336 January 8, 2025 No. 25
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
LUCILLE ANNE BURTON,
Defendant-Appellant.
Clackamas County Circuit Court
21CR12864; A181110
Katherine E. Weber, Judge.
Argued and submitted November 20, 2024.
Emma McDermott, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
EGAN, J.
Vacated and remanded.
Cite as 337 Or App 336 (2025) 337
EGAN, J.
In this criminal case, defendant challenges her conviction, after a jury trial, for driving under the influence
of intoxicants (DUII). ORS 813.010. In her sole assignment
of error, defendant argues that the trial court erred when
it denied defendant’s petition to enter into DUII diversion,
asserting that the COVID-19 state of emergency constituted
good cause for the extension of the period of eligibility for
diversion based on the Chief Justice Order (CJO) 21-034
and CJO 21-056. For the reasons that follow, we vacate and
remand.
STATUTORY BACKGROUND AND
STANDARD OF REVIEW
Two statutes govern the diversion process in this
case, and we review the trial court’s decisions under each
statute differently. First, ORS 813.210(1)(a) provides that a
defendant may petition to enter into a DUII diversion program within 30 days of the defendant’s first appearance,
or later if the trial court approves a later filing date after
the defendant shows good cause. We review the trial court’s
“good cause” determination under ORS 813.210(1)(a) for
legal error. See State v. Johnson, 339 Or 69, 86,
116 P3d 879
(2005) (“[I]t is clear that, when [‘good cause’] appear[s] in a
statutory context, [it is] focused on real, albeit sometimes
difficult to discern, legal standards: the legislature’s view of
what is ‘good[.]’ … As such, in the absence of a factual dispute, a determination that ‘good cause’ not to dismiss has
been shown … invokes an objective standard and must be
reviewed for legal error.” (Emphasis in original.)); see also
State v. Murrell,
242 Or App 178, 182 n 1,
255 P3d 574 (2011)
(declining the state’s invitation to hold that an abuse of discretion standard applies to the good cause determination in
the statutory context).
Next, if the defendant satisfies the requirements of
ORS 813.210, the trial court “shall determine whether to
allow or deny a petition” for DUII diversion after consideration of several factors. See ORS 813.220 (noting 12 factors,
some of which “may” be considered, some of which “shall”
be considered, and some of which require denial if they are
338 State v. Burton
present). We review a court’s decision “to permit a defendant
to enter diversion in light of various considerations” under
ORS 813.220 for abuse of discretion. State v. Warrington,
219 Or App 566, 568-69,
184 P3d 1160 (2008).
BACKGROUND
The facts of this case are procedural and uncontested. On March 16, 2021, the state charged defendant
with misdemeanor DUII based on an incident that occurred
in November 2020. Defendant was arraigned on March 24,
2021, and she was represented by counsel. At the arraignment, the court told defendant that she was eligible for
diversion, and defendant received a packet of information
about that program.
Defendant next appeared with her attorney for a
status hearing on April 30, 2021. The state and defendant
informed the court that she would enter her petition for
diversion at a hearing on June 22, 2021. The court scheduled a hearing for that date, noting that it “would anticipate
entry of diversion” and a plea.
Defendant’s attorney appeared on her behalf on
June 22. Defendant did not appear, because she was in
quarantine; her defense counsel presented a doctor’s note
to excuse her absence. Defense counsel informed the court
that defendant had notified defense counsel that she did not
want to enter diversion. While setting the trial date, defense
counsel informed the court that he would be on a military
deployment until December 10, 2021. Based on that information, the court set defendant’s trial for January 6, 2022.
When defendant appeared for a status hearing
on January 6, 2022, she had a new attorney, and her new
defense counsel requested a contested diversion hearing for
this case. The court held a contested diversion hearing on
January 28, 2022.1 Defense counsel argued that defendant
should be permitted to petition for diversion “under just
1
Although the court held a hearing on defendant’s request for diversion, the
court file does not contain a petition for diversion. At the hearing on January 28,
2022, defendant’s attorney told the court that she “fill[ed] all of the diversion
paperwork,” and she “handed it” to the court’s staff.
Cite as 337 Or App 336 (2025) 339
the good cause Section [of ORS] 813.210” and “the extended
timelines under the Chief Justice’s order.” Defense counsel also argued that defendant’s previous counsel did not
adequately advise defendant regarding diversion, and she
should not be “punished” for receiving bad advice.
During oral argument, the trial court noted its concern about the timing of defendant’s request, that it had originally set a hearing for defendant to enter diversion in April
2021, and that the DUII diversion hearing was scheduled
for June 22, 2021 (about seven months earlier). The state
objected to defendant’s request for diversion, arguing that
defendant asked for trial on June 22, 2021, and there was no
dispute that defendant knew that she was eligible for DUII
diversion at that time. The state also argued that the court
informed defendant about diversion at her arraignment in
March 2021. Because defendant knew about the option for
diversion and affirmatively chose to proceed to trial, the
state argued that defendant did not demonstrate good cause.
The court denied defendant’s petition for diversion
under ORS 813.210.2 A trial was held in March 2023, and
the jury found defendant guilty of DUII. Defendant now
appeals.
DISCUSSION
On appeal, defendant argues that the trial court
erred in concluding that she was not permitted to petition to
enter diversion beyond the 30-day deadline, because “CJO
No. 21-056 automatically determined that the COVID-19
emergency constituted good cause to extend the time period
of eligibility at the time of defendant’s hearing.” According
to defendant, because the trial court erred in rejecting the
petition under ORS 813.210, the trial court never exercised
its discretion under ORS 813.220, and we should remand for
the trial court to do so.
2
Although the court did not state that defendant failed to establish good
cause when it ruled on defendant’s petition, both parties referred solely to the
good cause provision of ORS 813.210 in their arguments before the trial court.
Neither party nor the trial court referred to ORS 813.220, and the court did not
mention any of the factors from ORS 813.220 in making its decision. Under the
circumstances, we understand the court’s decision to have been based solely on
ORS 813.210.
340 State v. Burton
As noted, ORS 813.210(1) provides, in part:
“(1) After an accusatory instrument has been filed
charging the defendant with the offense of driving while
under the influence of intoxicants, a defendant may file
with the court a petition for a driving while under the influence of intoxicants diversion agreement described in ORS
813.200. The petition:
“(a) Must be filed within 30 days after the date of the
defendant’s first appearance on the summons, unless a
later filing date is allowed by the court upon a showing of
good cause. For purposes of this paragraph, the filing of a
demurrer, a motion to suppress or a motion for an omnibus
hearing does not constitute good cause.”
On September 1, 2021, Chief Justice Walters issued
CJO 21-034. In relevant part, that order provided:
“1. This order applies to DUII Diversions governed by
ORS 813.200 to 813.328 and extends or provides authority
to extend statutory time periods and time requirements
during the COVID-19 state of emergency as described
below, and, unless provided otherwise below, continuing for
60 days after the declaration of that state of emergency is
no longer in effect.
“2. Eligibility for diversion agreement
“a. Notwithstanding ORS 813.210(1), … a defendant
who was eligible for diversion on March 8, 2020, is eligible
for diversion during the COVID-19 state of emergency, provided that the defendant is otherwise eligible under ORS
813.215. The COVID-19 state of emergency constitutes existence of good cause for extension of the period of eligibility,
and a defendant need not file a motion for extension of the
period of eligibility.”
CJO 21-034 (emphases added). That order was set to expire
on January 1, 2022, but it was superseded on December 15,
2021, by CJO 21-056. CJO 21-056 provided that the good
cause extension “terminates 60 days after the declaration
of the COVID-19 state of emergency or any extension is no
longer in effect, or pursuant to further Chief Justice order,
whichever first occurs.” The state of emergency ended on
April 1, 2022. Executive Order 22-03 (Mar 17, 2022).
Cite as 337 Or App 336 (2025) 341
Both parties submit that the CJOs extended the
timeline for petitioning for DUII diversion. We agree. The
CJO states that, “[n]otwithstanding ORS 813.210(1)[,] … a
defendant who was eligible for diversion on March 8, 2020,
is eligible for diversion during the COVID-19 state of emergency,” and it states that a defendant “need not file a motion
for extension of the period of eligibility.” Those provisions
indicate that the CJO extended the 30-day time limit outlined in ORS 813.210 through the COVID-19 state of emergency. Because the CJOs establish that the COVID-19 state
of emergency “constitutes existence of good cause for extension of the period of eligibility,” and a defendant “need not
file a motion for extension of the period of eligibility,” in this
case, defendant was not required to establish “good cause”
for not filing her petition for diversion within 30 days of her
first appearance; the CJOs expressly allowed a petition to
be filed beyond the 30-day limitation that ordinarily applies,
through the end of the COVID-19 state of emergency.
The state argues that, because defendant had previously rejected the diversion program and decided to proceed to trial, the extended deadline for diversion as outlined
in the CJOs did not apply. According to the state, the CJOs
do not provide defendant another chance to accept and participate in the program when defendant had rejected diversion earlier in the case.
We disagree. When a defendant’s petition for DUII
diversion is timely, ORS 813.210 only prohibits a defendant
from filing a petition for diversion after entry of a guilty or
no contest plea or commencement of trial. ORS 813.210(1)(b).
Nothing in the statute prohibits a defendant from changing
their mind about a previous decision to proceed to trial, and
instead enter DUII diversion, within the permitted statutory time period. In this case, when defendant petitioned for
diversion, the CJOs had extended the statutory time limit,
and she was not required to show good cause in order for the
court to reach its discretionary determination under ORS
813.220. Defendant’s trial had not commenced, and she had
not entered a guilty or no contest plea. Thus, defendant’s
initial decision to proceed to trial did not cut off defendant’s
ability to petition for DUII diversion.
342 State v. Burton
Therefore, we conclude that the trial court erred
when it rejected defendant’s petition under ORS 813.210.
Because of that decision, it never exercised its discretion
under to ORS 813.220 to determine whether to permit DUII
diversion. We reverse defendant’s conviction and remand
for reconsideration of defendant’s petition for diversion. If
the trial court concludes that defendant would not be a good
candidate for diversion and denies the petition, it may then
reinstate her conviction. Warrington, 219 Or App at 569.
Vacated and remanded.
