Filed: August 23, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, Respondent on Review,

v.

MICHAEL LEE MULLINS, Petitioner on Review.

(CC 085207AFE; CA A141529; SC S059833)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 13, 2012.

Mary M. Reese, 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.

Paul L. Smith, Attorney

- in

- Charge, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

WALTERS, J.

The decision of the Cou rt of Appeals is affirmed. The judgment of conviction and sentence and the supplemental judgment for restitution entered by the circuit court are affirmed.

*Appeal from Jackson County Circuit Court, Lisa C. Greif, Judge

. 245 Or App 505, 263 P3d 370 (201 1).1 WALTERS, J. 1

In this criminal case, we must determine whether defendant filed his notice 2

of appeal from a supplemental judgment awarding restitution within the time allowed by 3

ORS 138.071(4), which requires that the notice of appeal be filed not later than 30 days 4

after "the defendant receives notice that the judgment has been entered." The Court of 5

Appeals concluded that defendant's notice of appeal from the supplemental judgment was 6

untimely and dismissed that appeal for lac k of jurisdiction. State v. Mullins , 245 Or App 7

505, 263 P3d 370 (2011). 1 For the reasons set out in this opinion, we too conclude that 8

defendant's notice of appeal was not ti mely filed, and we therefore affirm the decision of 9

the Court of Appeals. 10

The procedural facts are as follows. Defendant was charged in December 11

2008 with second

- and third

- degree assault

, and was represented by trial counsel. In 12

early February 2009, a jury found defendant guilty on both charges. That same day, the 13

trial court entered a judgment of conviction and sentence, which included an instruction 14

that defendant pay restitution "in an amount to be determined as ordered and pursuant to 15

ORS 137.106 [(1)](b)." 2 In March 2009, defendant, with the assistance of different 16

1 The Court of Appeals also rejected without discussion issues relating to the underlyi ng judgment of conviction and sentence that defendant raised in a pro se supplemental brief in that court; the court affirmed that underlying judgment. Mullins

, 245 Or App at 507, 507 n 1. In this court, defendant does not challenge the decision of the C ourt of Appeals affirming the judgment of conviction and sentence; instead, he requests that this court reverse the Court of Appeals' jurisdictional ruling as to the supplemental judgment and remand to that court for consideration of his challenge to the

m erits of the supplemental judgment.

2 ORS 137.106(1)(b) provides, in part, that a judgment may include:2

appellate counsel, filed a timely notice of appeal from the judgment of conviction and 1

sentence. 3 At that time, defendant's trial counsel continued to represent defendant on 2

post

- jud gment matters to be decided in the trial court, including matters relating to the 3

amount of restitution that defendant would be required to pay. 4

On July 9, 2009, the state moved for an "amended" judgment and money 5

award, and sought $2,603.70 in restituti on. That same day, without conducting a 6

hearing, 4 the trial court signed a "Judgment for Restitution" that ordered defendant to pay 7

the amount requested. On July 10, the trial court entered that supplemental judgment in 8

the register. Neither defendant, his trial counsel, nor his appellate counsel received notice 9

of entry of the supplemental judgment at that time. However, the parties agree that, at 10

least by November 20, 2009, defendant's trial counsel

-- but not his appellate counsel

-- in 11

" A requirement that the defendant pay the victim restitution, and that

the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim ' s economic damages as determi ned by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause."

3 Under ORS 138.071(1), the notice of appeal from the judgment of conviction and sentence was due " not later than 30 days after the judgment or order appealed f

rom was entered in the register. "

4 Nothing in this opinion should be construed to sanction the procedure that the trial court used

-- that is, entry of a supplemental judgment awarding restitution without first conducting a hearing. See ORS 137.106(5) (requiring court to allow a defendant "to be heard" if the defendant objects to imposition, amount, or distribution of restitution). As noted below, the trial court's failure to conduct a hearing was the ba sis for defendant's challenge to the supplemental judgment on the merits, and we do not reach that challenge here.3

fact had rece ived notice of entry of the supplemental judgment. 5 On and after that date, 1

trial counsel continued to serve as defendant's trial court attorney of record (no formal 2

notice of withdrawal appears in the record). 3

On March 23, 2010, more than eight months after entry of the supplemental 4

judgment and approximately four months after defendant's trial counsel received notice 5

of entry of the supplemental judgment, defendant's appellate counsel learned of entry of 6

that j udgment and filed an amended notice of appeal from it. In his opening brief on 7

appeal, defendant assigned error to the trial court's entry of the supplemental judgment 8

without providing defendant with an opportunity to be heard. See ORS 137.106(5) 9

(requi ring court to allow a defendant "to be heard" if the defendant objects to imposition, 10

amount, or distribution of restitution). In response, the state contended that the Court of 11

Appeals did not have jurisdiction to consider defendant's claim of error, bec ause 12

defendant's amended notice of appeal was untimely under ORS 138.071(4). 13

The Court of Appeals affirmed defendant's judgment of conviction and 14

sentence, but dismissed his appeal from the supplemental judgment awarding restitution, 15

concluding

-- as the state argued

-- that it lacked jurisdiction because defendant's appeal 16

from the supplemental judgment was untimely under ORS 138.071(4). Mullins , 245 Or 17

5 In August 2009, defendant's codefendant had requested a hearing on the amount of restitution that he would be required to pay, and the trial court scheduled a hearing for November 23, 2009, with notice to both the codefendant and defendant. On November 20, defendant's trial counsel moved to continue the hearing, which later was rescheduled to March 1, 2010. The parties agree that, as of the date of the motion to continue filed on November 20, 2009, defendant's trial counsel had received notice of the supplemental judgment entered in defendant's case.4

App at 507, 510. The court relied on this court's then

- recent decision in State v. Fowler

, 1

350 Or 133, 252 P3 d 302 (2011), which we discuss in detail later in this opinion. We 2

allowed defendant's petition for review. 3

Ordinarily, a notice of appeal must be filed and served " not later than 30 4

days after the judgment or order appealed from was entered in the register." ORS 5

138.071(1). However, ORS 138.071(4) sets out an exception to that rule, and it is that 6

exception that is at issue in this case. That exception applies to appeals from certain 7

corrected, modified, or supplemental judgments

-- including a supplemental judgment 8

that determines the amount and terms of restitution ordered in a previous judgment

-- and 9

provides: 10

"If the trial court enters a corrected or a supple mental judgment 11 under ORS 138.083, [ 6 ] a notice of appeal from the corrected or 12

6 ORS 138.083 grants a trial court post

- judgment jurisdiction to (1) modify a judgment or sentence to correct any arithmetic or clerical errors; (2) delete or modify any erroneous term in a judgment; or (3) determine the amount of restitution previously ordered, through entry of a supplemental judgment. As to restitution, ORS 138.083(2)

pr ovides:

" (a) A judgment that orders payment of restitution but does not specify the amount of restitution imposed is final for the purpose of appealing the judgment.

" (b) Notwithstanding the filing of a notice of appeal, the sentencing court retains auth ority to determine the amount of restitution and to enter a supplemental judgment to specify the amount and terms of restitution.

" (c) If a sentencing court enters a supplemental judgment under this subsection while an appeal of the judgment of conviction is pending, the court shall immediately forward a copy of the supplemental judgment to the appellate court. Any modification of the appeal necessitated by the supplemental judgment may be made in the manner specified by rules adopted by the appella te cou rt."5

supplemental judgment must be filed not later than 30 days after the 1 defendant receives notice that the judgment has been entered ." 2

(Emphasis added.) 3

The parties' dispute centers on the emphasized wording of ORS 138.071(4). 4

Defendant's argument is comp o sed of two parts. First, defendant asserts that, for the 30

- 5

day appeal period to begin to run, a defendant must receive actual notice that a 6

supplemen tal judgment under ORS 138.083 has been entered in the register. Second, 7

defendant contends that, in requiring that "the defendant" receive actual notice, ORS 8

138.071(4) requires that notice be received by the defendant's counsel, if the defendant is 9

repr esented, and, specifically, by the defendant's appellate counsel, if the defendant is 10

represented by different counsel on appeal than at trial. That is, even if a defendant 11

personally, or the defendant's trial counsel, has received actual notice of entry of a 12

supplemental judgment under ORS 138.083, the 30

- day appeal period begins to run only 13

if and when the defendant's appellate counsel receives actual notice of entry of the 14

supplemental judgment. 15

For its part, the state does not disagree that ORS 138 .071(4) sets out an 16

"actual" rather than a "constructive" notice requirement. The state also does not disagree 17

that the words "the defendant" could include a defendant's appellate counsel. In the 18

state's view, however, once the defendant, trial counsel, or appellate counsel receives 19

actual notice of entry of a supplemental judgment under ORS 138.083, the statutory 20

For purposes of construing ORS 138.071(4) in this opinion, we refer to a trial court's entry of a supplemental judgment awarding restitution under ORS 138.083(2)(b) as a "supplemental judgment under ORS 138.083."6

requirement is satisfied, and the 30

- day appeal period begins to run. And, here, because 1

the record reflects that defendant's trial counsel re ceived notice of entry of the 2

supplemental judgment not later than November 20, 2009, the 30

- day appeal period ran 3

on December 21, 2009, 7 approximately three months before defendant's appellate counsel 4

filed the amended notice of appeal from the supplement al judgment. 5

To resolve the parties' dispute, we must construe ORS 138.071(4), using 6

our established methodology. See State v. Gaines , 346 Or 160, 171

- 72, 206 P3d 1042 7

(2009 ) (when construing statutes, court first considers statutory text and context and, to 8

extent useful to court's analysis, legislative history); State v. Toevs , 327 Or 525, 532, 96 4 9

P2d 1007 (1998) (court also considers case law construing statute at issue at first level of 10

analysis). Again, as pertinent here, the operative words of ORS 138.071(4) are that an 11

appeal from a supplemental judgment under ORS 138.083 must be filed "not later than 30 12

days after the defendant receives notice that the judgment has been entered." 13

As noted, the parties do not dispute that, by stating that a defendant must 14

"receive[] notice" for the 30

- day appeal period to begin to run, the legislature inten ded 15

that a defendant receive actual rather than constructive notice of entry of the 16

supplemental judgment. In other words, the legislature contemplated that (1) some 17

person or entity would provide the defendant with the notice in question (that is, that 18

7 Because December 20, 2009, fell o n a Sunday, the last day to file a notice of appeal from the supplemental judgment

-- assuming receipt of notice of entry of that judgment by "defendant" on November 20, 2009

-- was December 21, 2009. See ORS 174.120(2)(a) (stating time computation rule w hen last day falls on legal holiday); ORS 187.010(1)(a) (designating each Sunday as legal holiday).7

e ntry of a qualifying judgment had occurred); and (2) the defendant need not act to 1

preserve the time for appeal until receiving that notice . E ntry of the supplemental 2

judgment in the register would not alone be sufficient to trigger the 30

- day appeal peri od. 3

We agree with the parties that the statutory text of ORS 138.071(4) plainly 4

contemplates a defendant's receipt of actual notice of entry of a supplemental judgment 5

under ORS 138.083. The statutory wording, "after the defendant receives notice," is s et 6

out in the passive voice and therefore does not identify the actor who must deliver notice 7

to the defendant. See generally Brentmar v. Jackson County , 321 Or 481, 487, 900 P2d 8

1030 (1995) (where land use statute provided that certain uses "may be estab lished," 9

statute's use of passive voice in key verb "establish" meant that statute did not specify the 10

actor); Duncan v. Augter , 286 Or 723, 727, 596 P2d 555 (1979) (passive wording in 11

statute of limitations regarding when injury is discovered or reasonabl y should have been 12

discovered did not specify whose discovery triggered time limitation). However, the 13

statutory wording unambiguously directs that the trigger for the start of the 30

- day appeal 14

period is a defendant's receipt of notice of entry of a supp lemental judgment from some 15

source. It follows that a defendant is not deemed to receive that notice by virtue of its 16

entry and is not independently obligated to determine the date or fact of entry of a 17

supplemental judgment under ORS 138.083 to preserve the time for appeal. 18

Statutory context confirms that reading. Most notably, other parts of ORS 19

138.071 that establish various time periods for appeal are based on the date of entry of 20

the judgment or order at issue

-- and thereby on a party's constructi ve notice of that date

- 21

- and not on a defendant's receipt of actual notice of entry. See, e.g. , ORS 138.071(1) 228

(setting out general rule that notice of appeal must be served and filed "not later than 30 1

days after the judgment or order appealed from was entered in the register " (emphasis 2

added)); ORS 138.071(2)(a) (same, regarding notice of appeal from order disposing of 3

motion for new trial or arrest of judgment). That distinct difference in statutory wording 4

indicates that, by using the precise words " receives notice" in ORS 138.071(4), the 5

legislature intended to impose an actual, not a constructive, notice requirement for 6

appeals from supplemental judgments entered under ORS 138.083. 7

In their application of that "actual notice" requirement to the facts of this 8

case, the parties discuss this court's decision in Fowler , 350 Or 133, and, as noted, the 9

Court of Appeals followed Fowler in concluding that defendant's amended notice of 10

appeal was untimely. In Fowler , the trial court had informed the defe ndant, at the 11

conclusion of a hearing on the state's request for transportation costs, that an "amended 12

judgment" awarding costs would be entered and that the time to appeal that judgment had 13

begun to run. Two days later, a supplemental judgment was enter ed in the register. More 14

than 30 days later, the defendant filed his notice of appeal from the supplemental 15

judgment. Id. at 135

- 36. 16

The Court of Appeals affirmed both the original and supplemental 17

judgments without opinion, and the defendant petitioned for review. Id. at 136. In an 18

opinion that allowed the defendant's petition in part, this court vacated the aspect of the 19

Court of Ap peals decision that affirmed the supplemental judgment and remanded with 20

instructions to dismiss the defendant's appeal from that judgment for lack of jurisdiction. 21

Id. at 140. This court expressed two bases for its decision: (1) nothing in the record 229

s uggested that the supplemental judgment at issue qualified as a supplemental judgment 1

awarding restitution under ORS 138.083, thereby rendering ORS 138.071(4)

-- whic h 2

measures the time for appeal from the date that a defendant receives notice of entry of 3

supplemental judgment rather t han from the date of its entry

-- inapplicable; and (2) even 4

if the judgment at issue qualified under ORS 138.083 and therefore ORS 138.071(4) 5

applied , the trial court had informed both the defendant and her trial counsel that it would 6

impose the requested costs in a supplemental judgment, and, in that circumstance, the 7

defendant's failure to "check the status of that judgment" did not excuse her failure to file 8

a timely notice of appeal. 350 Or at 139. 9

In its opinion in t his case, the Court of Appeals determined that this court's 10

secondary rationale in Fowler amounted to an independent reason for reaching the 11

dispositional result, rather than mere dictum that accompanied a primary holding that the 12

judgment in question did not qualify as a supplemental judgment awarding restitution 13

under ORS 138.083. Accordingly, the Court of Appeals relied on that independent 14

reason to conclude that defendant's notice of appeal was not timely filed. Mullins , 245 Or 15

App at 510. 16

The Cou rt of Appeals fairly characterized the secondary rationale from 17

Fowler as an alternative holding, rather than dictum

. See Woodard v. Pacific F. & P. 18

Co. , 165 Or 250, 256

- 67, 106 P2d 1043 (1940) ("[W]here the court bases its decision on 19

two or more distinc t grounds, each ground so specified is, as much as any of the others, 20

one of the grounds, a ruling upon questions involved in the case, and not 'mere dictum .'" 21

(Internal quotation marks omitted.)) And, the Court of Appeals understandably reasoned 2210

that th at secondary rationale controlled the outcome in this case

-- that is, the suggestion 1

in Fowler that the defendant's failure to ascertain the date of entry of a known, impending 2

judgment did not excuse her failure to timely file a notice of appeal under OR S 3

138.071(4). Fowler , 350 Or at 139. 4

As noted, one of the key facts before this court in Fowler was that the 5

supplemental judgment at issue was not a judgment awarding restitution under ORS 6

138.083. Consequently, the identified predicate requirement fo r the appeal timeline set 7

out in ORS 138.071(4)

-- that the supplemental judgment be one establishing the amount 8

and terms of previously ordered restitution under ORS 138.083

-- was not satisfied. That 9

fact is not present in this case; the parties agree t hat the supplemental judgment at issue 10

here is a judgment awarding restitution under ORS 138.083. Therefore, we must decide 11

whether the secondary and alternative rationale expressed in Fowler controls the result in 12

this case. 13

The parties' arguments in t hat respect permit us to see more closely than 14

was obvious when this court decided Fowler that two aspects of the opinion in that case 15

could prove confusing. First, Fowler could be read to hold that a defendant against 16

whom a supplemental judgment under O RS 138.083 is entered may be required under 17

ORS 138.071(4) to "check the status of that judgment" to ensure the timely filing of a 18

notice of appeal, rather than await actual notice of entry of that judgment. 350 Or at 139. 19

That reading of Fowler is not j ustified. In Fowler

, the trial court expressly had informed 20

both the defendant and her trial counsel in open court, at the conclusion of a hearing on 21

the matter at issue, that it would enter a supplemental judgment and that the time for 2211

appealing the matt er had commenced. It was only in that context that this court 1

commented that the defendant's failure to ascertain the date of entry of that judgment was 2

unavailing. The court did not hold that constructive notice was sufficient to meet the 3

requirements o f ORS 138.071(4), and, for the reasons that we have given, that statute 4

requires actual rather than constructive notice of entry of a supplemental judgment under 5

ORS 138.083. 6

The second aspect of Fowler that requires attention is its implication that 7

act ual notice that a supplemental judgment under ORS 138.083 will be entered may meet 8

the requirement of ORS 138.071(4) that a defendant receive notice that such a judgment 9

" has been entered." (Emphasis added.) This court in Fowler was not asked to focus

-- 10

and did not focus

-- on that wording. It is appropriate for us to do so now. As previously 11

discussed, ORS 138.071(4) requires that a defendant receive actual notice that a 12

supplemental judgment under ORS 138.083 "has been entered," and we disavow any 13

co ntrary implication in Fowler

. 8 14

We therefore turn to the issue on which this case depends and on which the 15

parties' arguments differ: Whether, to meet the requirement in ORS 138.071(4) that "the 16

defendant" receive notice of entry of a supplemental judgme nt under ORS 138.083, it is 17

sufficient that a defendant, personally, or the defendant's trial counsel

-- as opposed to the 18

defendant's appellate counsel

-- receive such notice. As noted earlier, defendant contends 19

8 The facts in this case do not call on us to decide whether oral notice that a supplemental judgment under ORS 138.083 "has been entered" is sufficient to satisfy the requirements of ORS 138.071(4), and we do not do so.12

that, if a defendant is represented by appellate counsel, only notice received by appellate 1

counsel triggers the 30

- day appeal period. The state does not disagree that the statutory 2

phrase "the defendant" could be construed to include appellate counsel, but argues that 3

notice received by the d efendant, personally, or by trial counsel also satisfies the statutory 4

requirement. From that premise, the state reasons that the notice of entry of the 5

supplemental judgment received by defendant's trial counsel in November 2009 triggered 6

the 30

- day appe al period in this case and that the amended notice of appeal filed in March 7

2010 therefore was untimely. 8

We agree with the parties that, when the legislature based the time to appeal 9

from a supplemental judgment under ORS 138.083 on the date that " the de fendant 10

receives notice that the judgment has been entered," ORS 138.071(4) (emphasis added), it 11

intended to include notice received by defense counsel, if the defendant is represented. 9 12

It is, of course, literally possible to view that text as referring to only the defendant 13

personally; however, as defendant emphasizes, various contextual statutes suggest a 14

broader reading when a defendant is represented by counsel. For example, in addition to 15

setting out the requirements to file a notice of appeal, ORS 138.071 sets out other service 16

and filing requirements that apply to a "defendant," even though the actions described 17

ordinarily are taken by counsel, if a defendant is represented. See ORS 138.071(3) 18

9 We emphasize that the dispute in this case centers on the fact that defendant's trial counsel, but not his appellate counsel, received notice of entry of a supplemental judgment under OR S 138.071(4). This case does not present the circumstance in which a represented defendant, personally

-- but not the defendant's counsel

-- received notice, and we do not decide how ORS 138.071(4) would apply in that circumstance.13

(cross

- appealing "defendant" must serve and file notic e of cross

- appeal within specified 1

time limit); ORS 138.071(5)(a) ("defendant" filing motion for leave to file late notice of 2

appeal must show that failure to timely appeal not attributable to defendant personally 3

and also show colorable claim of error in underlying proceeding). And, as the state notes, 4

nothing in the statutory context suggests that ORS 138.071(4) was intended to exclude 5

defense counsel, if a defendant is represented. 6

Two other Oregon statutes

-- both contained in c hapter 9 of the Oregon 7

Revised Statutes, pertaining to attorneys

-- provide additional context for our construction 8

of ORS 138.071(4). ORS 9.310 provides, in part: 9

"An attorney is a person authorized to represent a party in the written 10 proceedings in any action, suit or proc eeding, in any stage thereof. An 11 attorney * * * may also represent a party in court, or before a judicial 12 officer, in which case the attorney is known as counsel, and the authority of 13 the attorney is limited to the matters that transpire in the court or b efore 14 such officer at the time ." 15

(Emphasis added.) Additionally, ORS 9.320 provides, in part: 16

" Any action, suit, or proceeding may be * * * defended by a party in 17 person, or by attorney * * *. Where a party appears by attorney, the written 18 proceedings m ust be in the name of the attorney, who is the sole 19 representative of the client of the attorney as between the client and the 20 adverse party [with an exception that does not apply here]." 21

(Emphasis added.) Consistently with those statutes, counsel for a c riminal defendant 22

effectively serves as a representative or agent for the defendant in a court proceeding for 23

which an attorney is appointed or retained See Lehman v. Knott , 100 Or 240, 246, 187 P 24

1109 (1920) ("The relationship of attorney and client is that of principal and agent."); see 25

also Granewich v. Harding , 329 Or 47, 56 n 5, 985 P2d 788 (1999) (citing agency 2614

principles in context of attorney

- client relationship). As th is court has explained, in the 1

context of an administrative agency proceeding, 2

"when an [administrative] agency has actual knowledge that a person is 3 represented by counsel, that knowledge triggers certain obligations on the 4 part of the agency and certain rights in the represented person. After 5 receiving information that a party is represented by a lawyer, an agency 6 rightfully may presume that the lawyer has authority to speak on behalf of 7 the party on all matters pertaining to the representation. By the same token, 8 a party, having elected to be represented by a lawyer, is entitled to rely on 9 the lawyer to deal with the agency on its behalf and to expect the agency to 10 deal with the lawyer." 11

ETU, Inc. v. Environmental Quality Commission , 343 Or 57, 66, 162 P3d 248 (2007). 12

See also generally Goldsborough v. Eagle Crest Partners, Ltd. , 314 Or 336, 342, 343 n 13

10, 838 P2d 1069 (1992) (in absence of evidence to contrary, inference may be drawn 14

that lawyer who voluntarily turned over privileged material during d iscovery acted within 15

scope of authority from client and with client's consent; attorney akin to agent). That 16

reasoning applies with equal force to the relationship between a criminal defendant and 17

counsel representing the defendant in the criminal case. 18

It follows as a textual and contextual matter that, in referring to notice 19

received by "the defendant," ORS 138.071(4) includes notice received by the defendant's 20

counsel in the case. Although the parties agree on that point, their arguments diverge 21

reg arding whether the statute requires notice to a defendant's appellate counsel if the 22

defendant is represented on appeal or also refers to notice received by the defendant's trial 23

counsel during the course of any concurrent representation. Turning again to the context 24

that ORS 9.310 provides, the authority of counsel in the representation "is limited to the 25

matters that transpire in the court." In this case, both trial and appellate counsel had 2615

authori ty to act on defendant's behalf in their respective cou rts. Trial counsel represented 1

defendant in the underlying trial court proceeding, including the post

- judgment 2

proceedings that culminated in entry of the supplemental judgment. The supplemental 3

judgment awarding restitution was entered in those post

- jud gment proceedings while trial 4

counsel was attorney of record for defendant in that court. Consequently, the scope of 5

trial counsel's representation extended to receipt of notice of entry of that supplemental 6

judgment. Appellate counsel, in turn, represen ted defendant on appeal. Such 7

representation encompassed the filing of any required notice of appeal

-- here, the notice 8

of appeal from the judgment of conviction and sentence and the amended notice of appeal 9

from the supplemental judgment. Consequently, the scope of appellate counsel's 10

representation also extended to receipt of notice of entry of the supplemental judgment, 11

the event that triggered the 30

- day period for filing the notice of appeal. 12

The foregoing statutory context supports the state's re ading of ORS 13

138.071(4) as applied to this case

-- that is, that notice received by "the defendant" 14

included notice received by defendant's trial counsel and, therefore, that trial counsel's 15

receipt of notice of entry of the supplemental judgment was suffi cient to trigger the 30

- 16

day appeal period. Defendant argues, however, that we also must consider relevant 17

legislative history and that the history that he proffers supports his assertion that ORS 18

138.071(4) requires receipt of notice by appellate counsel, if the defendant is represented 19

for purposes of appeal. The state does not challenge the history that defendant proffers, 20

but it draws a different conclusion from it, in the context of the facts of this case. 21

The identified legislative history is prima rily recited in an unpublished 2216

order that the Court of Appeals Appellate Commissioner issued in State v. Bennett 1

(A141528), which the Court of Appeals also reviewed in this case before concluding that 2

this court's decision in Fowler controlled. Mullins , 2 45 Or App at 509

- 10. For the 3

reasons explained below, we agree with the parties that the proffered legislative history 4

sheds light on the intended purpose of the notice requirement in ORS 138.071(4); 5

however, we ultimately agree with the state that the no tice received by trial counsel in 6

this case was sufficient to trigger the 30

- day appeal period set out in that statute. 7

We begin by framing the enactment history of both ORS 138.071(4), the 8

statute at issue, and ORS 138.083, the statute that grants a sen tencing court post

9

judgment jurisdiction for the purpose of either correcting or modifying the judgment in 10

certain circumstances or determining an amount of restitution to be set out in a 11

supplemental judgment. 10 The latter statute was enacted in 1989; as originally enacted, 12

the statute granted a sentencing court narrow authority for 60 days post

- judgment, 13

irrespective of any notice of appeal, to modify a judgment and sentence to correct any 14

arithmetic or clerical error. Or Laws 1989, ch 790, § 20. The le gislature amended ORS 15

138.083 three times between 1989 and 2007, and, by 2007, the statute granted a trial 16

court authority post

- judgment to award restitution in a supplemental judgment and 17

required that the trial court forward to the appellate court a copy of a corrected or 18

modified judgment, but not a supplemental judgment awarding restitution. See Or Laws 19

10 We set out the cur rent version of ORS 138.083(2)(b), which permits entry of a supplemental judgment for restitution, earlier in this opinion. ___ Or at ___ n 6 (slip op at 4 n 6).17

1995, ch 109, § 1 (adding post

- judgment authority to delete or modify erroneous 1

judgment term and requiring trial court to forward copy of amended judg ment to 2

appellate court); Or Laws 1997, ch 389, § 2 (adding provision governing supplemental 3

judgments awarding restitution, but not including requirement to forward copy of 4

amended judgment awarding restitution to appellate court); Or Laws 2003, ch 576, § 165 5

(incorporating "supplemental judgment" wording). 6

The predecessor to ORS 138.071 was part of the original 1953 Oregon 7

Revised Statutes; former ORS 138.070 (1953) simply provided that "[a]n appeal must be 8

taken within 60 days after the judgment or ord er appealed from was given or made." In 9

1971, the legislature repealed former ORS 138.070 and replaced it with ORS 138.071, 10

which shortened the appeal period from 60 to 30 days and added a provision relating to 11

appeal from disposition of a motion for new trial or motion in arrest of judgment. Or 12

Laws 1971, ch 565, §§ 20, 21. In 1985, the legislature again amended the statute, 13

replacing the requirement that the judgment or order appealed from be "given or made" 14

with the requirement that it be "entered" (a t that time, in the journal of the circuit court or 15

docket of the district court). Or Laws 1985, ch 282, § 1. 11 Before 2007, ORS 138.071 16

did not include the exception now set out in subsection (4), regarding an appeal from a 17

corrected or supplemental judgment entered under ORS 138.083. Instead, an appeal from 18

such a supplemental judgment was governed by ORS 138.0 71(1), which required

-- and 19

still requires

-- that a notice of appeal be filed not later than 30 days after the date that the 20

11 The legislature amended ORS 138.071 in other ways between 1971 and 2007, but those amend ments are not relevant to our analysis.18

judgment at issue is entered in the register. 1

In 2007, the legislature amended ORS 138.071 to add, inter alia , the new 2

subsec tion (4) that is at issue in this case; the legislature also enacted a companion 3

amendment to ORS 138.083. Or Laws 2007, ch 547, §§ 2, 3. In Bennett , the Appellate 4

Commissioner summarized the relevant legislative history regarding those collective 5

2007 a mendments as follows (new 2007 statutory text in boldface type; omitted statutory 6

text in brackets and italics): 7

"ORS 138.071(4) was enacted as part of House Bill 2322 8 (Oregon Laws 2007, ch 547), sections 2 and 3 of which are relevant 9 here. Section 3, in addition to modifying the numbering of [the 10 subsections of] ORS 138.083[]

, included the following: 11

"[(1) * * *] 12

"[* * * * *] 13

"'(b) If a sentencing court enters [an amended] a 14 corrected judgment under this [section] subsection while an 15 appeal of the jud gment is pending , the court shall 16 immediately forward a copy of the [amended] corrected 17 judgment to the appellate court. Any modification of the 18 appeal necessitated by the [amended] corrected judgment 19 shall be made in the manner specified by rules adopted by the 20 appellate court. 21

" ' [(2) * * *] 22

"'* * * * * 23

"'(c) If a sentencing court enters a supplemental 24 judgment under this subsection while an appeal of the 25 judgment of conviction is pending, the court shall 26 immediately forward a copy of the supplemental 27 judgment to the appellate court. Any modification of the 28 appeal necessitated by the supplemental judgment may be 29 made in the manner specified by rules adopted by the 30 appellate court.' 3119

"Section 2 of HB 2322, among other things, amended ORS 138.071 to 1 add what is now subsection (4), which, as noted above, provides that a 2 notice of appeal from a corrected or supplemental judgment under ORS 3 138.083 must be filed no later than 30 days after the 'defendant receives 4 notice' that the judgment has been entered. 5

"HB 2322 was introduced at the request of the Judicial 6 Department. The Department's written testimony in support of the bill 7 noted, with respect to sections 2 and 3, that: 8

"'The new Appellate Case Management System has been 9 programmed to automatically generate a notice to parties 10

on appeal when the appellate court receives a copy of a 11 corrected or supplemental judgment.' 12

"(Written testimony dated May 3, 2007, of Kingsley Click, State Court 13 Administrator, before the Senate Judiciary Committee). That testimony 14 is consistent with [Oregon Rule of Appellate Procedure (]ORAP[)] 15 8.28(2)(a), which addresses notices of appeal from corrected or 16 supplemental judgments under ORS 138.083, providing in part: 'The 17 amended notice of appeal shall state when the party received notice of 18 entry of the corrected or supplemental judgment.' 19

"Thus, the legislative scheme anticipated that (1) the trial court 20 would forward a copy of a corrected or supplemental judgment * * * to 21 the appellate court; (2) the appellate court would give the parties notice 22 of entry of the corrected or supplemental judgment; and (3) the time 23 period for filing notice of appeal from such a corrected or supplemental 24 notice w ould not begin to run until 'the defendant' received notice that 25 the judgment had been entered. Ms. Click's testimony pointed out why 26 the legislation was necessary: 27

" 'Current law requires the trial court to send a copy of a 28 corrected judgment to the appel late court (but not to the 29 parties); however, trial courts do not consistently do so in a 30 timely way, and some parties on appeal, therefore, may not 31 discover the corrected or supplemental judgment until late in 32 the appeal process. The changes preserve bot h the state's and 33 the defendant's right to appeal if the trial court fails to send 34 timely copies to the appellate court.'" 35

State v. Bennett (A141528), Order Denying Motion to Strike Respondent's Brief and 36

Granting Motion for Leave to File Reply Brief (unpu blished), 5

- 6 (issued April 22, 2011) 3720

(most brackets in original). In Bennett , the Appellate Commissioner also took judicial 1

notice of the following: 2

"[T]he case register system used by the appellate courts is programmed so 3 that, when a party is represent ed by counsel on appeal, any notice issued to 4 a party is actually issued to the attorney representing the party on appeal. 5 Indeed, when an attorney files a notice of appeal on behalf of a party, the 6 notice of appeal does not provide the party's address, a nd the court has no 7 alternative except to correspond with the attorney. See ORAP 2.05(5) 8 (requiring notice of appeal to contain the names of parties and their 9 attorneys, the addresses of attorneys, and the address of a party only if the 10 party is proceedin g without counsel)." 11

Id. at 6 (footnote omitted). Nothing in the legislative history suggests that, in enacting 12

HB 2322 (2007), the legislature intended any result beyond addressing the concerns that 13

the Judicial Department had expressed in requesting enactment of the bill. 12 14

12 The state offers additional legislative history on HB 2322 (2007), as that bill was considered in the House, to essentially same effect. For example, in her oral testimony before the House Judiciary Committee, State Court Administrator Kingsley Click stated:

" Basically, right now, after you have your regular judgment, you send up your notice of appeal, the defendant or most often the defendant ' s counsel. There is for motions that happen after the fact some err or, something that occurs after the original judgment, there ' s a need for an amended or a supplemental judgment. Under the statute

, there ' s no requirement that the trial court provide this to the defendant. And, so often there ' s a n amended judgment that ' s gone up, the defendant ' s appeal is progressing, no one knows that now they must file an amended notice of appeal. So, this would put it, really, in the appellate court ' s responsibility to provide the notice to the defendant and allows them to have the 3 0 days to send up an amended notice after that. * * * As many of you were able to hear, we have a new appellate case management system at the appellate level * * * [that] can automatically generate notices to parties. So * * * we think this will actually decrease delay instead of increase problems in this

area. "

Audio Recording, House Committee on Judiciary, HB 2322, Feb 1, 2007 , at 46:50:521 F rom the foregoing, defendant contends that

-- in accord with the Appellate 1

Commissioner's review of the legislative history in Bennett

-- to trigger the 30

- day appeal 2

period under ORS 138.071(4), a defendant's appellate counsel must receive the notice 3

that that provision contemplates. 13 In reviewing the applicable legislative history, we 4

agree that the legislature's purpose in adding new subsection (4) to ORS 138.071 and in 5

amending ORS 138.083 was to facilitate receipt of actual notice of entry of a 6

supple mental judgment by the person responsible for filing the notice of appeal

-- that is, 7

by appellate counsel ( or by the defendant, if unrepresented on appeal ) . As defendant 8

contends, the legislature intended to address persistent complications that arise wh en 9

appellate counsel is not aware of entry of a supplemental judgment and consequently 10

misses an entry

- based deadline for appeal. The legislative solution was to (1) expressly 11

require the trial court to send a copy of the corrected or supplemental judgmen t to the 12

appellate court if an appeal is pending; (2) inferentially rely on the appellate court to send 13

notice of entry of the supplemental judgment to appellate counsel or to the defendant, if 14

unrepresented on appeal; and (3) expressly base the time perio d for appeal from the 15

(statement of Kingsley Click), http://www.leg.state.or.us/listn/ (a ccessed Aug 9, 2012).

13 In Bennett , the defendant's appellate counsel had received notice of entry of a supplemental judgment entered under ORS 138.083 more than seven months after entry of that judgment in the register and then filed an amended notice of appeal within 30 days of receiving notice. State v. Bennett (A141528), Order Denying Motion to Strike Respondent's Brief and Granting Motion for Leave to File Reply Brief (unpublished), 2 (issued April 22, 2011). In Bennett , the Appellate Commissioner concluded that the amended notice of appeal was timely. Id. at 7. Bennett did not involve the factual scenario at issue in this case, in which trial counsel received notice of entry of the supplemental judgment before the date that appellate counsel rec eived such notice.22

supplemental judgment on receipt of the notice of entry of that judgment, instead of on 1

the fact of entry. 2

In this case, however, we can infer from the record that the anticipated 3

process did not occur. 14 Defendant's trial counsel, instead of his appellate counsel, 4

received notice of entry of the supplemental judgment in November 2009, more than four 5

months after entry of that judgment, and approximately four months before appellate 6

counsel received notice of entry of that judgment. 7

We again turn to the specific words of ORS 138.071(4), guided by the 8

principle that "there is no more persuasive evidence of the intent of the legislature than 9

the words by which the legislature undertook to give expression to its wishes." State v. 10

Gain es , 346 Or at 171 (internal quotation marks omitted). ORS 138.071(4) requires that 11

a notice of appeal be filed not later than 30 days after "the defendant receives notice that 12

the judgment has been entered." Notably, in enacting that subsection in 2007, the 13

legislature did not identify appellate counsel as the required recipient of the notice, if a 14

defendant is represented on appeal. See generally ORS 174.010 (in construction of a 15

statute, court must not insert what has been omitted). Instead, the legis lature used only 16

the words "the defendant," which, as noted earlier in our discussion of statutory context, 17

may include both a criminal defendant's trial and appellate counsel, each of whom acts as 18

an agent for the defendant in the course of the proceeding for which that counsel is 19

14 Our conclusion in this case does not alter that anticipated process. Rather, it decides a narrow issue about how ORS 138.071(4) operates when the anticipated process does not occur.23

appointed or retained

. 1

Here, the parties agree that defendant's trial counsel received notice of the 2

entry of the supplemental judgment in November 2009, at a time when that counsel 3

continued to serve as attorney of record fo r defendant in the trial court proceeding

. 4

Therefore, trial counsel was serving as defendant's agent on that date. Given the wording 5

that the legislature used when it enacted ORS 138.071(4), we conclude that trial counsel's 6

receipt of notice of entry of the supplemental judgment amounted to notice received by 7

"the defendant" under ORS 138.071(4) that that judgment had been entered and, 8

therefore, that the 30

- day appeal period began to run as of the date of trial counsel's 9

receipt of that notice. The amen ded notice of appeal that incorporated the supplemental 10

judgment, filed in March 2010, therefore was not timely filed. The Court of Appeals 11

correctly dismissed defendant's appeal for lack of jurisdiction. 12

The decision of the Court of Appeals is affirmed . The judgment of 13

conviction and sentence and the supplemental judgment for restitution entered by the 14

circuit court are affirmed. 15