State v. Hewitt

• Decision Date: 21 July 1999
• Citation: 162 Or. App. 47,985 P.2d 884
• Parties: STATE of Oregon, Appellant, v. William George HEWITT, Respondent.
• Court: Oregon Court of Appeals

985 P.2d 884

162 Or. App. 47

STATE of Oregon, Appellant, v. William George HEWITT, Respondent.

(970562C; CA A99438).

Court of Appeals of Oregon.

Argued and Submitted January 21, 1999.

Decided July 21, 1999.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robert J. McCrea, Eugene, argued the cause for respondent. With him on the brief was McCrea, P.C.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

LINDER, J.

The state appeals a pretrial order dismissing with prejudice a complaint against defendant for driving under the influence of intoxicants. ORS 813.010. We reverse and remand.

Before trial, defendant sought to waive his right to jury trial and to be tried by the court. The state objected and demanded a jury trial, pursuant to ORS 136.001(1). The trial court denied the state's jury trial demand, concluding that ORS 136.001(1) is unconstitutional. The state then sought a continuance so that it could seek review of the trial court's ruling. The trial court denied that postponement, at which point the state declared that it was not prepared to proceed without first seeking review. When the state would not proceed, the trial court dismissed the charge with prejudice.

On appeal, the state first assigns error to the trial court's denial of the state's demand for a jury trial. The parties disagree whether the order dismissing the charge encompasses the underlying jury trial ruling sufficiently to be within our scope of review on appeal. Compare State v. Caruso, 289 Or. 315, 613 P.2d 752 (1980)

(on appeal of order dismissing charge, court generally may not review correctness of other preceding or intermediate orders) with State v. Martinez, 97 Or.App. 170, 776 P.2d 3 (1989) (on appeal of order dismissing charge, court may review ruling that informant's identity must be disclosed because that ruling encompasses a determination that is a predicate to the dismissal). We do not resolve that disagreement, however, because after the parties briefed and argued this case, the Supreme Court held that ORS 136.001(1), which gives the state a right to demand a jury trial, is unconstitutional. State v. Baker, 328 Or. 355, 976 P.2d 1132 (1999). The reviewability of the underlying jury trial ruling therefore is moot.

The question remains whether the trial court abused its discretion in dismissing the case after the state declared that it was not prepared to proceed, which is the issue raised by the state's second assignment of error.¹ The trial court's order was entered pursuant to ORS 136.120, which provides:

"If, when the case is called for trial, the defendant appears for trial and the district attorney is not ready and does not show any sufficient cause for postponing the trial, the court shall order the accusatory instrument to be dismissed, unless, being of the opinion that the public interests require the accusatory instrument to be retained for trial, the court directs it to be retained."

The trial court dismissed with prejudice.

The state argues that the trial court abused its discretion because the prosecutor showed sufficient cause for postponement on the ground that the state wanted to seek review of the trial court's denial of its request for a jury trial "through mandamus." Defendant, in response, contends that the state's argument is not preserved because the state did not refer below to filing a "mandamus," but instead declared only that it wanted to "appeal" the trial court's ruling. Beyond asserting that the state has changed its argument on appeal, defendant does not defend the trial court's ruling.

Defendant is correct that the state, in requesting a continuance and in declaring that it was not prepared to proceed to trial, referred to appealing the trial court's ruling on its entitlement to jury trial. Defendant is also correct that the state had to seek appellate review of the court's ruling through mandamus and had no ability to do so through the filing of a notice of appeal.² But, in relying on the prosecutor's choice of terms, defendant makes too much of words in this instance.

To be sure, the term "appeal" can assume a narrow technical meaning, describing a right of appellate review exercised by the filing of a notice of appeal. See, e.g., ORS 19.240. But the term also broadly and more generally describes any legal proceeding by which a decision of a lower court or other adjudicative body is brought to a higher court for review.³ A variety of procedural mechanisms lead to review of lower tribunal decisions by higher appellate courts. Many are not "appeals" in the most narrow sense of the word. An obvious example is an "appeal" to the Oregon Supreme Court following a decision of this court. Although often termed an "appeal," a case in fact proceeds from this court to the Oregon Supreme Court by way of a discretionary "petition for review." Similarly, most administrative decisions are not brought to this court for review through notices of appeal but are pursued instead on petitions for review. Numerous other examples abound—e.g., automatic review of death penalty cases; original review of administrative rules; special statutory review proceedings, such as energy facility and prison siting decisions; ballot title review; and review through a variety of special writs. It is both commonplace and, in a general way, correct to refer to all of those review mechanisms as "appeals," despite the fact that they are not initiated by a notice of appeal.

Nor is defendant's parsing of the prosecutor's terminology defensible on this particular record. At a minimum, to sustain the trial court's exercise of discretion based on the distinction between the most narrow meaning of "appeal" and review by way of mandamus, that distinction ought to have been the basis on which the trial court in fact exercised its discretion. It was not. Defendant did not argue below, as he now does, that the court should deny the postponement because the state wanted to "appeal" the court's ruling rather than seek review by mandamus. The trial court in no way suggested that it was denying the postponement on that ground—i.e., that the state desired to pursue an "appeal" and was not entitled to do so. Rather, in requesting the postponement so that it could appeal the ruling, the state urged the importance of the jury trial right at stake, the defense voiced concern about inconveniencing two of its witnesses, and the trial court summarily denied the state's motion and dismissed the case with prejudice. The only conclusion reasonably to be drawn on this record is that the trial court simply was unwilling to provide the state with an opportunity to obtain an appellate court ruling on the issue, not that it rejected a postponement because the state articulated the wrong remedy.

The issue thus reduces to whether the trial court properly dismissed the case with prejudice when the state declined to proceed to trial because it wanted to seek review of the trial court's ruling that the statute granting the state a right to jury trial is unconstitutional. Our review of that decision is for abuse of discretion. State v. Gunder, 154 Or.App. 332, 334, 964 P.2d 265 (1998). That standard of review generally is very deferential to a trial court's exercise of judgment. See Carter v. Moberly, 263 Or. 193, 201, 501 P.2d 1276 (1972)

(abuse of discretion standard tests only whether the trial court made a decision within the permissible range of choices, not whether the particular choice is the one the appellate court would make). But discretion rarely, if ever, is absolute. Gunder, 154 Or.App. at 338,

964 P.2d 265. In the context of a dismissal with prejudice, a trial court's discretion is circumscribed by the recognition that "[t]he power to bar prosecution, with all its attendant public consequences, is a drastic one to be exercised only in exceptional circumstances." State v. Williams, 17 Or.App. 43, 48, 520 P.2d 462 (1974). In reviewing the trial court's refusal to grant a postponement and its decision to dismiss the case, we consider the reasons for seeking the postponement and the magnitude of the interests at stake. See, e.g., State v. Hickey, 79 Or.App. 200, 202-03, 717 P.2d 1287 (1986) (abuse of discretion to deny defendant a continuance where effect of doing so was to deprive defendant of right to counsel). We also consider whether the dismissal conforms with the spirit of the statute and its goal of serving the public interest. See generally Coleman v. Meyer, 261 Or. 129, 134, 493 P.2d 48 (1972) (trial court discretion to decide whether to set aside a judgment should be exercised to serve the spirit of the statute, achieve substantial justice, and effectuate a party's day in court).

Three considerations lead us to hold that, in this instance, the trial court abused its discretion by not postponing the trial and by instead dismissing the charge with prejudice. First, the nature of the interest that the state was asserting was a particularly weighty one. The state's entitlement to a jury trial was, first and foremost, ostensibly secured at the time both by statute and by the Oregon Constitution.⁴ Moreover, it was of an inherently significant nature: Few trial procedures, whether granted by statute or due by constitutional imperative, are more deeply valued and jealously guarded than trial by jury.

Second, the issue was one of statewide importance. The jury trial entitlement that the state was asserting attached in all criminal prosecutions. Resolution of the state's ability to insist on a jury trial had implications for all other criminal cases that would be tried before that same trial court. Furthermore, resolution of the issue by an appellate court—and, in this case, by the Oregon Supreme Court—would affect all criminal prosecutions throughout the state.

Third, interlocutory...