724
On appellant’s motion to dismiss filed September 25, and respondent’s response
filed October 13, 2020; motion to dismiss is denied January 27, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL STEVEN MOORE,
Defendant-Appellant.
Clackamas County Circuit Court
CR1301855; A168300
482 P3d 222
In State v. Moore, 305 Or App 21,
469 P3d 283 (2020), after the opinion issued,
but prior to issuance of the appellate judgment, defendant moved to dismiss his
appeal. Defendant offers no explanation as to why, having obtained precisely the
relief sought on appeal, he now desires dismissal. The state, likewise, without
explanation, does not object to defendant’s motion. Held: Having been offered no
reason to exercise discretion to grant the motion, the motion to dismiss is denied.
Motion to dismiss is denied.
Robert D. Herndon, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services for motion.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, for response.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
JAMES, J.
Motion to dismiss is denied.
Cite as 308 Or App 724 (2021) 725
JAMES, J.
This matter has been appealed to this court two
times. In State v. Moore, 290 Or App 306, 309,
414 P3d 915
(2018) (Moore I), defendant appealed the judgment imposing sentences on his conviction for three counts of rape in
the second degree. ORS 163.365. We reversed and ordered
defendant resentenced. At resentencing, the trial court
imposed consecutive sentences, explaining that three considerations affected its decision, one of which was that
the defendant insisted on a trial “so the victim then was
reoffended and ha[d] to appear in court once again and
explain this case.” Defendant appealed from that resentencing, arguing that the record must affirmatively show
that the trial court imposed the sentence based solely on
the facts of the case and defendant’s personal history, and
not on defendant’s exercise of his constitutional rights. We
agreed, exercised our discretion to correct the error under
our plain-error doctrine, and remanded for a third sentencing. State v. Moore,
305 Or App 21, 22,
469 P3d 283 (2020)
(Moore II).
After we issued our opinion in the matter, but prior
to issuance of the appellate judgment, defendant moved to
dismiss the appeal. Defendant offered no explanation as to
why, having obtained precisely the relief sought on appeal,
he now desired dismissal. We called for a response from
the state, who, likewise, without explanation, simply said
that “it has no objection to defendant’s motion.” We conclude
that our response to defendant’s motion to dismiss his own
appeal, following issuance of our opinion, is discretionary,
not mandatory. Having been offered no reason from defendant why we should exercise our discretion to grant the
motion, the motion is denied.
At the outset, we consider the timing of defendant’s
motion, occurring here after issuance of the opinion but
before issuance of the appellate judgment. As we will
explain, the timing of the motion determines whether our
response is discretionary or obligatory.
Undertaking an appeal from a circuit court judgment
is a voluntary action—typically parties are not compelled
726 State v. Moore
to appeal. In appealing, a party is alleging to have been
harmed by a ruling of the trial court. Generally, an allegation of harm is a necessary element to an appeal. Article VII
(Amended), section 3, of the Oregon Constitution requires
an appellate court to affirm a trial court, notwithstanding
any error, if there is little likelihood that the error affected
the verdict. State v. Davis, 336 Or 19, 33,
77 P3d 1111 (2003).
When a party seeks to dismiss an appeal, while the impetus
for moving to dismiss may have many motives, as a practical matter the effect of such a motion is that the party is
disclaiming that they have been harmed by a ruling of the
circuit court, that requires an appellate remedy. A voluntary dismissal of an appeal will generally end the case or
controversy.
The Oregon Constitution provides that judicial
power is “limited to the adjudication of an existing controversy.” Yancy v. Shatzer, 337 Or 345, 362,
97 P3d 1161
(2004). When a court, including an appellate court, is asked
to decide “a matter that no longer is a controversy between
the parties[,] … Article VII (Amended), section 1, of the
Oregon Constitution constrains us from doing so.”
Id. at 363.
A justiciable controversy requires an “actual and substantial controversy between parties having adverse legal interests.” Brown v. Oregon State Bar,
293 Or 446, 449,
648 P2d
1289 (1982). “A justiciable controversy is, by very definition,
one that is not hypothetical.” Couey v. Atkins,
357 Or 460,
470,
355 P3d 866 (2015).
Accordingly, our approach to a motion to dismiss a
party’s own appeal is dependent upon whether the filing of
a motion to dismiss a party’s own appeal has ended the case
or controversy. If it has, then we are without discretion to
deny it. However, that is not the case when such a motion is
filed after the issuance of an opinion.
ORS 19.450(1) distinguishes between a “[d]ecision”
of this court and its “[a]ppellate judgment.” The statute
defines a “[d]ecision” as “a memorandum opinion, an opinion
indicating the author or an order denying or dismissing an
appeal.” A decision designates the prevailing party or parties, states whether the prevailing party is awarded costs
and, if so, states who is to pay the costs. ORS 19.450(1)(a).
Cite as 308 Or App 724 (2021) 727
The appellate judgment is “the decision of the Court
of Appeals …, or such portion of the decision as may be
specified by the rule of the Supreme Court, together with an
award of attorney fees or allowance of costs and disbursements, if any.” ORS 19.450(1)(b). For an appeal from a circuit
court, as in this case, the appellate judgment is effective
when a copy is entered in the appellate court’s register and
the appellate judgment is mailed to the court from which
the appeal was taken. ORS 19.450(2). The jurisdiction of
the appellate court over the case does not end, and the trial
court does not regain jurisdiction, until that mailing. ORS
19.270(6).
Effectively, the principal distinction between an
opinion and the appellate judgment is enforceability. As
we explained in International Brotherhood v. Oregon Steel
Mills, Inc., 180 Or App 265, 271-72,
44 P3d 600 (2002):
“The trial court’s judgment remains in effect during the
pendency of an appeal. Unless the judgment is stayed, the
party that prevailed in that court may enforce it by all of
the ordinary methods. See ORS 19.330. A decision of this
court or the Oregon Supreme Court reversing or modifying the judgment does not affect the ability to enforce it
until the appellate decision becomes effective. The appellate decision becomes effective when the appellate judgment issues, and that appellate judgment is effective
in itself, without any action of the lower court. See ORS
19.450(2).”
Therefore, when a party files an appeal alleging to
have been harmed by a ruling of a circuit court, it is our
opinion—the decision of the court—that is the resolution of
the case or controversy presented on appeal. Accordingly,
a motion to dismiss a party’s own appeal filed after the
issuance of an opinion does not extinguish the case or controversy, as it would do so if filed earlier. Rather, the issuance of our opinion resolves the appellate case or controversy. This does not change when the motion is filed prior
to issuance of the appellate judgment. The appellate judgment is the mechanism to enforce our resolution. As such,
our approach to motions to dismiss a party’s own appeal
filed after issuance of an opinion is discretionary, not
mandatory.
728 State v. Moore
In exercising our discretion in such circumstances,
we are guided by several considerations.1 First, we consider
the reasons given for dismissal. Settlement among the parties is always encouraged. Motions that are the result of a
joint settlement of the dispute, not just on appeal, but globally, will weigh in favor of granting the motion to dismiss.2
In contrast, a motion to dismiss an appeal filed by the party
who initiated the appeal, and prevailed on appeal, is disfavored, absent a compelling explanation. Second, we consider the court resources affected by our decision. Third, we
consider whether, given the issues and reasoning expressed
in the opinion, granting dismissal prior to issuance of the
appellate judgment and thereby failing to enforce our decision, would affect public confidence in the judicial system.
Fourth, we consider the effect, if any, that failing to enforce
our decision by appellate judgment would have on a crime
victim’s right to be present at a hearing under Article I, section 42(a), of the Oregon Constitution.
Applying those principles here, defendant initiated
the appeal, prevailed on the issue raised, and has offered no
explanation for why dismissal is appropriate. We therefore
decline to exercise our discretion to dismiss the appeal following the issuance of our decision.
Motion to dismiss is denied.
1
Defendant does not ask us to vacate our decision in this case. Vacatur is
an “extraordinary remedy” to which a party must show an “equitable entitlement.” Kerr v. Bradbury, 340 Or 241, 250,
131 P3d 737, adh’d to on recons,
341 Or
200,
140 P3d 1131 (2006) (internal citations omitted). “[A]ny choice regarding the
application of vacatur must take account of the public interest. Judicial precedents are presumptively correct and valuable to the legal community as a whole.”
Id. (internal quotation marks and citations omitted).
2
ORAP 7.45(1) provides that, “[i]f a party files a motion to dismiss an appeal
filed by that party, or files a response to such a motion, and the motion is the
result of a negotiated settlement or compromise, the motion or response shall so
state.”
