S055396, Opinion — State v. Robbins

28
Argued and submitted May 13, order of Court of Appeals reversed, and case
remanded to Court of Appeals for further proceedings ,July 3, 2008
STATE OF OREGON,
Respondent on Review,
v.
JENNIFER LYNN ROBBINS,
Petitioner on Review.
(CC 050545301; CA Al30659; SC S055396)
188 P3d 262
CJS, Criminal Law § 1698.

Cite as 345 Or 28 (2008) 	29
En Banc
On review from the Court of Appeals.*
Kristin A. 	Carveth, 	Deputy Public Defender, 	Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Susan 	G. 	Howe, 	Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
BALMER,J.
The order of the Court of Appeals is reversed, and the case
is remanded to the Court of Appeals for further proceedings.
* Appeal from Multnomah County Circuit Court, Marshall L. Amiton,
Judge. Order of Dismissal dated June 25, 2007; Order on Reconsideration dated
September 26, 2007.

30 	State v. Robbins
BALMER,J.
In this case, the Court of Appeals dismissed an
appeal 	from 	a 	criminal 	conviction 	because 	defendant,
Jennifer Lynn Robbins, had missed a single appointment
with her probation officer while her appeal was pending. We
conclude that the Court of Appeals erred in its interpretation
of the rule of appellate procedure upon which it relied in dis-
missing defendant's appeal, and we reverse the order of
dismissal.
Defendant was charged with one count of possession
of a controlled substance. Defendant moved to suppress cer-
tain evidence, but the trial court denied the motion. Defen-
dant then was convicted in a stipulated facts trial. On
November 15, 2005, the trial court entered a judgment of con-
viction and sentence, sentencing defendant to (among other
things) 13 months' probation. Defendant appealed.
In August 2006, the trial court held a show cause
hearing to determine whether defendant had violated the
terms of her probation. The court concluded that she had,
because she admitted that she had used drugs. 1 Because of
the probation violation, the trial court extended her proba-
tion until August 2007 and (among other things) ordered
"strict compliance" with the other conditions of probation.
Defendant had an appointment to meet her probation officer
on September 12, 2006. She missed the appointment. Four
days later, on September 16, 2006, defendant was arrested
for possession ofmethamphetamine.
On September 28, 2006, the trial court entered an
order and judgment revoking defendant's probation. That
judgment was based, in part, on defendant's stipulation that
she had failed to report to her probation officer as required-
specifically, that she had failed to appear for the September
12, 2006, appointment. The judgment also was based on
defendant's 	stipulation that she had failed 	to 	complete
required treatment and had failed to make required financial
1 The state had alleged that defendant had violated her probation in other
ways-in particular, by failing to report to her probation officer-but the trial court
made no findings on those allegations.

Cite as 345 Or 28 (2008) 	31
payments. The trial court sentenced defendant to 90 days in
jail. She served that sentence in 2006.
Over six months later, in May 2007, the state moved
to dismiss defendant's pending appeal of her criminal convic-
tion. The state relied on ORAP 8.05(3), which provides, in
part:
"If a defendant in a criminal case * * *, on appeal of an
adverse decision, escapes or absconds from custody or
supervision, the respondent on appeal may move for dis-
missal of the appeal. If the appellant has not surrendered at
the time the motion is decided by the court, the court may
dismiss the appeal***."
The state's motion was based primarily on defendant's
admission that she had failed to report to her probation offi-
cer on September 12, 2006, although the state noted other
ways in which defendant allegedly had failed to comply with
the terms of her probation. The state contended that defen-
dant had "absconded" from the supervision of her probation
officer.
Defendant opposed the motion to dismiss, arguing
that the only plausible basis for dismissal was the missed
appointment on September 12, 2006, and that the other alle-
gations of probation violations were irrelevant to the state's
claim that she had absconded from supervision. As to the
appointment, she argued that "absconds" in ORAP 8.05(3)
means a conscious effort to avoid custody or supervision and
that missing a single appointment does not show such a con-
scious effort. Defendant's counsel submitted an affidavit stat-
ing that defendant had missed the appointment due to illness
and that defendant had left messages to that effect with her
probation officer.
The Court of Appeals granted the state's motion and
entered an order of dismissal. It concluded that defendant
had absconded "because she failed to meet with her probation
officer as directed, and failed to keep her probation officer
apprised of her whereabouts." Defendant petitioned the
Court 	of Appeals 	to 	reconsider 	that 	order. 	Defendant
renewed her contention that missing a single appointment
did not show a conscious effort to avoid custody or supervi-
sion. She also argued that the Court of Appeals had erred in

32 	State v. Robbins
concluding that she had failed to keep her probation officer
apprised of her whereabouts and that, even if she had vio-
lated her probation in that way, that failure would not sup-
port the state's claim that she had absconded. Finally, defen-
dant argued that, even if she had absconded within the
meaning of the rule, she subsequently had "surrendered,"
thereby precluding dismissal of her appeal more than six
months later.
The Court of Appeals granted the petition to recon-
sider and modified its prior order, but it reaffirmed the deci-
sion to dismiss. The court vacated that part of the prior order
that relied on defendant's failure to keep her probation officer
apprised of her whereabouts. However, the court concluded
that the failure to meet with a probation officer, standing
alone, constituted a conscious effort to avoid custody or
supervision and therefore justified dismissal of the appeal.
The court also held that defendant's arrest on unrelated
charges four days after she had missed her appointment did
not amount to a "surrender" under ORAP 8.05(3), and thus
did not provide a basis for her to argue that she had surren-
dered before the court had decided the dismissal motion.
Defendant filed the present petition for review, which we
allowed.
On review, defendant renews her arguments that
missing a single appointment with a probation officer does
not justify dismissal of an appeal under ORAP 8.05(3) and
that her arrest counts as having "surrendered" under the
rule. More broadly, defendant argues that, if the rule does
reach her conduct, then it exceeds both the inherent power of
the appellate courts to control proceedings before them and
their statutory authority to "make and enforce all rules nec-
essary for the prompt and orderly dispatch of the business of
the court." See ORS 2.120 (so providing regarding Supreme
Court); ORS 2.560(2) (identical text used to describe rule-
making power of Court of Appeals).
The state contends that defendant did "abscond"
when she failed to meet the conditions of her probation-par-
ticularly the requirement that she attend scheduled appoint-
ments with her parole officer-and that her arrest did not
constitute a "surrender" under ORAP 8.05(3). The state also

Cite as 345 Or 28 (2008) 	33
argues generally that the rule's failure to define the terms
"absconds" and "surrendered" reveals an intent to give the
Court of Appeals "broad discretion" regarding the enforce-
ment of the rule.
We begin with the text of the rule itself, part of which
we quoted above. ORAP 8.05(3) provides:
"If a defendant in a criminal case, a petitioner in a post-
conviction relief proceeding, a plaintiff in a habeas corpus
proceeding, a petitioner in a parole review proceeding, or a
petitioner in a prison disciplinary case, on appeal of an
adverse decision, escapes or absconds from custody or
supervision, the respondent on appeal may move for dis-
missal of the appeal. If the appellant has not surrendered at
the time the motion is decided by the court, the court may
dismiss the appeal or judicial review. If the court has not
been advised otherwise, the court may assume that the
appellant has not surrendered when the court considers
and decides the motion."
The issue is whether defendant "abscond[ed] from
* * * supervision." 2 Neither the Oregon Rules of Appellate
Procedure 	nor 	the 	Oregon 	statutes 	define 	the 	word
"abscond," so we turn to other sources. The dictionary defines
"abscond" as:
"to depart secretly: withdraw and hide oneself***; specif:
to evade the legal process of a court by hiding within or
secretly leaving its jurisdiction."
Webster's Third New Int'l Dictionary 6 (unabridged ed 2002).
Black's Law Dictionary (8th ed 2004) offers a similar defini-
tion: "To depart secretly or suddenly, esp. to avoid arrest,
prosecution, or service of process." Id. at 7. The words used to
define "abscond" all refer to some kind of conduct that a per-
son engages in with a particular intent-"depart secretly,"
"withdraw * * * oneself," "hide oneself," "evade," "avoid." For
a person to "abscond," then, it is not sufficient that the person
simply engage in some course of action (or inaction); the per-
son must do so with the conscious intent to hide from or
otherwise evade legal process.
2 The state does not contend that defendant "escape[d] * * * from custody or
supervision."

34 	State v. Robbins
That conclusion is consistent with the related word
used in ORAP 8.05(3), "escape." That term means:
"to get away (as by flight or conscious effort): break away,
get free, or get clear <the prisoner escaped from prison>."
Webster's at 774. See also Black's Law Dictionary 583 (defin-
ing "escape" as: "[t]he act or an instance of breaking free from
confinement, restraint, or an obligation"). As with "abscond,"
the word "escape" (in this context) combines the act of move-
ment from one place to another with the intent to "get away"
or "break free." As an initial proposition, we conclude that
"abscond" requires a showing of some kind of conscious intent
to evade or avoid legal process.
That conclusion is consistent with the context in
which earlier cases discussed the dismissal of a criminal
defendant's appeal when the defendant has fled the jurisdic-
tion. The Oregon Rules of Appellate Procedure have author-
ized appellate courts to dismiss the appeals of escaped or
absconded appellants only since 1994. See Chief Justice
Order No. 93-091 (dated Oct 20, 1993) (adopting amend-
ments to Oregon Rules of Appellate Procedure-including a
predecessor of the rule at issue here-effective January 1,
1994). This court, however, recognized the court's inherent
authority to dismiss such appeals much earlier than that. In
City of Portland v. Parchen, 113 Or 209, 231P980 (1925), the
defendant had been arrested for violating a city ordinance.
After the defendant had appealed to this court, the trial court
entered an order requiring him either to appear in person or
to perfect his appeal by securing a bond. But the defendant
never appeared, did not secure a bond, and was "a fugitive
from justice." Id. at 210. This court described the "substantial
and just rule that courts will not hear an appeal while the
appellant is fleeing from justice." Id. In that case, however,
the court dismissed the appeal for a different reason, conclud-
ing that it lacked jurisdiction to consider an appeal from a
conviction for violating a city ordinance. Id. at 210-11.
The court next considered the rule in State v. Broom,
121 Or 202, 253 P 1044 (1927). In that case, the defendant,
following his conviction, had posted a bail bond pending
appeal. He later failed to surrender himself to custody,
because he was in jail in a different county for another

Cite as 345 Or 28 (2008) 	35
offense. Before completing that other jail sentence, defendant
escaped. This court characterized the defendant as a "fugitive
from justice," id. at 206, a term that it defined as meaning
"[a] person who commits a crime within a state and with-
draws himself from such jurisdiction, without waiting to
abide the consequences of such act[.]" Id. at 205 (internal
quotation marks omitted). The court then reviewed in detail
cases from other jurisdictions regarding the discretion to dis-
miss the appeal of an escaped defendant. Id. at 206-08. The
defendant's posting of a bail bond did not affect the applica-
bility of that rule, the court held, because bail constituted
constructive custody over the defendant. Id. at 208-09. This
court stated:
"[W]e 	are 	unqualifiedly 	committed 	to 	the 	doctrine
announced by the highest authorities and the most eminent
criminal law-writers of America, that, when it satisfactorily
appears to the appellate court that a convicted criminal has
fled from the jurisdiction of the court, it is within the power
of that court to refuse to hear his appeal."
Id. at 210. 8
Most recently, this court dismissed a petition for
review in State v. Smith, 312 Or 561, 822 P2d 1193 (1992). In
that case, the defendant was on probation. The defendant
allegedly had "fail[ed] to remain under the supervision and
control of the Probation Department" and "fail[ed] to truth-
fully report monthly at times and in a manner specified by
the Probation Department." Id. at 563 (internal quotation
marks omitted). The trial court had issued both an order to
show cause why defendant's probation should not be revoked
and a bench warrant, and the state considered him "a fugi-
tive from justice." Id. Defendant's lawyer did not disagree
with those facts. Id. After briefly reviewing Broom and
Parchen, and emphasizing the references in those cases to
the term "fugitive from justice," the court concluded:
"No persuasive reason has been given why this court
should proceed to decide the merits of this criminal case
3 Nevertheless, this court did not exercise its discretion to dismiss in Broom;
this court already had heard the case on the merits and concluded that the convic-
tion should be affirmed. Id. at 210.

36 	State v. Robbins
after defendant has failed to make himself available for pro-
bation supervision as required by the trial court on his con-
viction. Although defendant's absconding from probation
does not deny this court the power to review his case, we, in
our discretion, decline to call upon the resources of this
court for a review of his case."
Id. at 564.
As the court noted in Smith, the failure to comply
with the supervision requirements of probation may justify a
determination that a defendant has absconded. But, as we
discussed earlier, the definitions of "abscond" and "escape"
both show that the purpose behind the defendant's actions
are key-the defendant must intend to evade justice by
flight, by hiding, by avoiding probation supervision, or by
some combination of those actions. That conclusion is further
confirmed by this court's earlier cases asserting discretion to
dismiss an appeal when a defendant has become a "fugitive
from justice," the term "fugitive from justice" being used in all
three cases.
In the end, our review of the text of the rule and this
court's case law confirm that the dictionary definition of
"abscond" accurately reflects the requirements of ORAP
8.05(3). In determining whether a defendant has absconded
from supervision, appellate courts must consider whether the
defendant's acts show the intent that inheres in the defini-
tion of "abscond"-not simply that the defendant failed to
attend one meeting with a probation officer or could not be
located for a brief period of time, but that the defendant
sought to "evade the legal process of a court by hiding within
or secretly leaving its jurisdiction." Webster's at 6. Moreover,
as our prior cases reflect, the "legal process" sought to be
evaded may include compliance with the terms of one's sen-
tence, including the defendant's conduct in "mak[ing] himself
available for probation." Smith, 312 Or at 564.
Usually, of course, an appellate court has no direct
way to discern a defendant's intent in taking particular
actions. But a court may infer intent from the nature of the
defendant's acts themselves. As this court has noted in con-
nection with the intent requirements for crimes generally:

Cite as 345 Or 28 (2008)
"Evidence of a defendant's intent is rarely, if ever,
proven by direct evidence. Intent is an operation of the
mind, and it is seldom susceptible of direct proof. This sub-
jective fact is usually established by a consideration of
objective facts, and from these objective facts an ultimate
conclusion is drawn."
37
State v. Rose, 311 Or 274, 282, 810 P2d 839 (1991) (citation
omitted). This court did exactly that in Smith, where it
inferred the necessary evasive intent from the defendant's
conduct in failing to report monthly to his probation officer,
the trial court's issuance of a show cause order for revocation
of probation, the trial court's issuance of a bench warrant and
the state's assertion, undisputed by defense counsel, that
defendant was a "fugitive from justice." 312 Or at 564.
Similarly, in many cases, an appellate court reason-
ably can infer from a defendant's actions that the defendant
intended to evade probation supervision because the defen-
dant hid or secretly left the jurisdiction or because a pattern
of violations permits the inference that the defendant is
intentionally evading the legal process. Here, however, the
Court of Appeals dismissed defendant's appeal solely because
defendant had missed a single appointment with her proba-
tion officer. The court could not infer the required intent from
so little: A single missed appointment is not enough to con-
clude that defendant was hiding or that she sought to evade
the court's jurisdiction. Neither, for that matter, does missing
a single probation appointment, standing alone, make a
defendant a "fugitive from justice."
The state nevertheless argues that, because ORAP
8.05(3) does not define such terms as "abscond" and "escape,"
the Court of Appeals has been granted "broad discretion in
determining whether an appellant had become a fugitive."
We disagree. It is true that this court and the Court of
Appeals have discretion to decide whether to dismiss an
appeal if the defendant has escaped or absconded, but that
discretion does not extend to determining the meaning of the
words of the rule. The absence of a specific definition for a
term that appears in a rule does not mean that the term is an
empty vessel, to be filled with whatever meaning a court
chooses. This court has held that a court's task in interpret-
ing an administrative rule is to ascertain the intent of the

38 	State v. Robbins
body that promulgated the rule, beginning with an exami-
nation of the text and context of the rule. Marshall's Towing
v. Department of State Police, 339 Or 54, 62, 116 P3d 873
(2005). Although the Oregon Rules of Appellate Procedure
are not administrative rules subject to the rulemaking pro-
cedures of the Administrative Procedure Act, ORS 183.325 to
183.410, but rather are adopted by a joint order of the Chief
Justice of the Supreme Court and the Chief Judge of the
Court of Appeals pursuant to the statutory authority previ-
ously cited, we see no reason not to apply the same interpre-
tive method here, and we have done so. We reject the state's
argument that the Court of Appeals has "broad discretion" in
its interpretation of ORAP 8.05(3). The meaning of the word
"abscond" does not vary with the discretion of the court.
That said, we emphasize that our ruling today is lim-
ited to the interpretation and application of ORAP 8.05(3),
because the state's motion to dismiss and the Court of
Appeals orders at issue here rely only on that rule. We do not
address the authority of an appellate court to dismiss an
appeal as a sanction for misconduct. See Pruett and Pruett,
185 Or App 669, 678, 60 P3d 1094, rev den, 335 Or 443 (2003)
(dismissing appeal because "defendant has deliberately and
repeatedly flouted the trial court's contempt judgments by
failing to surrender to authorities to serve his jail sentence").
Moreover, because we 	conclude that defendant did not
"abscond" for purposes of ORAP 8.05(3), we need not consider
her argument that her appeal should not be dismissed
because she had "surrendered" within the meaning of that
rule by the time the Court of Appeals decided the motion to
dismiss or her claim that the rule, if interpreted to permit the
dismissal of her appeal, exceeds the appellate courts' statu-
tory authority to make rules regarding the appellate process.
The order of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.