State v. Lasheski ( 2021 )

714
On appellant’s motion to dismiss filed on March 11, motion to dismiss appeal
denied with leave to file a new motion to dismiss within 14 days of publication of
this opinion June 30, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEFFREY LEE LASHESKI,
Defendant-Appellant.
Deschutes County Circuit Court
15FE0442; A165490
493 P3d 1118
Defendant seeks a post-opinion dismissal of his appeal from a criminal con-
viction of three counts of sexual abuse. In the Court of Appeals’ previous opinion
on defendant’s appeal, the court determined that the three counts of conviction
should have been merged, which required resentencing. State v. Lasheski, 309
Or App 140, 150, 481 P3d 966 (2021). In this motion for dismissal, defendant
argues that resentencing would provide no legal benefit, since he would likely be
sentenced to the same 75-month prison term, but would likely impact his current
employment and prison location within the Oregon Department of Corrections.
Held: Post-opinion dismissal of appeals are generally disfavored to prevent appel-
lants from escaping the legal consequences of appeals. In a limited set of cases,
the practical considerations may present a compelling justification for such dis-
missal. However, defendant has not presented evidence or legal authority suffi-
cient to overcome the presumption against post-opinion dismissal in this case.
Motion to dismiss appeal denied with leave to file a new motion to dismiss
within 14 days of publication of this opinion.
Walter Randolph Miller, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, for motion.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
HADLOCK, J. pro tempore.
Motion to dismiss appeal denied with leave to file a
new motion to dismiss within 14 days of publication of this
opinion.
Cite as 312 Or App 714 (2021) 715
HADLOCK, J. pro tempore.
Once again, we are called on to address a circum-
stance that we most recently discussed in State v. Moore,
308 Or App 724, 482 P3d 222 (2021). That circumstance,
which seems to be arising with increasing frequency in
criminal appeals, occurs when the defendant-appellant files
an unopposed motion to dismiss the appeal after our opin-
ion has issued. We explained in Moore that, once the court’s
opinion has issued, our decision whether to grant such a dis-
missal motion is discretionary. Id. at 727. We held that “a
motion to dismiss an appeal filed by the party who initiated
the appeal, and prevailed on appeal, is disfavored, absent a
compelling explanation,” and we outlined factors that may
influence our decision whether to grant such a motion:
“First, we consider the reasons given for dismissal. Set-
tlement among the parties is always encouraged. Motions
that are the result of a joint settlement of the dispute, not
just on appeal, but globally, will weigh in favor of grant-
ing the motion to dismiss. * * * Second, we consider the
court resources affected by our decision. Third, we con-
sider whether, given the issues and reasoning expressed
in the opinion, granting dismissal prior to issuance of the
appellate judgment and thereby failing to enforce our deci-
sion, would affect public confidence in the judicial system.
Fourth, we consider the effect, if any, that failing to enforce
our decision by appellate judgment would have on a crime
victim’s right to be present at a hearing under Article I,
section 42(a), of the Oregon Constitution.”
Id. at 728. We did not describe those factors in more detail in
Moore because the appellant had given no reason for seek-
ing post-opinion dismissal of his own appeal. In the absence
of such an explanation, we denied the motion. Id.1
In this case, too, defendant-appellant seeks post-
opinion dismissal of his appeal. And in this case, as in Moore,
the state does not oppose that motion—although the motion
does not reflect a settlement among the parties.2 We take
1
The Moore appellant later sought reconsideration, spelling out the reasons
he wished to dismiss his appeal. We resolved that petition for reconsideration by
unpublished order.
2
We observed in Moore that settlements are “always encouraged” and stated
that motions “that are the result of a joint settlement of the dispute, not just on
716 State v. Lasheski
the opportunity to explain in more detail why such motions
are disfavored and will be granted only when the appellant
presents a compelling reason for dismissal. We also explain
why, as a general rule, we will not dismiss appeals in which
our opinion granted meaningful relief to the appellant in a
form that the appellant requested, but which has possible
adverse legal consequences that the appellant now seeks to
avoid. Thus, we generally will grant an appellant’s unop-
posed post-opinion dismissal motion only in a narrow cate-
gory 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 the Oregon Department of Corrections
(ODOC). In this case, we deny defendant’s motion to dismiss
the appeal. However, we grant defendant leave to file a new
dismissal motion, if he desires, so that he may address the
matters discussed in this opinion.
To provide context for our discussion of the perti-
nent principles, we review what happened in this appeal
before defendant filed his dismissal motion. Defendant was
charged with three counts of first-degree sexual abuse and
two counts of second-degree unlawful sexual penetration.
State v. Lasheski, 309 Or App 140, 144, 481 P3d 966 (2021).
The state dismissed one of the unlawful sexual penetra-
tion charges after it rested its case, and the jury convicted
defendant of the three counts of sexual abuse and acquitted
him of the remaining count of unlawful sexual penetration.
Id. at 144. At sentencing, the trial court imposed a 75-month
term of incarceration on each of the three counts of sexual
abuse and ordered those terms to run concurrently. Id. at
142.
Defendant appealed, ultimately raising four assign-
ments of error. Id. First, defendant challenged the admission
appeal, but globally, will weigh in favor of granting the motion to dismiss.” 308 Or
App at 728. However, neither Moore nor this case involves a settlement.
Another similarity between this case and Moore is that the appellant has not
asked in either case that we vacate our published opinion. See Moore, 308 Or App
at 728 n 1 (noting that vacatur is considered an “extraordinary remedy”).
Cite as 312 Or App 714 (2021) 717
of certain uncharged-misconduct evidence at trial. Id.Defendant asserted that, if he prevailed on that argument,
we should reverse his convictions and remand for a new
trial.
Second, defendant challenged the trial court’s
refusal to merge the three counts of sexual abuse into a sin-
gle conviction. Id. If he prevailed on that argument, defen-
dant asserted, we should “vacate [his] sentence and remand
for resentencing.”
Third, defendant argued that the 75-month prison
term—a sentencing term required by ORS 137.700—was
unconstitutionally disproportionate. Again, defendant argued
that, if we agreed, we should vacate the sentence and
remand for resentencing.
Fourth, in supplemental briefing, defendant argued
that we should reverse his convictions “because the trial
court instructed the jury that ten guilty votes would be
sufficient to support a guilty verdict,” although he acknowl-
edged that the verdicts in his case were all unanimous.
Id. at 142.
In resolving defendant’s appeal, we started by
addressing his first and fourth arguments because he would
get the most “complete relief” if he prevailed on either of
them, that is, reversal of his convictions and remand for
new trial (instead of merely remand for resentencing). We
rejected the evidentiary argument without discussion and
summarily rejected the supplemental assignment of error
based on a recent Oregon Supreme Court decision. Id.
We then turned to the merger argument, which
was the main focus of the written opinion, explaining
why we agreed with defendant that the trial court erred
when it refused to merge the three counts of sexual abuse.
Accordingly, we granted the relief that defendant had
sought: reversal of the three sexual abuse convictions and
remand for resentencing, to include entry of a judgment of
conviction on a single count of first-degree sexual abuse.
Id. at 150. Because we had already determined that a
remand for resentencing was necessary, we did not reach
718 State v. Lasheski
defendant’s argument that the 75-month sentence imposed
by the trial court was unconstitutionally disproportionate.
Id. at 142.
Our decision in Lasheski issued on February 3, 2021,
approximately two and one-half years after defendant had
filed his appellate brief (which raised the merger argument,
with the associated request for a remand for resentencing)
and eight months after he had filed his supplemental brief.
Several weeks after Lasheski issued, defendant moved to
dismiss his appeal, providing the following explanation of
why he wanted dismissal and, relatedly, to avoid a remand
for resentencing:
“This court’s decision will have a practical effect of reduc-
ing defendant’s criminal history score from gridblock A to
gridblock D. Notwithstanding that benefit, after consult-
ing with appellate counsel, defendant has requested that
counsel move to dismiss his appeal. Defendant explains the
reasons for his request as follows: ‘(1) [Resentencing] will
change nothing other than my criminal classification, at
63 years old when I am due to get out I won’t have much
of a work history future to worry about; (2) I have no plans
to have future contact with the law; (3) there is no reason
to spend any more time or resources on my case since it
will not change the final result.’ Defendant also stated
that he is employed full time at Deer Ridge Correctional
Institution, and he feels comfortable and safe where he is
presently housed. Defendant’s continued employment and
his placement within the Department of Corrections would
most likely be lost upon transfer back to Deschutes County
Jail.”
As noted, the state does not oppose the dismissal motion,
but it has not filed a response explaining that position.
We begin our analysis by adding to Moore’s expla-
nation of why such post-opinion dismissal motions are disfa-
vored, even when unopposed.
First, it is important to understand what happens
when we grant a post-opinion dismissal motion by the appel-
lant. The effect on the appellant is return to a pre-appeal
posture; from the appellant’s perspective (at least, the appel-
lant’s legal perspective), it is just as though no appeal had
Cite as 312 Or App 714 (2021) 719
been taken. The trial court judgment stands, as though no
notice of appeal had ever been filed. Yet our published opin-
ion 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.
That dual effect has important systemic implications.
If we routinely granted post-opinion dismissal motions, it
could encourage appellants to seek our resolution of open
legal questions via published opinions—even though the
appellants anticipate subsequently seeking post-opinion dis-
missal, meaning that they would not actually be affected by
those judicial decisions. Put bluntly, clever litigants might
utilize post-opinion dismissals to obtain what would, essen-
tially, be advisory opinions from this court.
Second, and relatedly, routine post-opinion dismissal
could inappropriately influence the decisions that an appel-
lant makes during the early stages of the appellate process.
The appellant must choose what issues to raise on appeal by
assigning error to specific trial court rulings. Sometimes,
the legal consequences of prevailing on an issue will clearly
benefit the appellant, and little risk is involved in raising
that issue. Sometimes, however, assigning error to a par-
ticular trial court ruling involves a significant risk because
the legal consequences of winning may ultimately not ben-
efit the appellant. For example, a defendant-appellant who
assigns error to a sentencing ruling sometimes runs the risk
that a remand for resentencing might result in “the imposi-
tion of a harsher sentence on remand following [the] appeal
than that which was originally imposed.” State v. Worth, 300
Or App 138, 140, 452 P3d 1041 (2019), rev den, 366 Or 451(2020).
The time for appellants to assess whether such risks
are worth taking—to perform the necessary cost-benefit
analyses—is before they file their appellate briefs, prefer-
ably with able assistance of counsel. And, if an appellant
has belated regrets about including a particular assign-
ment of error in the opening brief (perhaps after review-
ing the response brief, or after further contemplating the
720 State v. Lasheski
implications of having made the argument), the appellant
can withdraw that assignment from our consideration before
we decide the case. Appellants should make those types of
decisions as early as possible in the appellate process, not
months or years later, after having prevailed in a published
opinion and then deciding that, after all, winning was not
worth it. If we routinely allowed appellants to redo the cost-
benefit analysis after opinions issued, it could inappropri-
ately lead appellants to take greater risks on appeal, believ-
ing that, if the result was not to their liking, they could avoid
it through a post-opinion dismissal motion.
Third, dismissing an appeal after an opinion has
issued can devalue the investments that the parties’ lawyers
and the court system have put into resolving the questions
that the appellant has raised. As in this case, raising a par-
ticular issue—here, the merger question—requires lawyers
to expend significant resources in briefing the issue and the
appellate court to expend significant resources in resolving
it. Again, if an appellant does not want this court to rule on
the correctness of a particular trial court ruling, the appel-
lant should either not assign error to that ruling, or should
withdraw the associated assignment of error from the court’s
consideration before everybody involved has spent time and
effort addressing it.3
In the end, an appellant who requests post-opinion
dismissal is saying, “Never mind.” Never mind the effort
that the parties and their lawyers put into briefing the
issues on appeal. Never mind the costs to the court system
involved in addressing those issues in a published decision.
Never mind the associated and ultimately unnecessary
delay in resolving the appeal, which may affect not only
the parties, but also other individuals, like the victims of a
defendant-appellant’s crimes. Never mind that, if an appel-
lant decides at some point that it is no longer worth pursuing
3
We understand that post-opinion dismissal may result in some cost sav-
ings to the parties, the court, and other involved institutions and individuals.
For example, a post-opinion dismissal in an appeal that resulted in remand for
resentencing allows all involved to avoid the costs associated with resentencing
the defendant. In our view, however, those cost savings are outweighed by the
case-specific and systemic costs that would result if we routinely granted post-
opinion dismissal motions.
Cite as 312 Or App 714 (2021) 721
a particular argument, the appellant can easily withdraw
that issue from the court’s consideration before an opinion
issues. Never mind the systemic implications of creating
a system that would allow parties to request resolution of
legal disputes by way of decisions that they do not actually
intend to be affected by. But we do mind, and that is why we
disfavor post-opinion dismissal motions, even when they are
unopposed.
And yet. There are some cases in which the appellant
presents compelling practical reasons for no longer want-
ing the relief that follows from having prevailed on appeal.
Here, defendant explains that he will obtain no meaning-
ful benefit from merger and resentencing, as the result will
be little more than reduction of his criminal-history score
(and he asserts no intention of having “future contact with
the law” after he is released from prison in his early 60s)
and almost certain imposition of the same 75-month term of
incarceration on remand as he received initially. Defendant
also avers that, if he is resentenced, he likely will lose his
current employment and institutional placement within
ODOC custody. Such practical considerations may be crit-
ically important to an appellant, and those considerations
may not be as readily anticipated or understood at the out-
set of an appeal as they are once an opinion has issued.
Taking all of that into account, as well as the fac-
tors laid out in Moore, we conclude that we should consider
at least the following case-specific matters when we exercise
our discretion in ruling on future post-opinion dismissal
motions, which remain generally disfavored for the institu-
tional and systemic reasons discussed above:
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
appellant to escape possible adverse legal conse-
quences of prevailing on an issue or issues that the
appellant chose to raise on appeal.
3. If so, whether those legal consequences were, or
reasonably could have been, anticipated when the
722 State v. Lasheski
appellant filed the opening brief or at any subse-
quent point before the court’s opinion issued.
4. Whether the appellant’s decision to raise a particu-
lar issue on appeal was influenced by the possibil-
ity of subsequently 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
pursuing settlement.
6. Whether the appellant has established compelling
reasons for wishing to dismiss the appeal, partic-
ularly those associated with any practical conse-
quences of the relief granted by the appellate court.
7. The extent to which the appellant’s expressed prac-
tical reasons for wishing to dismiss the appeal rea-
sonably could have been anticipated and appreci-
ated when the appellant filed the opening brief or
at any subsequent point before the court’s opinion
issued.
We emphasize that we expect appellants seek-
ing post-opinion dismissal to do just what the sixth point
requires: to establish compelling reasons for dismissal.
In this case and some others filed to date, the appellants’
post-opinion dismissal motions have included only unsworn
averments that the relief that the appellant has obtained
on appeal will cause certain adverse practical consequences
for the appellant (such as a claimed loss of employment, pro-
gramming, or institutional placement within the ODOC sys-
tem when a case is remanded for resentencing). Given the
significant systemic implications of granting post-opinion
dismissal motions, we expect more. In future cases, we
are unlikely to grant such motions absent a more complete
explanation of any claimed adverse practical consequences
of the court’s decision, supported when feasible by citation
to legal authority, creation of an evidentiary record, or per-
haps a jointly agreed statement of facts. And, whether or
not a respondent opposes a post-opinion dismissal motion,
we would benefit from an explanation of that position that
Cite as 312 Or App 714 (2021) 723
takes into account both any case-specific and any systemic
considerations. To the extent that ODOC’s interests may be
implicated by such motions when they are filed in criminal
or post-conviction appeals, we would welcome input from
that institution as well.
In this case, as noted above, defendant’s dismissal
motion is supported only by unsworn and generalized asser-
tions about the possible effects of a remand for merger and
resentencing. Those assertions, which are unsupported by
any evidence or citation to legal authority, do not present
a sufficient justification for overriding the presumption
against post-opinion dismissal. Accordingly, we deny the
motion as currently presented. However, because defendant
did not have the benefit of this decision when he filed his
dismissal motion, we grant him leave to file a new dismissal
motion (if he wishes to do so) addressing the matters set
forth in this opinion.
Motion to dismiss appeal denied with leave to file a
new motion to dismiss within 14 days of publication of this
opinion.