State v. Zamora-Martinez

The state moves to dismiss defendant’s pending appeal in this case under ORAP 8.05(3). That rule provides:

“If a defendant in a criminal case, a petitioner in a post-conviction relief proceeding, a plaintiff in a habeas corpus proceeding, a petitioner in a parole review proceeding, or a petitioner in a prison disciplinary 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. 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.”

(Emphasis added.) We deny the motion for the following reasons.

The state moves to dismiss defendant’s appeal “because defendant-appellant has absconded from the jurisdiction of the court and is a fugitive from justice.” The motion is supported by a copy of a warrant for defendant’s arrest and by an affidavit that incorporates defendant’s probation officer’s report. That report indicates that defendant is subject to the general conditions of probation set out in ORS 137.540(1) and the following special conditions:

“1. If deported not to reenter the US, if legally reenters contact PO within 30 days of entry[.]

“2. Money Judgment of $365.00[.]”

We also know from the report that defendant was deported on July 1, 2005, and that, at the time that the report was written, it was believed that he had returned to the United States.1

*25The issue framed by the state’s motion is whether the record before us shows that defendant “absconded from supervision” within the meaning of ORAP 8.05(3).2 Our rules of appellate procedure are subject to the ordinary rules of construction concerning administrative rules and statutes, as set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 612 n 4, 859 P2d 1143 (1993). One of the rules of construction that applies to ORAP 8.05(3) is that the words of the rule, unless specifically defined, are to be given their ordinary meaning. See Alanis v. Barrett Business Services, 179 Or App 79, 82, 39 P3d 880 (2002) (holding that in construing an administrative rule, we apply the same analytical framework applicable to the interpretation of statutes). To “abscond” in the context of the rule means to “evade the legal process of a court by hiding within or secretly leaving its jurisdiction.” Webster’s Third New Int’l Dictionary 6 (unabridged ed 2002). The word “supervision” in the context of the rule means the “direction, inspection, and critical evaluation” of another. Id. at 2296. The requirements that the rule imposes for dismissal are in the present tense. In other words, the language of the rule authorizes an appellate court to dismiss the appeals of those persons who have absconded while supervision is ongoing.

Defendant’s argument in response to the state’s motion to dismiss his appeal is straightforward: Although he may have been in violation of his probation during some of the time period mentioned in the probation officer’s report, there is no indication in the report that he also absconded from ongoing supervision at any time. He points to the fact that his terms of probation do not provide for supervision after he was deported and that, even if he violated his conditions of probation by entering the United States illegally, he *26was not under supervision at that time or at any time thereafter because his supervision by Washington County Community Corrections had ceased at the time of his deportation and had never recommenced. While conceding that he remained on probation subject to its terms and conditions after he was deported, he concludes that the record shows only that, from that time forward, he was on unsupervised probation; therefore, he argues, his appeal should not be dismissed -under the express provisions of the governing rule that require that he has absconded from “supervision” as a predicate to dismissal.

We agree with defendant’s argument. Based on the record before us, we cannot conclude that defendant absconded from supervised probation during the time that his appeal has been pending. The terms of his probation required him to contact a probation officer within 30 days of any legal reentry into the United States. They did not otherwise require him to report to a probation officer and abide by his or her direction after he was deported from the United States. That is, if defendant did not enter the country legally, he was not required to report to a probation officer and abide by the officer’s direction. The evidence in the record does not establish whether he entered the country legally or illegally; thus, the state has failed to carry its burden to demonstrate that defendant absconded from supervision within the meaning of ORAP 8.05(3).

The dissent disagrees, insisting that defendant absconded from supervision within the meaning of ORAP 8.05(3) because he remained on supervised probation, even after he left the State of Oregon. In part, it reasons:

“There is no argument that his probation had expired, and there is no indication in the record that his probationary status was ever changed, suspended, or terminated; thus, defendant remained on formal — that is, supervised— probation throughout the relevant time period.”

210 Or App at 29 (Rosenblum, J., dissenting). With respect, the dissent’s assertion improperly equates the concept of formal probation with the concept of supervised probation and *27ignores not only the ordinary meaning of the word “supervision” in the rule but the facts in this case.3 Under ORS 137.540(1), the “court may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the court” including to “[r]eport as required and abide by the direction of the supervising officer.” ORS 137.540(1)(o). Thus, it is possible under the statute for a defendant to be on formal probation without being supervised, where the court has specifically deleted the requirement of ORS 137.540(1)(o).

That is what happened here. The judgment contained a provision that was to supersede ORS 137.540(l)(o) in the event that defendant was deported. It provided, “If deported not to illegally reenter USA; if legally reenters, contact [probation officer] within 30 days of entry.” After defendant was deported, his obligations to report were governed by that provision of the judgment. There is no evidence that the trial court directed Washington County Community Corrections to continue to supervise defendant while he was in a foreign country or that he was to be supervised by some agency of that country on behalf of Washington County, and there is no evidence in this record that, after defendant returned to the United States, his supervision by a probation officer recommenced. In the absence of some kind of arrangement for defendant to continue to be supervised after he was deported, the only reasonable inference from the record is that the trial court intended, as ORS 137.540 authorized it to do, to delete the requirement that defendant be supervised after he was deported.

Dismissal of an appeal under ORAP 8.05(3) requires more than the fact that the person is on probation and the fact that the person violates the terms of the person’s probation. To agree with the dissent’s reasoning would be to read the requirement of “supervision” out of the rule. A person cannot abscond from supervision unless that person is being *28supervised, and if the drafters of the rule had intended ORAP 8.05(3) to apply to unsupervised probation, they could have said so. Moreover, if defendant’s probation conditions required him to report to a probation officer upon his return to the United States without qualification, and defendant then failed to report as required, dismissal of his appeal would be warranted. Those are not the circumstances of this case.

Beyond the authority granted to us by our own rule, there exists the inherent discretionary authority to grant the state’s motion to dismiss defendant’s appeal. Pruett and Pruett, 185 Or App 669, 677, 60 P3d 1094, rev den, 335 Or 443 (2003). We decline to exercise that authority in this case for the following reasons. All we know from the record presented to us by the state in support of its motion to dismiss is that defendant may have returned to the United States and a warrant was issued for his arrest. Under these circumstances, and without more evidence before us, we decline to exercise our inherent authority to dismiss defendant’s appeal.

Motion to dismiss appeal denied.