Oregon Supreme Ct - March 3, 2016
by: Aalvarez • March 3, 2016 • no comments
Appellate Procedure - Motion to Dismiss under ORAP 8.05(3) - Evidence that a Defendant Has Absconded
Under the current version of ORAP 8.05(3), “[i]f a defendant in a criminal case, *** on appeal of an adverse decision, escapes or absconds from custody or supervision, the respondent on appeal may move for dismissal of the appeal.” Further, “If the appellant has not surrendered at the time the motion is decided by the court, the court may dismiss the appeal or judicial review.”
Today, the Oregon Supreme Court holds that “the motion” referenced by the statute is a state’s motion to dismiss the appeal and that the state must produce sufficient evidence that the defendant is still in abscond status when the motion is decided in order for the court to dismiss the defendant's appeal.
Here, the defendant’s criminal appeal was pending before the Court of Appeals. During that time, he absconded from post-prison supervision, prompting the state to move to dismiss his appeal in mid-January. The defendant was eventually brought back into custody and released on February 5th, after the state filed the motion but before the motion was decided. On February 25th, the state’s motion to dismiss the defendant’s appeal was granted. The defendant sought reconsideration and the Court of Appeals denied that motion, declining to reinstate the defendant’s appeal.
On review, the defendant asserted that the state had not proved that he was on abscond status on February 25, the day the motion was decided. Although there may have been evidence that the defendant was on abscond status when the motion was filed in mid-January, the defendant contended that he was returned to custody on January 22nd and released on February 5th. Following his release, the defendant contended there was no evidence that he was on abscond status on February 25th.
The Oregon Supreme Court agreed with the defendant. Although the state presented evidence that the defendant’s post-prison supervising officer had issued a warrant for the defendant’s arrest on February 26th due to the defendant’s failure to report in person on February 24th, that evidence was only presented during the state’s response to the defendant’s motion for re-consideration, not during the hearing on the state’s motion to dismiss the defendant’s appeal. Rather, the only evidence presented on February 25, the day the state’s motion to dismiss was decided, was evidence that the defendant had earlier absconded in January. That evidence was insufficient to prove that on February 25th, the defendant was still in abscond status. Reversed and remanded. State v. Lazarides, 358 Or. 728 (2016)
Permanency Hearings - ORS 419B.923 - Raising Claims of Ineffective Assistance of Counsel on Direct Appeal
In addition to the mechanism for setting aside a juvenile court judgment provided by ORS 419B.923, a parent may also assert an inadequate assistance of counsel claim for the first time on direct appeal from a judgment that changed a permanent plan from reunification to guardianship.
Here, the juvenile court took jurisdiction over father’s children and instructed him to appear for a review hearing to consideer the state’s request to change the permanency plans away from reunification. Father was late for the hearing and his attorney did not appear at all. Based on the evidence presented, the court changed the permanency plan away from reuinfication. Father did not move to set aside the judgments as provided by ORS 419B.923. Instead, he appealed the judgments directly, arguing that his counsel was inadequate for failing to appear at the hearing.
On appeal, the Court of Appeals affirmed, holding that because the legislature created a mechanism for setting aside the permanency judgments in the creation of ORS 491B.923, that father should have challenged the adequacy of trial counsel through a motion to set aside the judgment, not through a direct appeal.
The Oregon Supreme Court reversed the Court of Appeals, holding that a parent may raise an inadequate assistance of counsel claim on direct appeal. The Court explained that such a holding does not render ORS 491B.923 useless. This is because, in part, if a party asserting an inadequate assistance of counsel claim on direct appeal fails to utilize the procedure provided by ORS 491B.923 and the Court of Appeals determines the record is insufficient to warrant relief, the Court may, where appropriate, affirm without prejudice to the parent's ability to renew the claim before the juvenile court under ORS 419B.923 or remand for an evidentiary hearing under ORS 419B.923.
In this case, the record was insufficient to determine whether counsel’s failure to appear constituted inadequate assistance that caused father suffered cognizable prejudice. As such, the Court remanded the ineffective assistance of counsel claim to back to the juvenile court to determine whether father is entitled to relief under ORS 419B.923 DHS v. T.L., 358 Or. 679 (2016)
