No. 49 January 31, 2024 397
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JALEN BAJAJUAN NAZEDEKY SMITH,
aka Jalen Bajajuan Nazede Smith,
Defendant-Appellant.
Washington County Circuit Court
22CR2773; A180649
Erik M. Bucher, Judge.
On appellant’s petition for reconsideration filed June 6,
2023, respondent’s response to petition for reconsideration
filed October 16, 2023. Order of dismissal filed May 11, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, for response.
Before Egan, Presiding Judge, and Lagesen, Chief Judge,
and Pagán, Judge.
LAGESEN, C. J.
Reconsideration allowed; order of dismissal vacated;
appellant’s opening brief due on or before 49 days from the
date of this decision.
398 State v. Smith
Cite as 330 Or App 397 (2024) 399
LAGESEN, C. J.
ORS 19.270 generally makes the timely filing of a
notice of appeal a prerequisite to our jurisdiction over appeal.
ORS 138.071(5) creates an exception to that rule, allowing a
defendant in a criminal case to file a motion for leave to file
a late notice of appeal. The question before us is whether we
have jurisdiction to review and allow a timely-filed motion
under ORS 138.071(5) if the defendant fails to submit the
proposed notice of appeal along with the motion. We conclude that we do.
In this case, as allowed by ORS 138.071(5), defendant timely filed a motion for leave to file a late notice of
appeal within the 90-day period provided by that statute. In
accordance with the statute, the motion explained why the
delay in filing should not be attributed to defendant and,
further, identified the claim of error that defendant sought
to pursue on appeal. Due to an efiling upload error by defendant’s lawyer, defendant’s motion was not, however, “accompanied by the notice of appeal” that defendant sought to file,
as required by ORS 138.071(5)(c). The court alerted defendant’s lawyer to the error, and defendant’s lawyer promptly
corrected it by submitting the omitted notice of appeal, but,
by that time, it was a few days past the end of the 90-day
period for submitting a motion for leave to file a late notice
of appeal. The Appellate Commissioner denied the motion
for that reason, concluding that defendant’s failure to submit the proposed notice of appeal within the 90-day window deprived the court of jurisdiction to grant defendant’s
motion.
Defendant petitioned for reconsideration; the petition was referred to the Motions Department for the purpose
of resolving the jurisdictional question in a precedential
opinion. On reconsideration, we conclude that the requirement in ORS 138.071(5)(c) that a motion for leave to file a
late appeal be “accompanied by the notice of appeal” is not a
jurisdictional prerequisite to our consideration of a timely-filed motion for leave to file a notice of appeal. We conclude,
additionally, that defendant’s motion demonstrates that the
motion for leave to file a delayed appeal should be allowed
400 State v. Smith
and, accordingly, direct that the notice of appeal lodged with
the court on February 15, 2023, be accepted for filing.
Whether the ORS 138.071(5)(c) requirement that a
motion to file a late appeal be “accompanied by the notice
of appeal” is a jurisdictional requirement is a question of
legislative intent. We answer that question by examining
the “statutory text, in context, and, where appropriate, legislative history and relevant canons of construction.” Tarr v.
Multnomah County, 306 Or App 26, 33,
473 P3d 603 (2020),
rev den,
367 Or 496 (2021) (internal citation and quotation
marks omitted). Our objective is to determine what “the
enacting legislature most likely intended.”
Id.
We start with the text. The text of ORS 138.071(5)
provides, in full:
“(5)(a) Upon motion of a defendant, the Court of
Appeals shall grant the defendant leave to file a notice of
appeal after the time limits described in subsections (1) to
(4) of this section if:
“(A) The defendant, by clear and convincing evidence,
shows that the failure to file a timely notice of appeal is not
attributable to the defendant personally; and
“(B) The defendant shows a colorable claim of error in
the proceeding from which the appeal is taken.
“(b) A defendant is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when
the state appeals pursuant to ORS 138.045(1)(d).
“(c) The request for leave to file a notice of appeal after
the time limits prescribed in subsections (1) to (3) of this
section must be filed no later than 90 days after entry of
the order or judgment being appealed. The request for leave
to file a notice of appeal after the time limit prescribed in
subsection (4) of this section must be filed no later than 90
days after the party receives notice that the order or judgment has been entered. A request for leave under this subsection must be accompanied by the notice of appeal, may
be filed by mail and is deemed filed on the date of mailing
if the request is mailed as provided in ORS 19.260.
“(d) The court may not grant relief under this subsection unless the state has notice and opportunity to respond
to the defendant’s request for relief.
Cite as 330 Or App 397 (2024) 401
“(e) The denial of a motion under paragraph (a) of this
subsection is a bar to post-conviction relief under ORS
138.510 to 138.680 on the same ground, unless the court
provides otherwise.”
Pertinent to the question before us, subsection (c)
of that provision requires that a motion for leave to file a
delayed appeal “must be filed no later than 90 days after
the party received notice that the order or judgment [being
appealed] has been entered.” ORS 138.071(5)(c). Subsection
(c) further provides that a motion requesting leave to file a
late appeal “must be accompanied by the notice of appeal”
that the defendant seeks leave to file. Id.
That text tells us very little about whether that
accompaniment requirement is jurisdictional. The legislature did not speak directly to the point of whether a defendant’s failure to accompany an ORS 138.071(5) motion with
the proposed notice of appeal would deprive the court of
jurisdiction to consider the motion.
Context offers few additional clues but tends to suggest that the accompaniment requirement is not jurisdictional. Although the statute imposes a 90-day timeline for filing the motion, it does not impose a timeline for ruling on the
motion. That hints, albeit faintly, in the direction of the conclusion that the legislature may have intended that the court
would have authority to permit a defendant to correct technical defects with a timely-filed motion, such as the failure
to accompany the motion with the proposed notice of appeal.
Given the legislature’s omission of a timeline for resolving a
motion under ORS 138.071, it is not implausible to think that
the legislature intended for the court to have jurisdiction to
grant a timely-filed motion that makes the showing required
under ORS 138.071(5)(a), even where that motion was not
accompanied by the notice of appeal that the defendant seeks
to file, and then to have jurisdiction over the authorized latefiled appeal. Upon granting the motion, it would be neither
difficult nor impractical for the court to order the defendant
to promptly file the notice of appeal (if the defendant had not
promptly corrected the defect already, as defendant did here).
In contrast with the text and context of the statute, legislative history points more forcefully toward the
402 State v. Smith
conclusion that the legislature likely did not intend the
“accompaniment” requirement to be jurisdictional. The legislative history of ORS 138.071(5) demonstrates that the primary purpose of the provision was to provide an expeditious
remedy for criminal defendants who were deprived of their
appeal rights through no fault of their own. Absent such a
provision, such defendants would have to go through the
time and expense of post-conviction proceedings to obtain
the remedy to which they ordinarily would be entitled: a
delayed appeal. James Nass, then-counsel to the Supreme
Court and the Court of Appeals, testified in support of the
measure on behalf of the courts and explained that, in such
circumstances, it would be more expedient and economical
simply to allow the Court of Appeals to permit a delayed
appeal:
“The rationale for this proposal is that a defendant in that
situation may file a post-conviction relief action and will
almost invariably be afforded a delayed appeal. In the
meantime, the state will have paid appointed counsel’s
fee to prosecute the post-conviction action on behalf of the
defendant, and will have paid for the time of the deputy district attorney … to defend the action as well as expenses
attendant to the court’s adjudication of yet one more case in
which the outcome is virtually predetermined.”
Testimony, House Committee on the Judiciary, Subcommittee
1, HB 3348, Apr 23, 1987, Ex C (statement of James Nass).
As originally proposed, HB 3348 did not contain a
time limit on which a motion for late appeal could be filed
and did not require a criminal defendant to demonstrate a
colorable claim of error in the proceedings, and the Oregon
Department of Justice opposed the proposal because of those
omissions. Proposed HB 3348 (Mar 5, 1987); Testimony,
House Committee on the Judiciary, Subcommittee 1, HB
3348, Apr 23, 1987, Tape 432 (statement of Stephen Peifer).
In response to the concerns articulated by the Department
of Justice, the legislature amended the bill to include (1) the
90-day timeline for filing a motion; and (2) a requirement
that the movant demonstrate a colorable claim of error in
their criminal proceedings. See Or Laws 1987, ch 852, § 1; see
also Tape Recording, House Committee on the Judiciary, HB
3348, June 10, 1987, Tape 755 (statement of Representative
Cite as 330 Or App 397 (2024) 403
Springer). But nothing in the legislative history suggests
that the legislature intended those revisions to undercut the
underlying purpose of the measure—avoiding unnecessary
post-conviction proceedings—by precluding the correction
of defects like the one at issue here.
In other words, nothing in the legislative history
suggests that the legislature intended a criminal defendant
who timely files a motion for leave to file a late appeal, but
whose motion is defective because of failure to attach the
proposed notice of appeal or otherwise, would have to go
through the time and expense of post-conviction proceedings to obtain an appeal. On the contrary, the legislative
history indicates to us that the legislature likely intended
that our court would have jurisdiction to resolve and allow
timely-filed motions for leave to file late appeals where, as
here, any defect can be corrected easily, promptly and without prejudice to the interests of the state.1
In sum, although the text and context of ORS
138.071 is inconclusive as to whether the accompaniment
requirement is jurisdictional, the legislative history tends to
demonstrate that it is not. To the extent the issue remains
in doubt, one final consideration points to the conclusion
that the requirement is not jurisdictional. As the Supreme
Court has recognized, “[s]ubsequent to 1959 the general
trend of our decisions passing on the effects of defects in
appellate procedure has been to regard the defects as not
being jurisdictional.” Pohrman v. Klamath Co. Comm., 272
Or 390, 394,
538 P2d 70 (1975). Applying that principle, the
Supreme Court has held “that when a notice of appeal is
timely served and filed[,] the court has jurisdiction.”
Id. at
1
On that point, in its response to defendant’s petition for reconsideration,
the state “acknowledges that under these circumstances, defendant is likely to
prevail on a petition for post-conviction relief, and further, will likely be afforded
a delayed appeal.” The state does not identity any interest in having defendant’s appeal delayed further. Rather, the state simply asserts that the court
must adhere to jurisdictional limitations, regardless of concerns of expediency.
Although we agree with the point that we must enforce jurisdictional limits
(where those limits exist), the fact that the purpose of ORS 138.071(5) was to
ensure expeditious appeals in situations like this one, counsels in favor of the
conclusion that the legislature intended the court to have jurisdiction over timely-filed motions for leave to file a late notice of appeal, notwithstanding a defendant’s initial failure to attach the notice of appeal that the defendant proposes to
file if granted leave to do so.
404 State v. Smith
397. An appellate court can then assess “whether the failure
to comply with the statutory form for the notice of appeal is
sufficiently serious and prejudicial so as to grant a motion to
dismiss.” Id.
Although this situation is different—at issue is this
court’s jurisdiction over a timely, but procedurally defective,
motion for leave to file a late appeal—given the analysis
above, we think the legislature likely intended the principle articulated in Pohrman to apply with equal force to the
circumstances present here. Because defendant timely filed
and served the motion for leave to file a late notice of appeal,
we have jurisdiction to review the motion and to allow it, if
appropriate. Defendant’s failure to accompany the motion
with the notice of appeal he sought to file does not deprive
us of jurisdiction over the motion.
Having concluded that we have jurisdiction over the
motion, we now must decide whether to allow it. We conclude that defendant has demonstrated a colorable claim
of error in the proceedings below, and that the failure to
timely file the notice of appeal is not attributable to defendant. See ORS 138.071(5)(a). We therefore grant defendant’s
motion for leave to file a late notice of appeal. The notice
of appeal submitted to the court for filing on February 15,
2023, is deemed timely filed, and the appeal shall proceed.
Defendant’s opening brief is due 49 days from the date of
this decision.
Reconsideration allowed; order of dismissal vacated;
appellant’s opening brief due on or before 49 days from the
date of this decision.
