State v. Mott ( 2023 )

830
Argued and submitted November 17, 2022; order of Court of Appeals reversed,
appeal dismissed April 6, 2023
STATE OF OREGON,
Respondent on Review,
v.
CHARLES ANTHONY MOTT, JR.,
aka Charles Mott, aka Charles A. Mott,
aka Charles Anthony Mott,
Petitioner on Review.
(CC 19CR39798) (CA A173631) (SC S069349)
527 P3d 758
Defendant appealed a judgment of conviction. The Court of Appeals issued
its decision, which, among other things, reversed and remanded defendant’s
convictions on two nonunanimous counts. Before an appellate judgment issued,
defendant filed an unopposed motion to dismiss his appeal. In an unpublished
order, the Court of Appeals denied the motion without explanation. Defendant
sought review of that order. Held: (1) Once an appellant exercises the right to
appeal, the court acquires an interest in the proceeding that is inconsistent with
the view that an appellant has the unilateral, absolute right of dismissal at any
time; (2) because initiation of an appeal implicates case-specific, institutional,
and systemic interests, an appellate court may consider a variety of factors in
deciding how to resolve an appellant’s motion to dismiss; (3) the Court of Appeals’
presumption against post-decision dismissal motions that could be overcome only
if an appellant established compelling reasons was not justified by either of the
two grounds advanced by that court (i.e., its authority to enforce its decisions and
institutional and systemic considerations); (4) an explanation of an appellant’s
reasons for seeking dismissal—whether compelling or not—is not a necessary
prerequisite for granting an appellant’s motion; and (5) a remand to the Court of
Appeals to permit it to undertake its discretionary assessment again was unnec-
essary because it would be an abuse of discretion to deny the motion where no
case-specific, institutional, or systemic factors weighed in favor of doing so.
The order of the Court of Appeals is reversed. The appeal is dismissed.
On review from the Court of Appeals.*
Laura A. Frikert, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for petitioner on review. Also on the brief was
Ernest G. Lannet, Chief Defender.
______________
* Appeal from Jackson County Circuit Court, Laura Cromwell, Judge. 315
Or App 702, 500 P3d 92 (2021).
Cite as 370 Or 830 (2023) 831
Lauren P. Robertson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Flynn, Chief Justice, and Duncan, Garrett, and
DeHoog, Justices, and Balmer and Walters, Senior Judges,
Justices pro tempore.**
GARRETT, J.
The order of the Court of Appeals is reversed. The appeal
is dismissed.
______________
** Nelson, J., resigned February 25, 2023, and did not participate in the
decision of this case. Bushong and James, JJ., did not participate in the consider-
ation or decision of this case.
832 State v. Mott
GARRETT, J.
In this case, we consider the nature and scope of the
Court of Appeals’ authority to deny an appellant’s motion
to dismiss. After that court issued a decision resolving
defendant’s criminal appeal, he filed an unopposed motion
to dismiss, which the court denied. On review, both parties
agree that the Court of Appeals erred in denying defen-
dant’s motion, but they approach the analysis differently.
For the reasons that follow, we conclude that the Court of
Appeals erred in denying defendant’s motion in this case.
Accordingly, we reverse the order of the Court of Appeals
and dismiss defendant’s appeal.
I. BACKGROUND
A. Relevant Case Law
The Court of Appeals recently addressed the nature
and scope of its authority to resolve motions to dismiss
in State v. Moore, 308 Or App 724, 482 P3d 222 (2021)
(Moore III), and State v. Lasheski, 312 Or App 714, 493 P3d
1118 (2021) (Lasheski II). Although the court initially denied
the defendants’ motions to dismiss in those cases, the court
subsequently dismissed both appeals by unpublished order.
Because Moore III and Lasheski II provide important con-
text for understanding the issues in this case, we begin by
describing them and the court’s ultimate resolution of the
motions to dismiss in some detail.
1. State v. Moore
The defendant in Moore appealed twice and obtained
a remand for resentencing each time. State v. Moore, 290 Or
App 306, 414 P3d 915 (2018) (Moore I); State v. Moore, 305
Or App 21, 469 P3d 283 (2020) (Moore II). After the Court of
Appeals issued Moore II, but before the appellate judgment
issued, the defendant filed an unopposed motion to dismiss.
The Court of Appeals initially denied the motion. Relying
on the principle that judicial power is limited to the adju-
dication of existing controversies, the court explained that
its “approach to a motion to dismiss a party’s own appeal is
dependent upon whether the filing of [that] motion * * * has
ended the case or controversy.” Moore III, 308 Or App at 726.
According to the court, if the filing of a motion to dismiss
Cite as 370 Or 830 (2023) 833
ends the controversy, the court has no discretion to deny
it; however, once the court has issued a decision, that deci-
sion “is the resolution of the case or controversy presented
on appeal,” and a party’s motion to dismiss its own appeal
no longer extinguishes the case or controversy as it would
have if it had been filed earlier. Id. at 726-27. The court’s
reasoning was grounded in the principle of enforceability.
Id. The court explained that enforceability distinguishes an
appellate decision from an appellate judgment, which termi-
nates the appellate courts’ jurisdiction over the case.1 Id. To
illustrate, as a general proposition, when an appellate court
grants a post-decision dismissal motion, the court is effec-
tively precluded from issuing an appellate judgment that
requires the parties to comply with its decision. Instead,
the court would issue an appellate judgment dismissing
the appeal, and, as a consequence, the trial court judgment
would stand as though no appeal had been taken. For those
reasons, the court explained, its “approach to motions to dis-
miss a party’s own appeal filed after issuance of an opinion
is discretionary, not mandatory.” Id.
The court then identified four factors that would
guide its exercise of discretion: (1) the reasons for dismissal,
with settlement being encouraged and motions by a prevail-
ing appellant being disfavored absent a compelling expla-
nation; (2) the expenditure of court resources; (3) “whether,
given the issues and reasoning expressed in the opinion,
granting dismissal prior to issuance of the appellate judg-
ment and thereby failing to enforce [the] decision, would
affect public confidence in the judicial system”; and (4) “the
effect, if any, that failing to enforce [the] decision by appel-
late judgment would have on a crime victim’s right to be
1
See Moore III, 308 Or App at 727 (“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.
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.” (Internal quotation marks and citation omitted.)); see
also ORS 19.270(6) (providing that, subject to limited exceptions, “[j]urisdiction
of the appellate court over a cause ends when a copy of the appellate judgment is
mailed by the State Court Administrator to the court from which the appeal was
taken pursuant to ORS 19.450”).
834 State v. Mott
present at a hearing under Article I, section 42(a), of the
Oregon Constitution.” Id. at 728. Applying those factors, the
court denied the defendant’s motion because he had offered
no explanation for why dismissal was appropriate. Id.Thereafter, the defendant filed a petition for recon-
sideration and renewed his unopposed motion to dismiss.
The defendant explained that, following the remand in
Moore I, the trial court had expressed that it would have
been amenable to conducting a resentencing hearing by
video conference, which would have avoided the need to
transfer the defendant from his Department of Corrections
(DOC) facility back to the county. After Moore II issued,
appellate counsel sought to arrange a resentencing hearing
by video conference so that, when the appellate judgment
issued, the defendant would not be transferred. However,
DOC’s legal counsel took the position that, because Moore II
effectively reversed the underlying judgment, DOC had no
authority to hold the defendant and was required to transfer
him back to the county jail. As a result of that transfer, the
defendant, among other things, would have lost the job that
it took him two years to obtain. Further, his medical care,
which included the need for further procedures to address
neck injuries that he had incurred while incarcerated,
would have been interrupted. In sum, although recogniz-
ing that a post-decision dismissal risked wasting the court’s
resources, the defendant contended that the cost-benefit
analysis had changed over time and that the unanticipated
practical consequences of a resentencing demonstrated that
dismissal was appropriate.
At that point, the Court of Appeals changed course.
In an unpublished order, the court allowed reconsideration
and granted the defendant’s post-decision dismissal motion,
but noted that such motions are disfavored. The court did not
vacate its decision in Moore II, because the defendant had
indicated that he was not requesting that relief. Thereafter,
the appellate judgment issued dismissing the appeal.
2. State v. Lasheski
Around the same time, the Court of Appeals
was addressing another post-decision motion to dismiss
in Lasheski. In that case, the court had (1) rejected the
Cite as 370 Or 830 (2023) 835
defendant’s assignments of error that would have resulted in
the reversal of his convictions and a remand for a new trial;
(2) agreed with the defendant that the trial court had erred
in refusing to merge three counts into a single conviction
and remanded the case for resentencing; and (3) declined,
in light of that remand, to address another assignment
that related to the defendant’s sentence. State v. Lasheski,
309 Or App 140, 481 P3d 966 (2021) (Lasheski I). After the
Court of Appeals issued Lasheski I, but before the appellate
judgment issued, the defendant filed an unopposed motion
to dismiss, explaining that he would receive no meaningful
benefit from merger and resentencing even though it would
reduce his criminal-history score. The defendant explained
that it was likely that the same term of incarceration would
be imposed on remand and that he had no intention of hav-
ing “future contact with the law” when he is ultimately
released from prison in his early 60s. Further, the defendant
explained that he felt “comfortable and safe where he [was]
presently housed” and would likely lose that placement and
his full-time employment when he was transferred back to
the county for resentencing.
In denying the defendant’s motion in Lasheski II,
the Court of Appeals established a presumption against
post-decision dismissal motions and further explained the
institutional and systemic reasons that such dismissals are
disfavored. Specifically, the court described the “dual effect”
of such a dismissal:
“The effect on the appellant is return to a pre-appeal pos-
ture; from the appellant’s perspective (at least, the appel-
lant’s legal perspective), it is just as though no appeal had
been taken. The trial court judgment stands, as though
no notice of appeal had ever been filed. Yet our published
opinion also stands, announcing the court’s holding on the
issues that the appellant raised on appeal (although it has
no effect on the appellant). The opinion does not somehow
become less precedential because we later granted the
appellant’s motion to dismiss.”
Lasheski II, 312 Or App at 718-19 (emphasis in original).
According to the court, that “dual effect” could incentiv-
ize “clever litigants” to use “post-opinion dismissals to
obtain what would, essentially, be advisory opinions” and
836 State v. Mott
“inappropriately lead appellants to take greater risks on
appeal, believing that, if the result was not to their liking,
they could avoid it through a post-opinion dismissal motion.”
Id. at 719-20. The court further explained that post-decision
dismissal motions “can devalue the investments that the
parties’ lawyers and the court system have put into resolv-
ing the questions that the appellant has raised.” Id. at 720.
Although acknowledging that a post-decision dismissal may
result in “cost savings to the parties, the court, and other
involved institutions and individuals,” the court explained
that those savings are “outweighed by the case-specific and
systemic costs” that would result from routinely permitting
post-decision dismissals. Id. at 720 n 3.
However, recognizing that there are some cases in
which prevailing appellants have compelling practical rea-
sons for no longer wanting the requested relief, the court
identified seven factors—in addition to the four factors pre-
viously identified in Moore III—that it would consider in
deciding whether to grant a post-decision dismissal:
“1. Whether any party or any victim of a defendant’s crime
has expressed reasoned opposition to the motion.
“2. Whether post-opinion dismissal could allow the appel-
lant to escape possible adverse legal consequences
of prevailing on an issue or issues that the appellant
chose to raise on appeal.
“3. If so, whether those legal consequences were, or reason-
ably could have been, anticipated when the appellant
filed the opening brief or at any subsequent point before
the court’s opinion issued.
“4. Whether the appellant’s decision to raise a particular
issue on appeal was influenced by the possibility of sub-
sequently filing a post-opinion dismissal motion if the
appellant was dissatisfied with the court’s resolution of
that issue, or simply did not want the relief granted.
“5. The reasonableness and diligence of the parties in pur-
suing settlement.
“6. Whether the appellant has established compelling rea-
sons for wishing to dismiss the appeal, particularly
those associated with any practical consequences of the
relief granted by the appellate court.
Cite as 370 Or 830 (2023) 837
“7. The extent to which the appellant’s expressed practical
reasons for wishing to dismiss the appeal reasonably
could have been anticipated and appreciated when the
appellant filed the opening brief or at any subsequent
point before the court’s opinion issued.”
Id. at 721-22. The court emphasized that it “expect[ed]
appellants seeking post-opinion dismissal to do just what
the sixth [factor] require[d]: to establish compelling reasons
for dismissal.” Id. at 722 (emphasis in original). The court
noted that, “[g]iven the significant systemic implications of
granting post-opinion dismissal motions,” the court expected
more than “unsworn averments” concerning adverse practi-
cal consequences for a prevailing appellant. Id. Instead, the
court explained that it expected a more complete explana-
tion “supported when feasible by citation to legal authority,
creation of an evidentiary record, or perhaps a jointly agreed
statement of facts.” Id. Further, the court indicated that,
whether or not a respondent opposes the motion, it would
benefit from an explanation of the respondent’s position that
takes into account case-specific and systemic considerations.
Id. at 722-23. The court also invited DOC to provide input if
its interests were implicated. Id. at 723.
Nonetheless, the Court of Appeals clearly signaled
how it would resolve unopposed post-decision dismissal
motions filed by appellants:
“[W]e generally will grant an appellant’s unopposed post-
opinion dismissal motion only in a narrow category of
cases: those in which dismissal (1) would not allow the
appellant to avoid possible adverse legal consequences of
the issues that the appellant chose to raise on appeal, and
(2) would allow the appellant to avoid only certain, unde-
sired practical effects of the relief granted on appeal, some-
times related to the appellant’s particular circumstances
in the custody of [DOC].”
Id. at 716 (emphases in original). In other words, the Court
of Appeals signaled that it generally would not grant appel-
lants’ unopposed post-decision dismissal motions.
Applying those principles, the court denied the defen-
dant’s motion because it was “supported only by unsworn
and generalized assertions about the possible effects of a
838 State v. Mott
remand for merger and resentencing” that “[did] not pres-
ent a sufficient justification for overriding the presumption
against post-opinion dismissal.” Id. at 723. Because the
defendant did not have the benefit of the court’s decision in
Lasheski II, the court gave the defendant leave to refile his
motion to address the matters set forth in that decision. Id.
However, the defendant did not renew his motion
to dismiss. Instead, the defendant filed an unopposed
motion to withdraw the assignment of error that the court
had declined to address in Lasheski I. The defendant also
filed an unopposed petition for reconsideration in which he
explained that, with the agreement of the state, he had filed
a motion in the trial court seeking an amended judgment
to conform to the Court of Appeals’ remand instructions in
Lasheski I, which the trial court had granted.2 In his peti-
tion for reconsideration, the defendant asked the Court of
Appeals to take two actions: (1) modify its former decision in
Lasheski I to explain that the assignment of error concern-
ing merger was moot and that the unaddressed assignment
of error had been withdrawn and (2) change the disposition
of the appeal to “affirmed.”
At that point, noting that the case was in a “fun-
damentally different posture” and that dismissal “would
recognize, essentially, the parties’ agreed resolution of the
major point in dispute” through the trial court’s entry of the
amended judgment, the court asked the parties whether
they would object to simply dismissing the appeal. Neither
party opposed dismissal. In an unpublished order, the court
treated the defendant’s petition for reconsideration as a
motion to dismiss, which it then granted. Thereafter, the
appellate judgment issued dismissing the appeal.
2
Our understanding is that the parties and the trial court apparently agreed
that that court had authority pursuant to ORS 137.172(1) to enter an amended
judgment to conform to the remand instructions in Lasheski I (i.e., merge counts
into a single conviction) even though no appellate judgment had issued. See ORS
137.172(1) (“The trial court retains authority after entry of judgment of convic-
tion or a supplemental judgment, including during the pendency of an appeal, to
modify the judgment, including the sentence, to correct any arithmetic or clerical
errors or to delete or modify any erroneous term in the judgment.”). However,
we do not endorse a practice in which trial courts enter amended judgments to
conform to the remand instructions in appellate decisions before the appellate
judgments issue.
Cite as 370 Or 830 (2023) 839
B. The Facts
With that understanding of the Court of Appeals’
approach to resolving post-decision dismissal motions, we
turn to the historic facts of this case, which are undisputed.
Defendant appealed a judgment of conviction, contending
that the trial court had erred (1) in instructing the jury that
it could return a nonunanimous verdict and by receiving
two such verdicts and (2) in admitting evidence of his con-
sciousness of guilt. In a per curiam decision, the Court of
Appeals reversed and remanded defendant’s convictions on
the two nonunanimous counts, but rejected his challenge to
the unanimous verdicts on the remaining counts and his
evidentiary challenge. State v. Mott, 315 Or App 702, 500
P3d 92 (2021).
Two months after the Court of Appeals issued its
decision in Mott, but before an appellate judgment issued,
defendant moved to dismiss his appeal. Noting that “[a]
criminal defendant in a non-capital case has historically
had a choice whether or not to initiate and continue an
appeal of their convictions and sentence,” defendant argued
that he was “entitled to dismiss his appeal after consulting
with his attorney with no further showing about how that
decision impacts the opposing party or the justice system.”
Defendant asserted that the opinion operated only to resolve
the parties’ dispute, because the state had conceded that the
nonunanimous verdicts must be reversed and remanded and
the court’s per curiam opinion summarily rejected defen-
dant’s evidentiary contention by citing to well-established
case law.3 Based on that assertion, defendant reasoned that
the systemic concerns identified in Moore III and Lasheski II
were not implicated. Alternatively, addressing several of the
factors identified in Moore III and Lasheski II, defendant
asked the Court of Appeals to exercise its discretion and
grant his motion.
Defendant’s motion was accompanied by his attor-
ney’s declaration. The attorney explained that defendant’s
3
Defendant also asserted that the per curiam opinion was “not preceden-
tial,” citing the proposed version of ORAP 10.30. However, ORAP 10.30, a tem-
porary rule of appellate procedure concerning the Court of Appeals’ issuance of
nonprecedential decisions, was not in effect when the per curiam opinion was
issued in this case.
840 State v. Mott
reasons for dismissal were privileged but did not involve the
“practical” considerations that had been at issue in other
cases. If the court required the disclosure of defendant’s rea-
sons, the attorney requested leave to file a confidential dec-
laration that was not disclosable to the state in order to pre-
serve the privilege.4 Among other things, the attorney also
described her decision to raise the assignments of error that
she had, which had not been influenced by the possibility of
obtaining an advisory opinion or a post-decision dismissal;
her understanding that defendant would not face adverse
legal consequences on remand such as increased punish-
ment; and the parties’ unsuccessful attempts to settle the
matter.5
The state did not oppose defendant’s motion.
Instead, noting that it did not have all of the information
about defendant’s reasons for seeking dismissal, the state
deferred to the Court of Appeals as to its resolution. The
state also indicated that the district attorney’s office had
been in contact with the victim, but that the victim had not
expressed an opinion about the motion.
In an unpublished order, the Court of Appeals
denied the motion without explanation. Defendant sought
review of that order, which we allowed.
II. ANALYSIS
Defendant contends that the Court of Appeals
erred in denying his motion to dismiss his appeal. The state
agrees that the Court of Appeals erred in this case, although
it approaches the analysis differently than defendant does.
Specifically, the parties disagree about whether the Court
4
See OEC 503(2)(a) (providing that “[a] client has a privilege to refuse to
disclose and to prevent any other person from disclosing confidential commu-
nications made for the purpose of facilitating the rendition of professional legal
services to the client” between “the client * * * and the client’s lawyer”); see also
Frease v. Glazer, 330 Or 364, 370, 4 P3d 56 (2000) (explaining that, “[a]lthough
the attorney-client privilege belongs exclusively to the client, the client’s attorney
may claim the privilege on the client’s behalf” (citations omitted)).
5
After Mott issued, defendant’s attorney had proposed the entry of an
amended judgment dismissing the nonunanimous counts. According to defen-
dant’s attorney, the proposal would have eliminated the possibility of a retrial
on those counts, reduced defendant’s overall sentence by 90 days, and left his
criminal-history score unaffected. After consulting with the district attorney,
the state declined the offer.
Cite as 370 Or 830 (2023) 841
of Appeals has discretion to deny an appellant’s motion to
dismiss. Defendant contends that the court lacks discre-
tion; the state contends otherwise. Assuming an appellate
court has discretion, the parties both contend that the Court
of Appeals’ presumption against post-decision dismissal
motions cannot be justified by the institutional and systemic
concerns on which it is based. Instead, each party points to
a variety of case-specific, institutional, and systemic factors
that an appellate court may consider in exercising its discre-
tion. In all events, the parties agree that, under the circum-
stances of this case, defendant’s unopposed post-decision
dismissal motion should have been granted.
We begin by addressing whether an appellate
court has discretion to deny an appellant’s motion to dis-
miss an appeal. Although this case concerns an unop-
posed post-decision dismissal motion—as did Moore III and
Lasheski II—some aspects of defendant’s arguments more
broadly implicate an appellate court’s authority to deny an
appellant’s motion to dismiss—whether opposed or unop-
posed or whether pre- or post-decision. In particular, we
understand defendant to contend that noncapital criminal
defendants are entitled to dismiss their appeals at any time
before the appellate judgment issues. In support of that con-
tention, defendant makes two arguments: (1) dismissal is
required when a motion is unopposed because of a lack of
adverseness, and (2) dismissal is required because a defen-
dant has the right to waive the right to appeal. We address
each of those arguments in turn.
First, defendant argues that appellate courts have
no authority to deny an appellant’s unopposed motion to
dismiss because the motion “demonstrates disinterest in
continuing the litigation and a lack of ongoing adverseness
between the parties” and “conclusively ends the contro-
versy” between them. We disagree. For example, a motion
to dismiss, even if granted, does not mean that the appel-
late decision will necessarily be vacated, and, if the respon-
dent disagrees with the reasoning of that decision, adver-
sity may remain. Cf. State v. Snyder, 337 Or 410, 417-20,
97 P3d 1181 (2004) (concluding that adversity existed where
the state, which had prevailed in the Court of Appeals, peti-
tioned for review as to the merits of that court’s statutory
842 State v. Mott
interpretation, but the defendant was no longer challeng-
ing his conviction and asserted that he no longer had any
interest in the outcome of the case). Further, adversity may
exist even when a motion is unopposed. Cf. Snyder, 337 Or
at 418 (explaining that “ ‘[m]any justiciable controversies
go by default or without opposition’ ” and that “adversity
exists even in cases in which no respondent appears” (quot-
ing Teledyne Industries v. Paulus, 297 Or 665, 671, 687 P2d
1077 (1984) (brackets in Snyder))); id. at 418-19 (concluding
that “the mere possibility that parties to a proceeding could
take opposing positions satisfies the adversity requirement”
and that that conclusion “demonstrates the low threshold
for determining the existence of adverse legal interests”);
Teledyne Industries, 297 Or at 671 (explaining that the
absence of opposition “does not mean the plaintiff in a civil
case always receives the prayer of the complaint”; instead,
“the case is submitted to the court without benefit of the
defendant’s appearance or opposition, yet the court enters
judgment only for the proper award”). As we will explain, an
appellate court has discretion to deny an appellant’s motion
to dismiss. Thus, the filing of an unopposed motion to dis-
miss does not extinguish adversity.
Second, we understand defendant to argue more
generally that noncapital criminal defendants have a right
to voluntarily dismiss their appeals at any time before issu-
ance of the appellate judgment.6 According to defendant,
that is so because, in a noncapital case, a direct appeal is
a statutory right that is exercised voluntarily and, for that
reason, the right can be waived in the absence of a legisla-
tively imposed limitation. See ORS 138.020 (providing that
“[e]ither the state or the defendant may as a matter of right
appeal from a judgment in a criminal action in the cases
prescribed in ORS 138.010 to 138.310, and not otherwise”);
ORS 138.035 (providing that a defendant may appeal from
certain judgments and orders); see also State v. Hunter, 316
Or 192, 199-200, 850 P2d 366 (1993) (explaining that con-
stitutional and statutory rights can be waived). Defendant
notes that, in the context of civil appeals, the legislature has
6
In capital cases, an appeal to this court is mandatory. See ORS 138.052(1)
(“The judgment of conviction and sentence of death entered under ORS 163.150(1)(f)
is subject to automatic and direct review by the Supreme Court.”).
Cite as 370 Or 830 (2023) 843
limited an appellant’s ability to waive the right to appeal
by conferring discretion on the appellate courts to grant a
motion to dismiss, but no such limitation exists in the con-
text of criminal appeals. See ORS 19.410(1), (3) (providing
that, in the context of a civil appeal, an appellate court
“may dismiss” under certain circumstances); see also ORS
138.015 (failing to include ORS 19.410 in the list of statutes
governing civil appeals that also apply to criminal appeals).
Although we agree that a defendant in a noncapital
case has the right to decide whether to appeal, we disagree
that, having exercised that right, it necessarily follows that
the defendant also has an absolute and unqualified right to
dismiss at any time. The rights of litigants coexist with the
inherent authority of the court, which includes the authority
to manage proceedings in an orderly and efficient manner.
Our decision in State v. Hightower, 361 Or 412, 393 P3d 224
(2017), is instructive. There, the defendant had exercised his
right to be represented by counsel at trial; however, after
trial had commenced, the defendant changed his mind and
sought to exercise his right to represent himself. Id. at 414.
We explained that, although “[n]othing prevents a defendant
who has invoked the right to counsel or the right to self-
representation from later waiving that right[,]” the defen-
dant’s “right to waive is not absolute and unqualified.” Id. at
417. We further explained that, “once a trial has begun, a
number of interests other than the defendant’s [constitu-
tional right to self-representation] come into play,” including
“the trial court’s overriding obligation to ensure the fair-
ness and integrity of the trial and its inherent authority to
conduct proceedings in an orderly and expeditious manner.”
Id. at 417-18. “In light of those additional interests that are
triggered by the commencement of trial, any invocation of
the right to counsel or to self-representation that occurs
after that time is subject to the court’s discretion.” Id. at 418.
As do trial courts, appellate courts have authority
to conduct their proceedings in an orderly and expeditious
manner. See ORS 1.010(3) (providing that every court of jus-
tice has power “[t]o provide for the orderly conduct of pro-
ceedings before it”). This court has recognized that author-
ity in a variety of contexts. See, e.g., Sills v. State of Oregon,
370 Or 240, 245-46, 518 P3d 582 (2022) (explaining that
844 State v. Mott
the “fugitive dismissal rule” “is based on the principle that
appellate courts possess inherent authority to dismiss a
defendant’s appeal if that defendant has absconded from the
court’s jurisdiction” and that the justifications for the rule
offered by most courts “relate to the dignity and efficient
functioning of the court before which the case is pending”
(internal quotation marks omitted)). Thus, we agree with
the Court of Appeals that, once an appellant exercises the
right to appeal, the court acquires an interest in the pro-
ceeding that is inconsistent with the view that an appellant
has the unilateral, absolute right of dismissal at any time.
We also agree with the Court of Appeals that the
initiation of an appeal implicates case-specific, institutional,
and systemic interests. For that reason, an appellate court,
in deciding how to resolve an appellant’s motion to dismiss,
may consider a variety of factors, such as (1) whether dis-
missal would effectuate the parties’ settlement agreement
or would otherwise serve to recognize the parties’ agreed
resolution of the dispute; (2) whether there is reasoned oppo-
sition to the motion from another party or a crime victim
or there are other indications that a party would be preju-
diced by dismissal; (3) whether there are indications that
the appellate process is being abused (e.g., a party initiated
the appeal to obtain an advisory opinion or moved to dis-
miss to avoid adverse legal or other practical consequences
that were or reasonably could have been anticipated earlier);
(4) whether, or the extent to which, appellate resources have
been expended and additional systemic resources will need
to be expended if the motion is denied; and (5) whether there
are other indications that dismissal of the appeal is not in
the interests of justice (e.g., would adversely affect the effi-
cient and orderly administration of justice, the fairness or
integrity of the proceeding, or the public’s confidence in the
judicial system). In Moore III and Lasheski II, the Court of
Appeals effectively identified many of those factors.
However, in those cases the Court of Appeals also
established a presumption against post-decision dismissal
motions that can be overcome only if an appellant estab-
lishes compelling reasons. That court justified the presump-
tion on two grounds: (1) its authority to enforce its decisions,
Moore III, 308 Or App at 725-27, and (2) institutional and
Cite as 370 Or 830 (2023) 845
systemic considerations, Lasheski II¸ 312 Or App at 718-21.
As we will explain, although each of those grounds may be
appropriately considered in a given case, neither justifies a
presumption disfavoring post-decision dismissal motions.
Turning first to the Court of Appeals’ enforcement
justification, we agree that an appellate court has author-
ity to enforce its decisions. See ORS 1.010(4) (providing, in
part, that every court of justice has power “[t]o compel obe-
dience to its judgments, orders, and process”). As the Court
of Appeals explained in Lasheski II, unless vacated, its pub-
lished decision announcing the court’s holding on the issues
raised on appeal remains precedential and governs future
litigants even if the appeal is later dismissed. 312 Or App at
719. Post-decision dismissal of an appeal, which leaves the
decision intact (unless the court agrees to vacate it, which is
governed by separate principles not at issue here7), thus has
no effect on the authority of the court as to litigants other
than the parties themselves. As to the parties, however, the
effect of a post-decision dismissal is to remove the court’s
ability to issue an appellate judgment and thereby enforce
its decision as to those parties. Thus, when an appellant files
a post-decision dismissal motion, the court’s interest in its
own enforcement power is the interest in compelling that
appellant to ultimately abide by the court’s decision. There
may be case-specific reasons to require an appellant to do so;
however, it is more appropriate to make that determination
on a case-by-case basis rather than applying a presumption
against all post-decision dismissal motions.
Similarly, that presumption is not justified by the
institutional and systemic considerations identified by
the Court of Appeals. As noted, in Lasheski II, the Court
of Appeals pointed to the “dual effect” where, if a post-
decision motion to dismiss is granted, then the trial court
judgment stands as though the appellant had never initi-
ated an appeal, but the appellate court’s published decision
also stands, affecting future litigants but not the appellant.
7
The parties in this case—like the parties in Moore III and Lasheski II—did
not request that the Court of Appeals vacate its decision. See Rogue Advocates
v. Board of Comm. of Jackson County, 362 Or 269, 273 n 4, 407 P3d 795 (2017)
(explaining that vacatur is an extraordinary, discretionary remedy to which a
party must show an equitable entitlement).
846 State v. Mott
The court noted the ways that the “dual effect” inappropri-
ately incentivizes clever litigants and devalues the systemic
investments made in resolving the appeal. The “dual effect”
exists whenever an appeal is dismissed post-decision and
that decision is not vacated. However, there are some cir-
cumstances in which post-decision dismissal should not be
disfavored. For example, as the court noted in Moore III,
settlements are “always encouraged.” 308 Or App at 728. A
court will generally grant a post-decision dismissal motion
when the parties have settled their dispute. Thus, to the
extent that the Court of Appeals’ reasoning in Lasheski II
reflects a concern that the “dual effect” incentivizes clever
litigants to abuse the system (e.g., seek advisory opinions,
fail to engage in a proper cost-benefit analysis when decid-
ing which assignments of error to raise and then dismiss if
the results are not to their liking) or devalues the expendi-
ture of systemic resources, it is, again, more appropriate to
address those concerns on a case-by-case basis rather than
by applying a presumption against all post-decision dis-
missal motions.
Apart from the presumption, the Court of Appeals
also explained that, in exercising its discretionary author-
ity, appellants seeking dismissal—at least those seeking
dismissal post-decision—are required “to establish com-
pelling reasons.”8 Lasheski II, 312 Or App 722 (emphasis in
original). Compelling reasons, in the Court of Appeals’ view,
appear to be limited to a narrow set of circumstances—that
8
To “establish” compelling reasons, the Court of Appeals explained that
“unsworn averments” are insufficient and that it expected a more complete
explanation “supported when feasible by citation to legal authority, creation of an
evidentiary record, or perhaps a jointly agreed statement of facts.” Lasheski II,
312 Or App at 722. However, we note that motions to dismiss and the aver-
ments that they contain are typically signed by a party’s attorney and subject to
ORCP 17, which has been adopted as a rule of appellate procedure by this court
and the Court of Appeals. ORAP 1.40(4). Pursuant to ORCP 17, the attorney’s sig-
nature certifies, among other things, that the motion “is not being presented for
any improper purpose,” ORCP 17 C(2); that the “legal positions taken in the * * *
motion * * * are warranted by existing law,” ORCP 17 C (3); that “the allegations
and other factual assertions in the * * * motion * * * are supported by evidence,”
ORCP 17 C(4); and that those certifications are based on the attorney’s “reason-
able knowledge, information and belief, formed after the making of such inquiry
as is reasonable under the circumstances,” ORCP 17 C(1). Attorneys who make
false certifications may be sanctioned. ORCP 17 D; see ORAP 1.40 n 1 (so indicat-
ing); ORAP 13.25 (providing for petitions for sanctions).
Cite as 370 Or 830 (2023) 847
is, circumstances in which dismissal “would not allow the
appellant to avoid possible adverse legal consequences of
the issues that the appellant chose to raise on appeal,” and
“would allow the appellant to avoid only certain, undesired
practical effects of the relief granted on appeal, sometimes
related to the appellant’s particular circumstances in the
custody of [DOC].” Lasheski II, 312 Or App at 716 (emphases
in original).
Although the parties agree that the Court of Appeals
was incorrect to require an appellant to establish compel-
ling reasons for dismissal, they disagree about the role an
appellant’s reasons should play in the court’s discretionary
decision. Defendant argues that, because a defendant’s rea-
sons for seeking dismissal “are not particularly probative”
of the considerations underlying a court’s decision to dis-
miss, they “should not generally be a consideration.” In par-
ticular, defendant notes that, in some instances, requiring
a defendant to establish compelling reasons for dismissal
may “wrongly intrude on the attorney-client privilege” (e.g.,
the defendant’s reasons may involve admissions of guilt
and acceptance of responsibility). The state counters that
a defendant’s reasons for dismissal are relevant consider-
ations that “provide the state and the victim with an oppor-
tunity to provide a meaningful response to the defendant’s
motion” and provide the court with information that may
help alleviate any institutional and systemic concerns that
the court may have (e.g., wasted systemic or institutional
resources or the defendant’s avoidance of legal or practical
consequences that were or could have been reasonably antic-
ipated earlier in the process).
Certainly, an appellant’s reasons for seeking dis-
missal can be helpful to a court in making its discretion-
ary decision, particularly when dismissal is sought after
the appellate process is well underway. For example, once
the Court of Appeals understood the defendant’s unantici-
pated practical reasons for seeking dismissal in Moore, the
court dismissed the appeal by unpublished order. However,
we are not persuaded that an explanation of an appel-
lant’s reasons for seeking dismissal—whether compelling
or not—is a necessary prerequisite for granting the appel-
lant’s motion. We also agree that such a requirement could
848 State v. Mott
create complications related to the attorney-client privilege.
Nonetheless, to assist the court in making its decision, an
appellate court may ask for an explanation and appellants
may choose to provide one when appropriate and permissi-
ble. As the state notes, defendants remain free not to dis-
close that information, “but that choice may impact whether
the court will grant their motion.”
With the foregoing principles in mind, we turn to the
Court of Appeals’ decision in this case. The decision whether
to grant or deny an appellant’s motion to dismiss—whether
opposed or unopposed or pre- or post-decision—is committed
to the sound discretion of the appellate court. Discretionary
decisions are those in which a court chooses among several
legally correct outcomes. See, e.g., State v. Harrell/Wilson,
353 Or 247, 254, 297 P3d 461 (2013) (“[J]udicial discretion is
always bounded by a simple framework: It must be lawfully
exercised to reach a decision that falls within a permissi-
ble range of legally correct outcomes.”). A court can exceed
the bounds of its permissible discretion in a variety of ways.
Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 116-18,
376 P3d 960 (2016). For example, a court “may abuse its dis-
cretion if its decision is based on predicate legal conclusions
that are erroneous.” Id. at 117. A court may also abuse its
discretion if its decision is “clearly against all reason and
evidence.” Id.; see Botofan-Miller and Miller, 365 Or 504,
506, 446 P3d 1280 (2019), cert den, ___ US ___, 141 S Ct 134
(2020) (explaining that appellate courts will uphold a trial
court’s best interests determination “unless that court exer-
cised its discretion in a manner that is clearly against all
reason and evidence” (internal quotation marks omitted)).
Here, the Court of Appeals denied defendant’s motion
to dismiss without explanation. Because defendant was not
seeking to avoid adverse practical effects from the relief
granted on appeal, his motion did not fit within the nar-
row category of cases in which the Court of Appeals had
indicated a willingness to grant a post-decision motion to
dismiss. See Lasheski II, 312 Or App at 716 (“[W]e gener-
ally will grant an appellant’s unopposed post-opinion dis-
missal motion only in a narrow category of cases: those in
which dismissal[, among other things,] * * * would allow the
appellant to avoid only certain, undesired practical effects
Cite as 370 Or 830 (2023) 849
of the relief granted on appeal[.]” (Emphasis in original.)).
Thus, we understand that the court’s denial of defendant’s
motion reflected its application of the presumption against
post-decision dismissal motions established in Moore III
and Lasheski II.9 Having concluded that the presumption
is not justified for the reasons advanced by the Court of
Appeals, we further conclude that that court abused its dis-
cretion in denying defendant’s motion. See State v. Fults, 343
Or 515, 523, 173 P3d 822 (2007) (concluding that the Court
of Appeals abused its discretion in considering plain error
based on the rationale that the court had expressed).
In that circumstance, we would typically remand
to the Court of Appeals to permit it to undertake its dis-
cretionary assessment again. See id. (explaining that, when
a court abuses its discretion, the appropriate disposition
is to reverse and remand if that court, “after weighing all
the relevant factors,” could “justify its choice in some dif-
ferent way”); State v. Vanornum, 354 Or 614, 631, 317 P3d
889 (2013) (explaining that “[t]he nature of discretion is that
it is best exercised by the entity principally charged with
its exercise”). However, we conclude that a remand in this
case is unnecessary because, under the circumstances here,
there is only one legally correct outcome. See State v. Rogers,
330 Or 282, 312, 4 P3d 1261 (2000) (reasoning that, “[i]f
there is only one legally correct outcome, ‘discretion’ is an
inapplicable concept”). As we will explain, because no case-
specific, institutional, or systemic factors weigh in favor of
9
Defendant contends that the Court of Appeals erred in denying his motion
because that court failed to provide a “sufficient explanation.” However, we under-
stand the court’s decision to be based on its default rule that dismissal would only
be granted in the “narrow category of cases” identified in Lasheski II. 312 Or App
at 716; cf. Hightower, 361 Or at 421 (explaining that, although appellate review
is facilitated by an express statement of a trial court’s findings, such findings
are not required provided that the record reveals the reasons for the trial court’s
action and the appellate court is not left to speculate about the rationale for the
trial court’s decision). In all events, we note that meaningful appellate review
generally is facilitated when a court explains its discretionary decision even
when the explanation is minimal and not complex. Cf. Hightower, 361 Or at 413(reasoning that, “[i]f a trial court exercises [its] discretion to deny a defendant’s
motion for self-representation, it should make a record that reflects how it exer-
cised that discretion”); McCarthy v. Oregon Freeze Dry Inc., 327 Or 84, 957 P2d
1200, adh’d to as clarified on recons, 327 Or 185, 957 P2d 1200 (1998) (explaining
that, to permit meaningful appellate review, the Court of Appeals must describe
the relevant facts and legal criteria supporting its attorney fee awards).
850 State v. Mott
denying defendant’s motion to dismiss, doing so would be an
abuse of discretion. See Espinoza, 359 Or at 117 (reasoning
that a court abuses its discretion if its decision is “clearly
against all reason and evidence”).
Although the parties did not formally settle their
dispute, defendant’s motion was unopposed by the state and
the victim and there are no indications that any party other-
wise will be prejudiced by dismissal. Under that circum-
stance, a dismissal would effectively recognize the parties’
agreed resolution of their dispute (i.e., leave the trial court
judgment in place as if no appeal had occurred). In addition,
defendant’s attorney explained in the dismissal motion and
accompanying declaration that the appeal had not been filed
for an inappropriate purpose and that she was unaware of
any adverse legal or practical consequences that defendant
was seeking to avoid through dismissal. Defendant’s attor-
ney further explained that defendant’s reasons for seeking
dismissal were protected by the attorney-client privilege
and offered to share them in a way that would preserve the
privilege.
The parties expended resources in briefing and
arguing the case, and, under the circumstances, which
included the state’s concession, defendant likely knew well
in advance of the issuance of the court’s decision that his
appellate challenge to the nonunanimous counts would
result in a remand. The Court of Appeals also expended
its limited resources in reviewing the case and issuing a
decision that essentially accepted the state’s concession and
applied established precedent to reject defendant’s other
challenges.
Nonetheless, the denial of defendant’s motion has
resulted—and, if upheld, would continue to result—in the
significant expenditure of additional systemic resources.
To illustrate, in addition to litigating the denial of his dis-
missal motion in this court, we are holding in abeyance a
second petition that defendant filed to preserve his ability
to challenge the merits of the Court of Appeals’ decision in
the event that we were to uphold the denial of his motion
to dismiss (State v. Mott (S069287)). And even if defendant
had not sought review in this court, the case would have
Cite as 370 Or 830 (2023) 851
been remanded to the trial court on issuance of the appel-
late judgment. The parties would have to relitigate the two
nonunanimous counts, which could result in a second trial.
In turn, such litigation would require any victims to again
decide whether or how to exercise their constitutional rights.
See, e.g., Or Const, Art I, § 42 (describing victim’s rights). At
a time when criminal defense resources are severely lim-
ited, the expenditure of systemic resources resulting from
the denial of this motion is significant.
Finally, there is no indication that the appellate
process is being abused. Nor is there any indication that
the interests of justice generally would be prejudiced by
dismissal.10
Thus, we hold that the Court of Appeals erred in
denying defendant’s post-decision dismissal motion when
that motion was unopposed; when dismissal would result in
significant systemic savings to the parties, the trial court,
the victim, and others (e.g., the county, DOC, and poten-
tial jurors and witnesses); and when dismissal would not
prejudice the interests of justice. Accordingly, we reverse
the order of the Court of Appeals and, because there are no
remaining issues to resolve on appeal, dismiss defendant’s
appeal.11
The order of the Court of Appeals is reversed. The
appeal is dismissed.
10
Although we acknowledge that the effect of a dismissal in this case is to
leave two nonunanimous verdicts in place, that is effectively defendant’s choice
and part of his agreed resolution of this dispute. The result would be the same
if a defendant was convicted by nonunanimous verdict and chose not to appeal
or seek post-conviction relief. See Watkins v. Ackley, 370 Or 604, 607, 523 P3d 86
(2022) (“[W]hen a petitioner seeks post-conviction relief, on Sixth Amendment
grounds, from a judgment of conviction which was based on a nonunanimous
verdict and which became final before * * * [Ramos v. Louisiana, 590 US ___, 140
S Ct 1390, 206 L Ed 2d 583 (2020),] issued, the petitioner is entitled to relief—
assuming that none of the procedural defenses in the Post-Conviction Hearings
Act have been raised and sustained.”).
11
Because we are dismissing defendant’s appeal, which leaves the trial court
judgment in place as if no appeal had occurred, we designate the state as the
prevailing party.