306
Submitted November 21, 2022, affirmed February 23, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANDREW JOHN BRUNKAL,
Defendant-Appellant.
Polk County Circuit Court
15CR14320; A175795
525 P3d 500
This is a delayed appeal pursuant to a grant of post-conviction relief.
Defendant appeals a judgment of conviction for multiple sexual offenses committed against two children. He assigns error to the trial court’s denial of his motion
to strike an officer’s testimony regarding defendant’s failure to deny the victims’
allegations of inappropriate touching when the officer first informed defendant of
them. Defendant relies, in part, on the state’s concession in the post-conviction
proceedings that defendant had preserved an OEC 403 challenge. Held: The
Court of Appeals has an independent obligation to determine whether an argument advanced on appeal was preserved at trial. Vokoun v. City of Lake Oswego,
189 Or App 499, 508,
76 P3d 677 (2003), rev den,
336 Or 406 (2004). Defendant’s
motion to strike did not preserve the evidentiary challenges he raised on appeal.
For that reason, the court did not reach them.
Affirmed.
Sally L. Avera, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, and Sara F.
Werboff, Deputy Public Defender, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge,
and Jacquot, Judge.
LAGESEN, C. J.
Affirmed.
Cite as 324 Or App 306 (2023) 307
LAGESEN, C. J.
This is a delayed appeal pursuant to a grant of post-conviction relief. See, e.g., Dickson v. Fhuere, 316 Or App 62,
66-67,
501 P3d 1072 (2021) (remedy for criminal defense
counsel’s failure to adequately protect appeal rights is
delayed appeal). Defendant appeals a judgment of conviction
for multiple sexual offenses committed against two children.
He assigns error to the trial court’s denial of his motion to
strike an officer’s testimony regarding defendant’s failure
to deny the victims’ allegations of inappropriate touching
when the officer first informed defendant of them. We affirm
because defendant’s motion to strike did not preserve the
evidentiary challenges he raises on appeal.
As noted, this appeal comes to us in a somewhat
unusual posture, having arisen out of the grant of post-conviction relief to petitioner.1 Because defendant’s contentions on appeal rely in part on the positions taken by the
parties in the post-conviction proceedings, we discuss facts
from the post-conviction proceeding as needed to provide
context for those arguments. The facts relevant to the issue
before us are not disputed.
Defendant was charged with multiple sex offenses
against two children. At trial, the arresting officer testified
that defendant did not deny any allegations against him
prior to his arrest, something that was, in the officer’s words,
“important” to him. Defendant, through counsel, objected to
the testimony and moved to strike, saying, “We just spoke
about that. I don’t think that’s proper to—the officers make
that conclusion, and I’d ask to strike that.”2 The court denied
the motion to strike and the witness proceeded to comment
several times on the fact that defendant did not deny the
1
Although the post-conviction court granted defendant relief based on his
lawyer’s failure to follow through with an appeal and awarded this delayed
appeal as a remedy, the court denied relief on defendant’s claims that, if successful, would have resulted in a new trial. Defendant appealed the post-conviction
judgment; that appeal, Brunkal v. Cain, A175409, has been abated pending the
outcome of this appeal.
2
On the record before us, it is unclear what counsel was referring to when
stating “We just spoke about that.” The motion to strike followed a discussion outside the presence of the jury—but on the record—about the timing of the delivery
of the Miranda warnings. That sidebar discussion did not address the issue of the
admissibility of evidence that defendant did not deny the allegations.
308 State v. Brunkal
allegations. Defense counsel made no additional objections
to the testimony and the matter was not discussed further.
After defendant was convicted, his lawyer, who represented defendant at trial, started an appeal for defendant
but then abandoned the appeal. Defendant’s lawyer did not
inform defendant that he was abandoning the appeal. As a
result, we dismissed the appeal for failure to file briefing
and defendant lost the opportunity to pursue an appeal.
Defendant then petitioned for post-conviction relief.
Among other grounds for relief, he alleged that his lawyer
rendered inadequate and ineffective assistance of counsel, in
violation of Article I, section 11, of the Oregon Constitution,
and the Sixth and Fourteenth Amendments to the United
States Constitution, by abandoning the appeal. In response
to that ground for relief, the state conceded that counsel
was inadequate for abandoning the appeal. In the state’s
view, trial counsel had preserved an OEC 403 objection to
the officer’s testimony that defendant’s failure to deny the
allegations was significant, making the abandonment of
the appeal unreasonable. The post-conviction court granted
relief and awarded defendant a delayed appeal. The court
reasoned:
“Trial counsel admits he simply did not pursue the
appeal he started for [defendant] and did not inform him
that he had abandoned it. He testified he did this as he saw
no viable issues for appeal. [Defendant] was not afforded
the opportunity to file an Anders brief,[3] and, in any event,
there appears to be a viable claim for appeal regarding
the Court’s handling of testimony regarding [defendant’s]
pretrial silence and the issues raised in regarding concurrence, any other preserved issues and any plain error. Trial
Counsel was deficient in his handling of the appeal.
“For all allowed claims, the following relief is granted:
[Defendant] is allowed to file an untimely appeal.”
3
See Anders v. California, 386 US 738, 744,
87 S Ct 1396,
18 L Ed 2d 493
(1967) (addressing procedures to be followed when appointed counsel determines
that there are no meritorious issues for appeal in a criminal case, including process for submitting a brief explaining anything in the record that might arguably
support an appeal); see also State v. Balfour,
311 Or 434, 451-54,
814 P2d 1069
(1991) (same, but addressing Oregon procedures, including process for defendant
to submit a brief pro se).
Cite as
324 Or App 306 (2023) 309
As authorized by the post-conviction court’s order,
defendant initiated this delayed appeal. He assigns error to
the denial of his motion to strike. He argues that the officer’s
testimony about his nondenial was inadmissible hearsay
because the state failed to establish that the nondenial was
an adoptive admission (there is no evidence that his silence
indicated that he agreed with the officer’s accusation); even
if it was admissible under the hearsay rules it was more prejudicial than probative under OEC 403; and even if admissible under rules of evidence, admission of that testimony
violated defendant’s state and federal constitutional right
to remain silent. The state responds that none but defendant’s OEC 403 contention is preserved. As for the OEC 403
contention, the state notes that it concedes preservation to
remain consistent with its position in the post-conviction
proceeding that petitioner’s objection preserved an OEC 403
objection. It urges us, however, to independently analyze the
question of preservation.
Notwithstanding the state’s partial concession, we
have an “independent obligation to determine whether
an argument advanced on appeal was preserved at trial.”
Vokoun v. City of Lake Oswego, 189 Or App 499, 508,
76 P3d
677 (2003), rev den,
336 Or 406 (2004) (citing State v. Wyatt,
331 Or 335, 344-46,
15 P3d 22 (2000)). To preserve a claim
of error, an appellant must provide the trial court with an
explanation of his objection that is specific enough to afford
the court an opportunity to analyze any alleged error. Wyatt,
331 Or at 343. Generally, an issue not preserved in the trial
court will not be considered on appeal. Ailes v. Portland
Meadows, Inc.,
312 Or 376, 380,
823 P2d 956 (1991); State
v. Abel,
241 Or 465, 467,
406 P2d 902 (1965); ORAP 5.45(4).
Defendant argues that the issues are preserved.
He bases that argument on his motion to strike and on
the state’s concession in the post-conviction proceedings
that defendant had preserved the OEC 403 challenge. We
address each argument.
With respect to the motion to strike, defendant’s
objection—“I don’t think that’s proper to—the officers make
that conclusion”—did not provide the trial court with an
explanation that was specific enough to afford the court an
310 State v. Brunkal
opportunity to analyze the different alleged errors he raises
to us. Wyatt, 331 Or at 343. By its terms, his objection below
appeared to challenge the propriety of the officer drawing a
conclusion from defendant’s denial. The objection did not on
its face suggest that the admission of the denial was problematic for any reason, let alone the reasons identified now
on appeal. Accordingly, that objection did not preserve the
issues that defendant now asks us to decide.
As for the state’s concession in the post-conviction
proceedings, we conclude that it also did not preserve defendant’s appellate challenges, including the OEC 403 issue
that the state conceded was preserved. We do so for two
reasons.
First, as noted, a concession does not take the issue
of preservation off of the table, given our “independent obligation to determine whether an argument advanced on
appeal was preserved at trial.” Vokoun, 189 Or App at 508.
In other words, the issue of preservation is not one that can
be resolved by agreement or acquiescence of litigants; it is
an issue that must be resolved by the court, without deference to a litigant’s waiver of the issue or concession on the
point. State v. Taylor,
323 Or App 422, 426-27, 427 n 3,
523
P3d 696 (2022); West Hills Development Co. v. Doughman,
294 Or App 274, 282 n 3,
432 P3d 292 (2018); Harrison v.
Hall,
211 Or App 697, 701,
156 P3d 141, rev den,
343 Or 159
(2007).
Second, we do not understand the post-conviction
court’s grant of relief to have rested on the state’s concession.
The court’s ruling focused on the fact that by abandoning
the appeal without informing defendant, defendant “was not
afforded the opportunity to file an Anders brief[.]” That focus
on the procedural deprivation suffered by defendant is consistent with our case law addressing claims where counsel’s
inadequacy has resulted in a defendant being completely
deprived of an appeal, which does not require an assessment of the merits of any potential appellate issue. “[W]hen
a post-conviction petitioner establishes that [defense
counsel] inadequately failed to protect the petitioner’s
right to appeal, the petitioner generally is entitled to post-conviction relief in the form of a delayed appeal of the
Cite as 324 Or App 306 (2023) 311
underlying criminal conviction—without having to establish any meritorious claim of error to raise in that appeal.”
Lambert v. Premo,
274 Or App 380, 385-86,
360 P3d 720
(2015) (emphasis in original).4 Although the court noted in
its ruling that “there appears to be a viable claim for appeal”
related to defendant’s “pretrial silence” and other issues, the
court’s analysis does not suggest that the state’s concession
regarding preservation played a role in that analysis.5 Said
differently, we do not read the post-conviction court’s grant
of relief to determine what issues were properly preserved for
appeal; we understand the ruling simply to grant defendant
a delayed appeal to remedy the complete deprivation of an
appeal, including the deprivation of the opportunity to submit a Balfour brief, resulting from counsel’s inadequacy in
abandoning the appeal without communicating with defendant.
For the foregoing reasons, the issues that defendant
has raised on appeal were not preserved. ORAP 5.45(4).
Defendant does not request plain error review in this case,
and we therefore do not undertake that analysis. See State
v. Ardizzone, 270 Or App 666, 673,
349 P3d 597, rev den,
358
Or 145 (2015); ORAP 5.45(1). Accordingly, we affirm.
Affirmed.
4
Although Lambert and similar cases typically have involved the situation
where counsel has failed to file a notice of appeal, the situation here—in which
counsel filed a notice of appeal but abandoned the appeal without communicating
with defendant—is functionally indistinguishable.
5
Because we do not understand the post-conviction court’s ruling to rest on
the state’s merits concession, we do not address how, if at all, a post-conviction
court’s reliance on a concession to grant post-conviction relief might bear on the
criminal proceedings following a grant of post-conviction relief.
