 P2d 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 P3d 773, rev den,
341 Or 366 (2006). The meaning of an unambiguous contractual provision is a question
of law. Valenti v. Hopkins,
324 Or 324, 331,
926 P2d 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. Valenti,
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
Cite as 300 Or App 340 (2019) 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 P3d 503 (2012) (“[T]he principal is bound by or otherwise responsible for the actual or
apparent agent’s acts … if the acts are within the scope of
what the agent is actually or apparently authorized to do.”).
Second, the state points to the provision that provides, “I understand that[:] I will be subject to arrest and
revocation of my release if I fail to appear as required on my
release agreement.” We do not read that provision to make it
unambiguously clear that defendant’s personal appearance
is required. Rather, we read that provision as a consequence
of a breach of contract—a recognition by defendant that he
will bear the consequences of a failure to appear by himself
or through his agent. Should either defendant, or his attorney, fail to appear, then defendant will be in breach of the
contract and the remedy will be rescission (“revocation of
my release”). The arrest contemplated is not an arrest for
a violation of ORS 162.205, but an arrest on the underlying
charge for which defendant was originally released.
In conclusion, because the release agreement in
this case did not unambiguously require defendant’s personal appearance at the 35-day call hearing—a hearing of
a type where no statute requires the personal appearance
of a criminal defendant—and because it is undisputed that
defendant appeared through counsel at that hearing, the
trial court erred in denying defendant’s motion for judgment
of acquittal. Accordingly, defendant’s conviction for violation
of ORS 162.205 is reversed.
Reversed.
LAGESEN, P. J., concurring.
I join the majority opinion in full but write separately to amplify why and to respond to some of the points
made in the dissenting opinion.
348 State v. Lobue
“ ‘The gravamen of the offense [of failure to appear]
is the violation of a release or security agreement.’ ” State v.
Arney, 233 Or App 148, 153-54,
225 P3d 125 (2010) (quoting State v. Eastman,
112 Or App 256, 258,
828 P2d 484
(1992)). More particularly, as relevant to this case, the gravamen of the offense is the violation of a release agreement
containing a specific condition: “the condition that the person will subsequently appear personally in connection with
a charge against the person of having committed a felony.”
ORS 162.205(1)(a) (emphasis added).
The question in this case is whether defendant’s
release agreement contains that specific condition of personal appearance. This is a question because the agreement
does not, by its terms, state explicitly that defendant must
appear “personally” in court, and because the agreement
does not, by its terms, prohibit defendant from appearing
through counsel. This makes the agreement ambiguous as
to whether or not the appearance obligation imposed was
one of personal appearance. In answering that question, the
majority opinion effectively concludes that, to avoid potential constitutional problems, we should view defendant’s
release agreement through the lens of a contractual “rule of
lenity” (for lack of a better description) and strictly construe
it against the state, much as we used to do with criminal
statutes before the legislature abolished the rule of lenity.1
Any other approach raises constitutional concerns,
and it is appropriate for us to avoid them.
As the majority opinion ably explains, Oregon law
allows for appearances through counsel in felony cases, at
1
The rule of lenity provides “that criminal statutes are strictly construed,
and not construed against the accused beyond their literal and obvious meaning.”
Horner v. State of Oregon, 1 Or 267, 268 (1859). Although the legislature has displaced the rule of lenity as a tool for construing statutes, State v. Partain,
349 Or
10, 21,
239 P3d 232 (2010), I have found nothing indicating that the legislature
intended to preclude the use of a similar rule of construction when construing an
agreement, the violation of which the legislature has made a crime. Additionally,
strictly construing an agreement against the state, when the state has made
the violation of the agreement a crime, is consistent with the generally recognized principle that, in the criminal context, agreements with the government
should be strictly construed against the government, given its superior bargaining power and potential due process concerns. See, e.g., State v. Rivers, 283 Conn
713, 723-30,
931 A2d 185, 192-95 (2007) (stating principle with respect to plea
and cooperation agreements, and citing other relevant cases).
Cite as
300 Or App 340 (2019) 349
least in some instances. In view of that statutory landscape,
the failure of a release agreement to unambiguously specify
that any appearance must be in person gives rise to a serious risk that the person released under the agreement will
not have the notice needed to avoid committing a crime.
Additionally, the failure to embrace a rule requiring
strict construction of the provisions of an ambiguous release
agreement would give rise to a risk of differential treatment of similarly situated Oregonians charged with failure
to appear. Consider two defendants released under agreements worded identically to the one at issue here. Absent
a rule of strict construction, the resolution of whether an
ambiguous agreement requires a defendant’s personal
appearance will fall to the jury, or to the court sitting as
factfinder, as it did in this case and as it does in civil cases.
Milne v. Milne Construction Co., 207 Or App 382, 389,
142
P3d 475, rev den,
342 Or 253 (2006) (explaining that, when
a contract is ambiguous, its meaning becomes a question of
fact for the factfinder). That makes it possible, or even probable, that one defendant will be convicted and one will not,
not because of any difference in their circumstances or the
obligations imposed by the text of their respective release
agreements, but because one factfinder resolved the ambiguity one way, and the other resolved it the opposite way.
Think about how this differs from how we resolve
ambiguities in criminal statutes. When a criminal statute
is ambiguous, it is the responsibility of the court to resolve
that ambiguity by interpreting the statute as a matter of
law. See, e.g., State v. Lee, 268 Or App 587, 590,
342 P3d
1095 (2015). It is not the function of the jury, or the court
sitting as factfinder, to resolve the ambiguity. This ensures,
ultimately, that an ambiguous criminal statute is given one
interpretation that applies with equal force to all those prosecuted under it. True, different trial courts may land in different places when interpreting an ambiguous statute, but,
ultimately, our system of appellate review provides for one,
uniform construction of an ambiguous statute.
If we were to take a different approach—allowing
the factfinder to resolve ambiguities—in cases where the
criminal conduct is defined not by the ambiguous words
350 State v. Lobue
of the legislature but, instead, by the ambiguous words of
an agreement between the defendant and state—it would
effectively allow for a case-by-case, factfinder-by-factfinder
determination of what the criminal law is. This, as the
majority opinion recognizes, would be in tension with the
state constitutional guarantee of equality, and also raises
questions of notice. It would also raise concerns of impermissible delegation: Under what constitutional authority, if
any, can the legislature or a court give the factfinder a role
in interpreting and defining a legal standard, the violation
of which is a crime?
Adopting a rule of strict construction promotes that
uniformity and avoids these other constitutional concerns
by ensuring that it is the court, not the factfinder, that is
deciding what the law requires. In sum, absent a clearer signal from the legislature that it intended to chart a different
course, I agree that the correct course is to decide this case
in a way that minimizes any constitutional concerns. That
is what the majority opinion does.
In reaching a contrary conclusion, the dissenting
opinion first concludes that the release agreement unambiguously required defendant to appear personally. 300 Or
App at 351-54 (DeVore, J., dissenting). In that regard, it is
worth observing that even the trial court did not appear to
conclude that the agreement was unambiguous. Instead,
in denying defendant’s motion for judgment of acquittal,
the court reasoned that the agreement “could be read” to
require defendant’s personal appearance. But the court did
not conclude that it was so clear that it had to be read that
way. Beyond that, because Oregon law allows for appearances through counsel (at least for some parts of criminal
proceedings), it is difficult to see how a promise that “I will
… [a]ppear in court” unambiguously constitutes a promise
to appear in person. It could just as well be a promise to
appear through counsel.
The dissenting opinion also argues that “[t]he
majority relies on irrelevant statutes,” contending that ORS
135.030, ORS 135.360, ORS 136.040, and ORS 137.030 are
not pertinent context for assessing the legislature’s intentions with respect to a release agreement that does not
Cite as 300 Or App 340 (2019) 351
unambiguously require personal appearance. 300 Or App
at 359 (DeVore, J., dissenting). But those provisions provide
relevant context for determining what it means for a release
agreement to require personal appearance, because they
demonstrate that not all appearances need be personal.
This allows for the possibility that some release agreements
might require personal appearance, giving rise to the potential for criminal liability for failure to appear, whereas other
release agreements might not require personal appearance,
such that a breach would not give rise to criminal liability.2
Finally, the dissenting opinion points to the fact
that Lane County’s Supplementary Local Rules required
defendant to appear personally. The dissenting opinion
reasons that, “[b]ecause defendant is presumed to know
the law, he may be understood to know that his promise to
appear meant that he must appear personally as local rule
required.” 300 Or App at 355-56 (DeVore, J., dissenting).
But, again, the gravamen of the offense of failure to appear
is the violation of the release agreement itself. The question
is not what defendant may or may not “be understood to
know,” but what obligations the agreement imposed on him
and, in particular, whether the agreement imposed upon
defendant an obligation of personal appearance, as distinct
from a general obligation of appearance that, under Oregon
law, could be satisfied by appearance through counsel. One
way or another, the agreement itself is ambiguous as to how
defendant must accomplish the required appearances.
DeVORE, J., dissenting.
The majority holds that defendant’s release agreement did not unambiguously require his personal appearance
2
I note additionally that, in interpreting the misdemeanor failure to appear
statute, ORS 162.195, earlier this year, the Supreme Court looked to the provisions of ORS chapter 135, which governs the pretrial release of defendants. State
v. McColly, 364 Or 464, 481-85,
435 P3d 715 (2019). It would seem consistent with
that approach to examine the statutes addressing whether and when a defendant is required to appear personally, and may not appear through counsel, to
address what the legislature meant when it criminalized the failure to appear
in violation of a release agreement requiring personal appearance and, in particular, in assessing whether we should construe ORS 162.205 to criminalize
the violation of a release agreement that does not unambiguously condition a
defendant’s release on an agreement to appear personally in court, rather than
through counsel.
352 State v. Lobue
at the date listed first in the agreement, such that he should
have been acquitted of breaching the agreement and violating ORS 162.205. The majority deems it possible that the
agreement required only the attendance of his attorney at
that hearing. For a number of reasons, I read the release
agreement to require defendant’s personal appearance, and
I am unpersuaded by the majority’s rationale.
1. The terms of the agreement itself plainly require
defendant’s personal appearance. The majority omits the
important introductory clause that begins the agreement.
When read in context, together with the promises defendant
made to secure his release from custody, it becomes obvious
that defendant is personally making promises that can only
be performed personally, not through counsel. In relevant
part, defendant promised:
“I, ZACHARY MICHAEL LOBUE, promise on oath that I
will:
“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.
“…
“3) Obey all other orders and requirements of the court,
which includes cooperating with all court staff, specifically the Pretrial Services Office, and in a courteous
and respectful manner.
“4) Not leave the state without the court’s permission.
“…
“6) I understand that I am required to keep in contact with
the attorney of record in this matter, which includes
any changes in my mailing or residential address or
telephone number.
“7) Obey all laws and notify this court within 5 days, in
writing, if I am arrested or charged with any new crime.
“8) Not use or associate with person [sic] using or dealing
in illegal drugs. I understand that I may be required
to submit to a Urinalysis and pay the $10.00 fee at the
time of collection. …
Cite as 300 Or App 340 (2019) 353
“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.”
(Boldface and uppercase in original; emphases added.) These
promises leave no room for this court to find ambiguity.
The promises begin with the personal term “I,” saying that “I, ZACHARY MICHAEL LOBUE, promise …
that I will” comply with the listed promises. The term “I”
is unambiguous; it expressly refers to “Zachary Michael
Lobue.” The term “I” is a term of common usage in the
English language, and it is understood to mean “the one
who is speaking or writing.” It is a “nominative pronoun
of the first person singular by one speaking or writing to
refer to himself as the doer of an action.” Webster’s Third
New Int’l Dictionary 1119 (unabridged ed 2002). Defendant
makes his promises in the first person as the “doer” of the
listed “actions.” In the opening clause, defendant defines the
term “I” when he declares that “I, Zachary Michael Lobue,
promise … that I will: 1) [a]ppear in court” at the time set.
(Uppercase and boldface omitted.) He does not promise, “I,
Zachary Michael Lobue, promise … that a court-appointed
counsel will appear in court on my behalf.” The “I” who will
do the required things is “Zachary Michael Lobue.” In turn,
the terms “I” and “appear” must be read together. When read
together, they mean that “Zachary Michael Lobue” is promising that “Zachary Michael Lobue” (i.e., “I”) will “appear” as
required, not someone else.
Defendant’s first promise—to “appear in court” at
the courthouse—is personal. That is why the agreement
provides him the date, time, and address of the courthouse,
complete with a telephone number. His attorney would not
need the address.
The other promises provide context to show that his
first promise (to appear) is likewise personal. When defendant promises to obey all court orders and be courteous to
staff, it is defendant who must do so. When defendant promises to keep in contact with his attorney, it is only defendant
who can do so. When defendant promises not to associate
with persons using illicit drugs, it is only defendant who can
354 State v. Lobue
do so. When defendant agrees to submit to a urinalysis, if
asked, it is only defendant who can satisfy or violate that
condition. His attorney cannot do so on his behalf. When
defendant promises to call Pretrial Services and agrees
to check in on assigned days, it is only defendant who can
do so. And, when defendant promises to obey all laws, it is
only defendant who can satisfy or violate that condition. His
attorney cannot comply for him. From context, the only conclusion permitted is that the “I,” who makes the promises in
the opening line, is the same person who must perform the
promises. That includes the promise to “[a]ppear in court at
the Lane County Circuit Courthouse in Eugene on Monday,
May 01, 2017 at 2:30 p.m.” (Boldface omitted.)
2. The release agreement expressly warns about
the criminal sanction for failure to appear personally in court
on May 1, 2017. After defendant personally promised (“I,
Zachary Michael Lobue, promise”) to do the things listed,
including to “[a]ppear in court … on May 1,” his release
agreement went on to say:
“I understand that
“…
“Failure to appear is punishable as a separate crime with 5
years in prison and $125,000 fine for a felony, or 1 year in
jail and $6,250 fine for a misdemeanor.”
(Emphases added.) That particular reference is not a reference to revocation of the release agreement and arrest on
the original charge, but is instead a warning of a “separate
crime” for failure to appear. That is a warning about ORS
162.205, which provides, in relevant 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[.]”
Once again context provides meaning. The promise to
“appear” on May 1 uses the same word “appear” about which
Cite as 300 Or App 340 (2019) 355
defendant is warned with reference to punishment for a separate crime—a felony risking five years imprisonment and
a $125,000 fine. Under ORS 162.205, the “person [who] commits the crime of failure to appear in the first degree” is
the defendant, not his attorney. Thus, the agreement left
no ambiguity about who promises to perform (“I, Zachary
Michael Lobue”) or what “appear” means (personally
“[a]ppear in court” on May 1 at 125 East 8th Avenue, Eugene,
Oregon).
3. A simultaneous Notice to Return to Court prevented any uncertainty about defendant’s promise to appear
personally. Defendant signed such a notice at the same time
as he signed the release agreement. In that contemporaneous document, defendant was told “YOU MUST RETURN
TO COURT FOR 35-Day Call (status) on May 01, 2017, at
2:30 p.m.” Immediately above his signature were the words,
“I understand that a warrant will issue for my arrest
if I do not appear in court as directed.” (Boldface in
original.) We know that we may consider such extrinsic evidence of the circumstances underlying the formation of an
agreement to determine whether a particular contractual
provision is ambiguous. Batzer Construction, Inc. v. Boyer,
204 Or App 309, 317,
129 P3d 773, rev den,
341 Or 366 (2006)
(a trial court may “consider the circumstances underlying
the formation of a contract to determine whether a particular contractual provision is ambiguous”). When defendant
signed the notice along with the release agreement, the
notice left no uncertainty about his promise to personally
“return to court.” The notice told him to “check in at the
information booth on [his] scheduled date.” (Boldface and
uppercase omitted.) Defendant signed his name beneath
the statements, made in the first person, “I,” declaring
his understanding that he would be arrested if he did not
appear as directed.
4. Law required defendant’s personal appearance.
At the time of defendant’s offense for failure to appear,
Supplementary Local Rules for Lane County Circuit Court
provided, as a uniform matter, that
“Defendants and their attorney must appear in person for criminal call at 2:30 pm on the date assigned
356 State v. Lobue
at arraignments for the purpose of making the report
required by UTCR 7.010(3). At the proceeding, the parties
will report the status of the case to the presiding judge. If a
settlement has not been reached, the case will be assigned
to a judge for a settlement conference to be held that day.
Prior to reporting for the settlement conference, the defendant and the defendant’s attorney must go to the calendar
clerk’s office for a trial date if one has not already been
scheduled. A bench warrant will be issued for any defendant
who fails to appear.”
SLR 7.011 (2017) (emphasis added). Generally, court rules
have the force of law, Francis v. Mutual Life Ins. Co., 61 Or
141, 143,
114 P 921 (1911), and “[a]ll persons are presumed
to know the law that is relevant to them,” Scherzinger v.
Portland Custodians Civil Serv. Bd.,
209 Or App 394, 407,
149 P3d 142 (2006). Moreover, defendant was represented
by counsel who would well understand the rule’s requirement that a defendant “must appear in person for criminal
call.” See SLR 7.011 (so providing). Because defendant is presumed to know the law, he may be understood to know that
his promise to appear meant that he must appear personally as local rule required.
I refer to SLR 7.011 as law, requiring defendant’s
personal appearance, not for the purpose of saying defendant
violated that law. Rather, SLR 7.011 shows what defendant
is understood to know and what his agreement meant. That
is because SLR 7.011, like the Notice to Return to Court, is
further extrinsic evidence of the circumstances at the time
of contracting. See Batzer Construction, Inc., 204 Or App at
317. Together, the notice and SLR 7.011 provide meaning to
the terms used in the release agreement and assure that
there is no ambiguity.
5. The majority’s standard of scrutiny is problematic. As a major premise, the majority sets up the principle
that a criminal statute must not be vague. 300 Or App at
345. No doubt that principle has deep constitutional roots.
See id. (citing State v. Cornell/Pinnell, 304 Or 27, 29,
741
P2d 501 (1987)) (involving Article I, sections 20 and 21, of
the Oregon Constitution and the Fourteenth Amendment
to the United States Constitution). Of course, the statute
Cite as
300 Or App 340 (2019) 357
is not at issue in this case. Nevertheless, the majority projects that principle onto the release agreement as a matter
of contract interpretation and announces a standard of
review making the issue whether the “agreement unambiguously requires personal appearance.” 300 Or App
at 346 (emphasis in original). Although I have no quarrel that the agreement, by its terms, must require defendant’s personal appearance in order to find a violation of
ORS 162.205, I question the majority’s premise that gives
a heightened standard of review to the agreement—akin
to a constitutional issue. This issue is, as the majority
seems to acknowledge, a matter of contract. In my opinion,
because this is a plain matter of contract, we do not employ
heightened scrutiny.
6. The rule of lenity is no “lens” with which to view
this agreement. The concurring opinion is helpful in explaining the majority’s approach by saying “we should view defendant’s release agreement through the lens of a contractual
‘rule of lenity’ (for lack of a better description) and strictly
construe it against the state, much as we used to do with
criminal statutes before the legislature abolished the rule of
lenity.”1 300 Or App at 347-48 (Lagesen, P. J., concurring). I
respectfully submit that the problems in alluding to a rule of
lenity are apparent. First, the rule of lenity was once a rule
of statutory construction, not a rule of contract construction.2
Second, the legislature abolished the rule of lenity in statutory
1
Explains one writer:
“The rule of lenity, which requires strict construction of penal statutes
in favor of the defendant, originated in sixteenth- and seventeenth-century
English courts in response to the broad imposition of capital punishment
mandated by the legislature. Once incorporated into United States common law, the rule of lenity came to represent the principles that individuals should have fair warning of what constitutes criminal conduct and that
courts should not extend the reach of a statute beyond what the legislature
clearly enacted.”
Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of
Lenity, 29 Harv. CR-CL L Rev 197 (1994).
2
In State v. Partain, 349 Or 10, 21,
239 P3d 232 (2010), the Supreme Court
recalled:
“For a number of years, the court relied on what it called a ‘rule of lenity.’
That rule, which also was prudential, was used by the court in doubtful cases
as a basis for giving criminal statutes a limited reading—i.e., for limiting the
sweep of legislative enactments.”
358 State v. Lobue
construction.3 And, third, the abolition of the rule as a matter of statutory construction does not mean that the rule
should survive by analogy to be extended to agreements
whose violation is a statutory offense. Rather, abolition of
the rule should confirm that it is the wrong lens with which
to read this agreement. It is the clouded lens of an aged
rule.
7. The agreement presents no danger of inconsistent results. The concurring opinion posits the danger that,
assuming the premise that the release agreement is ambiguous, two courts could reach inconsistent results. I believe,
however, that the agreement is unambiguous, that any two
courts should correctly reason that “I, Zachary Michael
Lobue” is a personal promise, and that, in any event, a
reported appellate opinion eliminates any danger of inconsistent results involving the language of this agreement.
8. The majority starts with the state in a hole. In
framing the issue, the majority describes the state to argue
“that the release agreement impliedly required defendant
to appear in person.” 300 Or App at 343 (emphasis added).
That characterization puts the state in an unfairly weak
position by suggesting that there was a concession where
there was none. It may be true that no one argued that the
words “appear in person” are found in the release agreement.
However, the state argued, “The terms of the release agreement itself show that defendant was required to appear
personally.” The state did not use the words “impliedly” or
“implicitly” in its brief. To the contrary, the state concluded:
“Simply put, if the release did not require defendant to
appear personally, then the terms of the agreement that
describe defendant’s promise to appear at the time and
3
In Bailey v. Lampert, 342 Or 321, 326-27,
153 P3d 95 (2007), the Supreme
Court explained:
“The rule of lenity—to the extent that such a rule exists—presumes that
any ambiguities in a criminal statute that imposes multiple punishments
for a crime should be resolved in favor of lenity at sentencing. Assuming that
the rule ever truly existed, ORS 161.025(2) requires that we construe penal
statutes ‘according to the fair import of [their] terms,’ rather than construing
them ‘strictly.’ In other words, the legislature has eliminated the availability
of any ‘rule of lenity’ by statute.”
(Internal citations omitted.)
Cite as 300 Or App 340 (2019) 359
location of the hearing and that explain the potential criminal liability for failure to appear would make no sense.”
In other words, the state did not concede silence or uncertainty in the terms of the agreement.
9. The majority relies on irrelevant statutes. At a
critical point in its analysis, the majority observes that, as
a general matter, Oregon statutes provide for a defendant’s
personal appearance “only at certain critical stages.” 300 Or
App at 345 (citing ORS 135.030; ORS 135.360; ORS 136.040;
ORS 137.030). With that observation, the majority then concludes that “no statute prohibits appearance through counsel in felony cases,” and therefore it could be consistent with
the agreement for defendant to appear by counsel. Id. The
majority describes the statutes accurately, but the statutes
are irrelevant. They are not “context” for the release agreement, because they only set the minimum occasions for an
appearance. They do not forbid a court from requiring other
appearances nor forbid a defendant from agreeing to appear
at other times. The issue posed by ORS 162.205 is whether
defendant failed to appear, as required under the release
agreement, after having been released from custody on the
condition that he would subsequently appear personally on
the charge. The release agreement, not the statutes, sets the
time and place for defendant to appear. Moreover, SLR 7.011
demanded that defendant “must appear in person for criminal call.” That is exactly what defendant’s release agreement required. That is also what the simultaneous Notice to
Return to Court said.
10. The majority’s precedent is concerning. This
may not be an isolated case. Akin to the shifts in statutory
construction with PGE v. Bureau of Labor and Industries,
317 Or 606,
859 P2d 1143 (1993), and again in State v.
Gaines,
346 Or 160,
206 P3d 1042 (2009), imposition of strict
construction of the release agreement in this case will open
new disputes over the various terms of release agreements
in other cases.
In the end, this matter should be simpler. Defendant
was charged with possession of a stolen vehicle, and, after
signing a release agreement, did not appear at the hearing
described in the agreement. On this record, defendant did
360 State v. Lobue
not fail to appear due to any ambiguity in his agreement to
appear in person. He breached the agreement and, despite
warning, violated ORS 162.205. In my opinion, defendant
erred, not the trial court.
For those 10 reasons, I respectfully dissent.
