S057103, Opinion — State v. Harding

368
Argued and submitted November 3, petition for review dismissed; decision of Court
of Appeals vacated, and judgment of circuit court affirmed December 17, 2009
STATE OF OREGON,
Petitioner on Review,
v.
ISAAC S. HARDING,
true name Isaac S. Harden,
Respondent on Review.
(CC 970432879; CA A133051; SC S057103)
223P3d1029
CJS, Criminal Law§ 1686.

Cite as 347 Or 368 	369
En Banc
On review from the Court of Appeals.*
Timothy A. Sylwester, Attorney-in-Charge, Capital Cases,
Salem, argued the cause for petitioner on review. With him
on the petition were Erika L. Hadlock, Acting Solicitor
General, and John R. Kroger, Attorney General. With him on
the brief were Jerome Lidz, Solicitor General, and John R.
Kroger, Attorney General.
Robin A. Jones, Senior Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause for respon-
dent on review. With her on the brief was Peter Gartlan,
Chief Defender.
DE MUNIZ, C. J.
The petition for review is dismissed. The decision of the
Court of Appeals is vacated, and the judgment of the circuit
court is affirmed.
* Appeal from Multnomah County Circuit Court, Julie E. Frantz, ,Judge. 222
Or App 415, 193 P3d 1055 (2008).

DE MUNIZ, C. J.
The state seeks review of a Court of Appeals decision
vacating and remanding a trial court judgment that denied
defendant's motion to modify his judgment of conviction and
sentence by deleting a provision of the judgment imposing an
upward departure sentence. However, our review of the rec-
ord reveals that defendant's notice of appeal was not filed
timely. 	Therefore, this court lacks jurisdiction over the
appeal. We issue this opinion in order to note an inconsis-
tency between the Oregon Rules of Appellate Procedure
(ORAP) and the Oregon Revised Statutes, and to clarify
which one governs this case.
ORS 138.071(4) provides:
"If the trial court enters a corrected or a supplemental
judgment under ORS 138.083, a notice of appeal from the
corrected or supplemental judgment must be filed not later
than 30 days after the defendant receives notice that the
judgment has been entered."
Here, the corrected judgment was entered on June 28,
2006. Defendant's notice of appeal was received and deemed
filed on August 2, 2006, or 35 days later. However, a notice of
appeal may be deemed timely if it falls within certain statu-
tory exceptions. For example, ORS 138.071(5)(a) provides
that the Court of Appeals shall grant a defendant leave to file
a late notice of appeal if the defendant makes a motion within
90 days and:
"(A) 	The defendant, by clear and convincing evidence,
shows that the failure to file a timely notice of appeal is not
attributable to the defendant personally; and
"(B) 	The defendant shows a colorable claim of error in
the proceeding from which the appeal is taken."
Here, defendant did not file such a motion in the Court of
Appeals and does not assert in this court that his failure to
file his notice of appeal not later than 30 days after notice
that the judgment was entered is not attributable to him
personally.
Another statutory exception to the deadline set out
at ORS 138.071(4) allows a notice of appeal to be filed by

Cite as 34 7 Or 368
mail, with the date of the mailing qualifying as the date of
filing, 	by 	following 	certain 	procedures. 	ORS 	19.260(1) 1
provides:
"Filing a notice of appeal in the Court of Appeals or the
Supreme Court may be accomplished by mail. The date of
filing such notice shall be the date of mailing, provided it is
mailed by registered or certified mail and the party filing the
notice has proof from the post office of such mailing date.
Proof of mailing shall be certified by the party filing the
notice and filed thereafter with the court to which the
appeal is taken. If the notice is received by the court on or
before the date by which such notice is required to be filed,
the party filing the notice is not required to file proof of
mailing."
(Emphasis added.) ORAP l.35(1)(c) is in accord with ORS
19.260(1) and provides:
"A person filing a notice of appeal, petition for judicial
review or petition under the original jurisdiction of the
Supreme Court may file by mail and the filing shall be com-
plete on deposit in the mail if mailed in accordance with
ORS 19.260(1). If the person relies on the date of mailing as
the date of filing under ORS 19.260(1), the person shall cer-
tify the date of mailing and shall file the certificate,
together with acceptable proof from the post office of the
date of mailing, with the Administrator with proof of serv-
ice on the parties to the appeal, judicial review or original
proceeding. Acceptable proof from the post office of the date
of mailing shall be a receipt for certified or registered mail,
with the certified or registered mail number on the enve-
lope or on the item being mailed, with the date of mailing
either stamped by the United States Postal Service on the
receipt or shown by a United States Postal Service postage
validated 	imprint 	on 	the 	envelope 	received 	by 	the
Administrator."
(Emphasis added.) Thus, if defendant intended to rely on the
date of mailing as the date of filing his notice of appeal, he
was required to mail the notice by registered or certified mail.
Here, however, defendant mailed his notice of appeal by
ordinary first class mail. Neither ORS 19.260(1) nor ORAP
1 ORS 19.260 applies to criminal appeals pursuant to ORS 138.185(2) (~The
provisions of* * * 19.260 	*shall apply to appeals to the Court of Appeals.").

372 	State v.
1.35(1)(c) permits the court to treat the date of mailing as the
date on which defendant filed his notice of appeal.
Finally, in the case of incarcerated persons, ORAP
1.35(4) provides that
"[w ]ith respect to a person confined in an ins ti tu ti on of con-
finement who files and serves a thing in the appellate court,
the thing shall be deemed filed in the appellate court and
served on another person when the original of the thing and
the appropriate number of copies are delivered, in a form
suitable for mailing, to the person or place designated by
the institution for handling outgoing mail."
When defendant filed his notice of appeal, he was incarcer-
ated at the Oregon State Correctional Institution (OSCI).
Assuming that defendant delivered his notice of appeal to the
person or place designated by OSCI for handling outgoing
mail before July 28, 2006-that is, the thirtieth day after the
judgment at issue in this case was entered-GRAP 1.35(4)
would seemingly make the notice of appeal timely.
However, as set out above, ORS 19.260(1) requires
that, to take advantage of that statute, the appealing party
must mail the notice of appeal by registered or certified mail
and also must provide proof from the post oflice of the mailing
date, certify the proof of mailing, and file it with the court.
Defendant did not comply with those requirements. The
question becomes: Does the rule govern, or does the statute?
The answer is straightforward. The Rules of Appellate
Procedure were themselves created on the basis of a statu-
tory authorization. See ORS 1.002(1) (providing in part that
"[t]he Chief Justice shall exercise administrative authority
and supervision over the courts of this state consistent with
applicable provisions of law and the Oregon Rules of Civil
Procedure") (emphasis added); ORS 2.120 ("The Supreme
Court shall have power to make and enforce all rules neces-
sary for the prompt and orderly dispatch of the business of
the court, and the remanding of causes to the court below.").
Because the rules are dependent on statutory authority, they
necessarily are subordinate to that authority. It follows that,
where there is an inconsistency between a statute and a rule
(as there is between ORS 19.260(1) and ORAP 1.35(4)), the

Cite as 34 7 Or 368 (2009) 	373
statute must govern. Defendant therefore may not rely on
ORAP 1.35(4) to establish that his appeal was timely.
Because defendant's notice of appeal was not timely
filed, neither the Court of Appeals nor this court has jurisdic-
tion over the trial court judgment challenged by defendant in
this case. We therefore dismiss the state's petition for review
in this court and vacate the decision of the Court of Appeals.
The petition for review is dismissed. The decision of
the Court of Appeals is vacated, and the judgment of the cir-
cuit court is affirmed.