State v. Ibarra

Under ORS 138.255, the Chief Judge and Appellate Commissioner may grant a motion for summary affirmance that does not present a substantial question of law without the concurrence of two judges when the appellant does not file a response.

Defendant petitioned for reconsideration of an order granting summary affirmance. Defendant argued that the Appellate Commissioner lacked the authority to grant summary affirmance where the State reported in the motion that Defendant objected to the motion, but Defendant did not file a response. Under ORS 138.255, the Chief Judge and Appellate Commissioner may grant a motion for summary affirmance that does not present a substantial question of law without the concurrence of two judges when the appellant does not file a response. The Court found that the phrase “oppose the motion,” as used in ORS 138.255, requires an actively communicated disagreement. The Court reasoned that the mere recital in the motion by the State that Defendant objected to the motion did not actively communicate disagreement because it did not actively communicate the reasons why Defendant disagreed with the State’s position that his appeal did not present a substantial question of law. As a result, the motion was unopposed, and the Appellate Commissioner was empowered to dispose of the motion. Reconsideration granted; order of summary affirmance adhered to.