State v. Moore

308 Or.App. 724

482 P.3d 222

STATE of Oregon, Plaintiff-Respondent,

v.Daniel Steven MOORE, Defendant-Appellant.

A168300

Court of Appeals of Oregon.

January 27, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services for motion.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, for response.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

JAMES, J.

This matter has been appealed to this court two times. In State v. Moore , 290 Or. App. 306, 309, 414 P.3d 915 (2018) ( Moore I ), defendant appealed the judgment imposing sentences on his conviction for three counts of rape in the second degree. ORS 163.365. We reversed and ordered defendant resentenced. At resentencing, the trial court imposed consecutive sentences, explaining that three considerations affected its decision, one of which was that the defendant insisted on a trial "so the victim then was reoffended and ha[d] to appear in court once again and explain this case." Defendant appealed from that resentencing, arguing that the record must affirmatively show that the trial court imposed the sentence based solely on the facts of the case and defendant's personal history, and not on defendant's exercise of his constitutional rights. We agreed, exercised our discretion to correct the error under our plain-error doctrine, and remanded for a third sentencing. State v. Moore , 305 Or. App. 21, 22, 469 P.3d 283 (2020) ( Moore II ).

After we issued our opinion in the matter, but prior to issuance of the appellate judgment, defendant moved to dismiss the appeal. Defendant offered no explanation as to why, having obtained precisely the relief sought on appeal, he now desired dismissal. We called for a response from the state, who, likewise, without explanation, simply said that "it has no objection to defendant's motion." We conclude that our response to defendant's motion to dismiss his own appeal, following issuance of our opinion, is discretionary, not mandatory. Having been offered no reason from defendant why we should exercise our discretion to grant the motion, the motion is denied.

At the outset, we consider the timing of defendant's motion, occurring here after issuance of the opinion but before issuance of the appellate judgment. As we will explain, the timing of the motion determines whether our response is discretionary or obligatory.

Undertaking an appeal from a circuit court judgment is a voluntary action—typically parties are not compelled to appeal. In appealing, a party is alleging to have been harmed by a ruling of the trial court. Generally, an allegation of harm is a necessary element to an appeal. Article VII (Amended), section 3, of the Oregon Constitution requires an appellate court to affirm a trial court, notwithstanding any error, if there is little likelihood that the error affected the verdict.

State v. Davis , 336 Or. 19, 33, 77 P.3d 1111 (2003). When a party seeks to dismiss an appeal, while the impetus for moving to dismiss may have many motives, as a practical matter the effect of such a motion is that the party is disclaiming that they have been harmed by a ruling of the circuit court, that requires an appellate remedy. A voluntary dismissal of an appeal will generally end the case or controversy.

The Oregon Constitution provides that judicial power is "limited to the adjudication of an existing controversy." Yancy v. Shatzer , 337 Or. 345, 362, 97 P.3d 1161 (2004). When a court, including an appellate court, is asked to decide "a matter that no longer is a controversy between the parties[,] * * * Article VII (Amended), section 1, of the Oregon Constitution constrains us from doing so." Id. at 363, 97 P.3d 1161. A justiciable controversy requires an "actual and substantial controversy between parties having adverse legal interests." Brown v. Oregon State Bar , 293 Or. 446, 449, 648 P.2d 1289 (1982). "A justiciable controversy is, by very definition, one that is not hypothetical." Couey v. Atkins , 357 Or. 460, 470, 355 P.3d 866 (2015).

Accordingly, our approach to a motion to dismiss a party's own appeal is dependent upon whether the filing of a motion to dismiss a party's own appeal has ended the case or controversy. If it has, then we are without discretion to deny it. However, that is not the case when such a motion is filed after the issuance of an opinion.

ORS 19.450(1) distinguishes between a "[d]ecision" of this court and its "[a]ppellate judgment." The statute defines a "[d]ecision" as "a memorandum opinion, an opinion indicating the author or an order denying or dismissing an appeal." A decision designates the prevailing party or parties, states whether the prevailing party is awarded costs and, if so, states who is to pay the costs. ORS 19.450(1)(a).

The appellate judgment is "the decision of the Court of Appeals * * *, or such portion of the decision as may be specified by the rule of the Supreme Court, together with an award of attorney fees or allowance of costs and disbursements, if any." ORS 19.450(1)(b). For an appeal from a circuit court, as in this case, the appellate judgment is effective when a copy is entered in the appellate court's register and the appellate judgment is mailed to the court from which the appeal was taken. ORS 19.450(2). The jurisdiction of the appellate court over the case does not end, and the trial court does not regain jurisdiction, until that mailing. ORS 19.270(6).

Effectively, the principle distinction between an opinion and the appellate judgment is enforceability. As we explained in International Brotherhood v. Oregon Steel Mills, Inc. , 180 Or. App. 265, 271-72, 44 P.3d 600 (2002) :

"The trial court's judgment remains in effect during the pendency of an appeal. Unless the judgment is stayed, the party that prevailed in that court may enforce it by all of the ordinary methods. See ORS 19.330. A decision of this court or the Oregon Supreme Court reversing or modifying the judgment does not affect the ability to enforce it until the appellate decision becomes effective. The appellate decision becomes effective when the appellate judgment issues, and that appellate judgment is effective in itself, without any action of the lower court. See ORS 19.450(2)."

Therefore, when a party files an appeal alleging to have been harmed by a ruling of a circuit court, it is our opinion—the decision of the court—that is the resolution of the case or controversy...