State v. Nix
| Decision Date | 05 March 2015 |
| Docket Number | CC CRH090155,SC S060875.,CA A145386 |
| Citation | 345 P.3d 416,356 Or. 768 |
| Parties | STATE of Oregon, Respondent on Review, v. Arnold Weldon NIX, Petitioner on Review. |
| Court | Oregon Supreme Court |
Jamie K. Contreras, Assistant Attorney General, Salem, filed the motion for respondent on review. With her on the motion was Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
David J. Celuch, Portland, filed the motions for petitioner on review.
Erin J. Snyder, Deputy Public Defender, Salem, filed the brief for amicus curiae Office of Public Defense Services. With her on the brief was Peter Gartlan, Chief Defender.
Before BALMER, Chief Justice, and KISTLER, WALTERS, LINDER, LANDAU, and BALDWIN, Justices.**
In this misdemeanor criminal case, the state appealed a judgment of conviction, challenging the lawfulness of the sentence. The Court of Appeals reversed and remanded for resentencing. State v. Nix, 251 Or.App. 449, 283 P.3d 442 (2012). We affirmed the decision of the Court of Appeals. State v. Nix, 355 Or. 777, 334 P.3d 437 (2014). Shortly after our opinion was published, however, the state filed a motion to stay the issuance of the appellate judgment and a motion to determine jurisdiction; the state noted that, although it had prevailed on its appeal, it perhaps had lacked authority to file an appeal in the first place, because no statute authorizes it to appeal a judgment of conviction for a misdemeanor. Defendant responded by moving to vacate both opinions and dismiss the appeal.
For the reasons that follow, defendant's motions are well taken. We commend the state for bringing the matter to our attention. But we conclude that it lacked authority to appeal the judgment of conviction in this misdemeanor case. Both the Court of Appeals and this court lacked subject matter jurisdiction over the appeal. As a result, we vacate both opinions and dismiss the appeal.
The relevant facts are few and undisputed. Defendant was found guilty of 20 counts of second-degree animal neglect, a misdemeanor. ORS 167.325(2) (2009).1 The state asked the trial court to impose sentence on 20 separate convictions. Defendant objected, arguing that violations “merge” into a single conviction under Oregon's anti-merger statute, ORS 161.067, when there are multiple violations of a single statute and only one victim. In this case, defendant argued, animals are not “victims” within the meaning of that statute, so the trial court should impose a sentence on a single, merged, conviction. The trial court agreed and did just that.
The state appealed, arguing that the trial court had erred in accepting defendant's contention that animals cannot be “victims” within the meaning of the anti-merger statute. In its notice of appeal, it cited ORS 138.060(1)(e) as the basis for appellate jurisdiction. That provision authorizes the state to appeal a “judgment of conviction based on the sentence as provided in ORS 138.222.” The state apparently relied on a subsection of the cross-referenced statute, ORS 138.222(4), that authorizes an appellate court to review a claim that “[t]he sentencing court failed to comply with the requirements of law in imposing or failing to impose a sentence.”
Defendant did not contest the jurisdiction of the Court of Appeals to hear the state's appeal of his misdemeanor conviction. That court proceeded to review the state's appeal on the merits and, as we have noted, agreed with the state and reversed and remanded for resentencing. Defendant then sought review in this court, which we allowed, ultimately affirming the decision of the Court of Appeals.
Approximately two weeks later, the state moved the court to stay the issuance of the appellate judgment and entertain a motion to determine jurisdiction. The state asserted that it had come to its attention that, although ORS 138.222(4) —at least on the surface—appeared to permit an appeal on a claim that the trial court had erred in imposing a sentence in any case, closer inspection of the statute suggests that it actually applies only to appeals in felony cases. We granted the motion to stay issuance of the appellate judgment and solicited from the parties further briefing on the jurisdictional issue that the state raised. We also solicited a brief amicus curiae from the Office of Public Defense Services.
In response, the state acknowledged that, on further reflection, it “lacked a statutory basis to file a notice of appeal in this case,” because no statute authorizes the state to appeal a judgment of conviction for a misdemeanor. The state argued that this court nevertheless had jurisdiction, “because it could have heard the case in mandamus.”
Defendant argued that, because the state lacked authority to appeal a judgment of conviction for a misdemeanor, the appellate courts lacked jurisdiction, and this court should vacate the opinions of both appellate courts and dismiss the appeal. OPDS, in an excellent and helpful amicus brief, likewise argued that the state lacked the statutory authority to appeal and that we should vacate both opinions and dismiss the appeal.
The state rejoined that, even if this court lacked jurisdiction over the appeal, defendant has failed to establish that he is entitled to the “extraordinary remedy” of vacatur. The state argued that we should deny the motions to vacate and dismiss the appeal.
Thus framed, the parties' arguments present a sequence of three potential questions for us to answer: (1) Did the state have statutory authority to appeal the judgment of conviction for a misdemeanor? (2) If not, does this court nevertheless have jurisdiction over the case because the state could have filed a petition for a writ of mandamus? And (3), if not, should we vacate the opinions and dismiss the appeal? We address each question in turn.
There is no inherent right to an appeal. State v. McAnulty, 356 Or. 432, 438, 338 P.3d 653 (2014). Instead, the right to appeal must be statutorily authorized. Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). The statute authorizing an appeal may include limitations on the issues that may be reviewed in an appeal. Logsdon v. State and Dell, 234 Or. 66, 70, 380 P.2d 111 (1963). In that regard, it is worth emphasizing that, although the terms are sometimes inadvertently used interchangeably,2 “appealability” and “reviewability” are not the same. State v. Montgomery, 294 Or. 417, 420, 657 P.2d 668 (1983). “Appealability” generally concerns whether an appeal may be taken at all. Id. “Reviewability” concerns what type of decisions and rulings the appellate court may consider in a case that is appealable. Id.
An appellate court lacks subject matter jurisdiction over an appeal from a judgment that is not appealable. Young v. Hill, 347 Or. 165, 170, 218 P.3d 125 (2009). Thus, because the issues before us implicate our jurisdiction, we have an independent duty to determine whether the state's appeal was statutorily authorized, regardless of the state's concession that it was not. State v. Shaw, 338 Or. 586, 599, 113 P.3d 898 (2005). Likewise, we have an obligation to acknowledge the existence of jurisdiction if our review reveals it. State v. Ainsworth, 346 Or. 524, 538 n. 16, 213 P.3d 1225 (2009).
As we have noted, the state cited ORS 138.060(1)(e) as authorizing its appeal. That statute provides that “[t]he state may take an appeal from the circuit court * * * to the Court of Appeals from * * * [a] judgment of conviction based on the sentence as provided in ORS 138.222.” ORS 138.222, which generally concerns appeal and review of felony convictions, includes a subsection, ORS 138.222(4)(a), that provides, “[i ]n any appeal, the appellate court may review a claim that * * * [t]he sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence.” (Emphasis added.)3 The question before us is whether those two statutes, in conjunction, confer authority on the state to appeal a judgment of conviction for a misdemeanor to challenge the lawfulness of the sentence imposed.
On the bare text of the statutes, the answer appears doubtful. ORS 138.060(1)(e) does authorize the state to appeal, “as provided in ORS 138.222.” Yet that cross-referenced statute pertains to appeals of felony convictions only. It is true that ORS 138.222(4) refers to an appeal “in any case,” without limiting its effect to felonies. But that subsection does not authorize the state to appeal anything; rather, it refers to the issues that may be reviewed in a case that is otherwise appealable. Moreover, a careful examination of the history and context of the statute as a whole makes clear that the statute does not confer authority to appeal a judgment of conviction in a misdemeanor case.
Historically, the authority of the state to appeal in criminal cases was narrowly circumscribed. The Deady Code of 1864 authorized the state to appeal in only two circumstances, namely, after a trial court issued a judgment on a demurrer to the indictment and after a court issued an order arresting judgment. See generally State v. Robertson, 293 Or. 402, 404–05, 649 P.2d 569 (1982) (). Beginning in 1963, the legislature gradually added to the list of trial court orders that the state may appeal.See generally State v. Carrillo, 311 Or. 61, 66–67, 804 P.2d 1161 (1991) (). By 1989, the state was authorized to appeal from four types of orders:
In 1989, the legislature enacted legislation essentially...
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