728 March 3, 2016 No. 12

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ANTHONY JAMES LAZARIDES,

Petitioner on Review.

(CC 12114997C; CA A155380; SC S063282)

On review from the Court of Appeals.*

Submitted on the record on October 26, 2015.

Marc D. Brown, Chief Deputy Defender, Salem, filed the 

brief for petitioner on review. With him on the brief was 

Ernest G. Lannet, Chief Defender, Office of Public Defense 

Services.

Robert M. Wilsey, Assistant Attorney General, Salem, 

filed the brief for respondent on review. With him on the 

brief were Ellen F. Rosenblum, Attorney General, and Paul 

L. Smith, Deputy Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau,

Baldwin, Brewer and, Nakamoto, Justices.**

NAKAMOTO, J.

The decision of the Court of Appeals is reversed, and 

the case is remanded to the Court of Appeals for further 

proceedings.

______________

** Appeal from Malheur County Circuit Court,/ Lung S. Hung, Judge.

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
Cite as 358 Or 728 (2016) 729

Case Summary: While defendant’s criminal appeal was pending before the 

Court of Appeals, he absconded from post-prison supervision. The state moved 

for dismissal of his appeal, citing the 2011 version of ORAP 8.05(3), which, under 

certain circumstances, permitted an appellate court to dismiss the appeal of a 

criminal defendant who absconded while the defendant’s case was on appeal. 

The parties’ arguments on that motion focused on whether defendant had voluntary “surrendered” to authorities, as provided in the 2011 version of the rule. 

After defendant had been arrested and returned to supervision, the Appellate 

Commissioner for the Court of Appeals granted the state’s motion to dismiss. 

The Appellate Commissioner observed that both the state and defendant had 

cited the inapplicable 2011 version of ORAP 8.05(3), but concluded that the state 

had showed that defendant had not voluntarily surrendered. Defendant sought 

reconsideration of that ruling under the current version of ORAP 8.05(3), asserting that, when the court decided the motion to dismiss, he, indisputably, was 

no longer “on abscond status.” The Court of Appeals denied defendant’s motion 

for reconsideration and declined to reinstate his appeal after the state supplied 

additional information concerning defendant’s behavior. Held: Under ORAP 

8.05(3) (2015), an appellate court determines whether a criminal defendant is on 

abscond status as of the date it decides the motion to dismiss and based on the 

evidence before it on that date. In this case, the state failed to meet its burden 

of proving that defendant was on abscond status on the date that the Court of 

Appeals decided the motion to dismiss.

The decision of the Court of Appeals is reversed, and the case is remanded to 

the Court of Appeals for further proceedings.
730 State v. Lazarides

NAKAMOTO, J.

While defendant’s criminal appeal was pending 

before the Court of Appeals, he absconded from post-prison 

supervision, prompting the state to move for dismissal of his 

appeal. After defendant had been arrested and returned to 

supervision, the Court of Appeals granted the state’s motion 

to dismiss. Later, the Court of Appeals denied defendant’s 

motion for reconsideration and declined to reinstate his 

appeal after the state supplied additional information concerning defendant’s behavior. Under the current version of 

ORAP 8.05(3), adopted in 2015, if an appellate court “determines that the appellant is on ** * abscond status at the 

time the court decides the motion, the court may dismiss the 

appeal or judicial review.” This case addresses what motion 

is at issue when a court determines a defendant’s status. 

We conclude that “the motion” referenced in ORAP 8.05(3) 

is the motion to dismiss and agree with the parties that the 

state failed to meet its burden to prove that defendant was 

on “abscond status” at the time that the Court of Appeals 

decided that motion. Thus, the court erred in dismissing 

defendant’s appeal, and we reverse and remand.

The facts are procedural. In 2013, defendant was 

convicted of assaulting a public safety officer, ORS 163.208, 

and was sentenced to 12 months of incarceration and 24 

months of post-prison supervision. Defendant was released 

on post-prison supervision in late 2014.

By the time of his release on post-prison supervision, 

defendant had appealed his conviction and had filed his opening brief in the Court of Appeals. On January 16, 2015, the 

state moved to dismiss defendant’s appeal, citing the 2011 

version of ORAP 8.05(3), which addressed, among other 

things, the effect of a criminal defendant absconding while 

the defendant’s case is on appeal. That rule provided, 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 dismissal 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.”

ORAP 8.05(3) (2011) (emphasis added).
Cite as 358 Or 728 (2016) 731

In its motion, the state asserted, and defendant did 

not dispute, that defendant had absconded from supervision. 

Defendant had failed to report as directed by his supervision officer, and, in December 2014, the Board of Parole and 

Post-Prison Supervision (the board) had issued a warrant 

for his arrest.

Less than a week after the state filed its motion, on 

January 22, 2015, defendant was arrested and taken to the 

Yamhill County Jail to serve a 15-day sanction for violating 

conditions of his post-prison supervision. Defendant was to 

be released from custody on February 5, 2015. Once defendant was arrested, the parties’ arguments in late January 

and early February focused on whether defendant had voluntarily “surrendered” to authorities, as provided in ORAP 

8.05(3) (2011).

On February 25, 2015, the Appellate Commissioner 

for the Court of Appeals granted the state’s motion to dismiss 

defendant’s appeal. The Appellate Commissioner observed 

that both the state and defendant had cited the inapplicable 

2011 version of ORAP 8.05(3). Nevertheless, the Appellate 

Commissioner rejected defendant’s argument that, by the 

time he responded to the motion, (1) he was back in custody 

and (2) the state failed to show that he had not voluntarily 

surrendered. Rather, the Appellate Commissioner concluded, the state showed that defendant had been arrested. 

On that basis, the Appellate Commissioner dismissed defendant’s appeal.

That same day, defendant sought reconsideration of 

the Appellate Commissioner’s order under the current version of ORAP 8.05(3). The current version of the rule provides, in relevant 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 dismissal of the appeal. If the court determines that the appellant is on escape or abscond status at the time the court 

decides the motion, the court may dismiss the appeal or 

judicial review. If the court has not been advised otherwise, 

the court may infer that the appellant remains on escape 

or abscond status when the court considers and decides the 

motion.”
732 State v. Lazarides

ORAP 8.05(3) (2015) (emphasis added). Defendant asserted 

that, when the court decided the motion to dismiss, he was 

no longer on abscond status, explaining that there was no 

dispute that he had been taken into custody and, although 

he had been released from jail, there was “no evidence” that 

he was absconding.

The state contradicted defendant’s position and, 

with its response, provided evidence that defendant had 

again absconded from supervision. The state provided a 

copy of a warrant request report from defendant’s supervision officer dated February 26 indicating that defendant had 

violated conditions of his post-prison supervision by failing 

to report in person to meet with his probation supervisor on 

February 24—the day before the court granted the state’s 

motion to dismiss—and by failing to report (but calling and 

offering excuses) on two prior occasions in February. The 

state also provided a copy of the warrant for defendant’s 

arrest issued by the board on February 26.

On March 18, defendant filed a reply and notified the 

court that he was back in custody. He provided a copy of an 

inmate roster page for defendant at the Yamhill County Jail 

as proof. The roster page listed defendant’s arrest date as

March 17, 2015, and showed that he had received a second 

and longer, 26-day incarceration sanction for violating conditions of his post-prison supervision, with a release date of 

April 6, 2015. Defendant argued that, because he was again 

in custody, the court, on reconsideration, should reinstate 

his appeal.

On April 30, 2015, the Chief Judge of the Court of 

Appeals, pursuant to ORAP 7.55(4), ruled on defendant’s 

motion for reconsideration. The court declined to reinstate 

defendant’s appeal and issued an order denying reconsideration. The court observed that the parties’ submissions on 

reconsideration indicated—and defendant did not dispute—

that, at the time the Appellate Commissioner granted the 

state’s motion to dismiss the appeal on February 25, defendant had “absconded from supervision.” Through that observation, the court alluded to the basis for dismissal in ORAP 

8.05(3) (2015) that “the appellant is on *** abscond status 

at the time the court decides the motion.” The court also 
Cite as 358 Or 728 (2016) 733

rejected the position that an appellate court should reinstate an appeal on reconsideration “whenever it happens 

that the offender is caught and involuntarily taken into custody” pursuant to an arrest warrant.

On review, the dispute boils down to how an appellate court must give effect to one phrase in the second sentence in ORAP 8.05(3): “If the court determines that the 

appellant is on * * * abscond status at the time the court 

decides the motion[.]” The state concedes that an appellate 

court “lacks discretion to dismiss an appeal pursuant to 

ORAP 8.05(3) if, when it decides the motion, an appellant 

has been returned to custody.” The state further concedes 

that, on February 25, the Appellate Commissioner should 

have concluded from the information before him that, under 

ORAP 8.05(3), defendant was no longer on abscond status. 

However, the state asserts, the updated information before 

the Court of Appeals on reconsideration established that, 

as of February 25, defendant had again absconded from 

supervision by failing to report as required. The state 

argues that the court correctly considered that new information and, therefore, correctly denied reconsideration 

and exercised its authority to dismiss the appeal based on 

defendant’s abscond status as of the date that the Court 

of Appeals granted the state’s motion and dismissed his 

appeal, February 25.

Defendant contends on review that (1) as the state 

concedes, the state failed to meet its ultimate burden of proving on February 25 that he was on abscond status, given that 

he had provided the Court of Appeals with evidence that he 

had been returned to supervision; (2) no later submission 

of evidence concerning defendant’s status on February 25 

should be considered; and (3) even if the court could consider 

the state’s later-submitted evidence on reconsideration, that 

evidence established only that he had failed to report in person to his supervision officer one time, not that he was on 

“abscond status” as of February 25, as the Court of Appeals 

implicitly concluded. Accordingly, he concludes, the Court of 

Appeals lacked authority to dismiss his appeal.

Thus, the parties agree that an appellate court is 

charged with assessing the defendant’s abscond status on a 
734 State v. Lazarides

particular date—the date that it decides the motion to dismiss an appeal. But the rule is silent concerning the procedure that an appellate court must employ to make that 

assessment, and the parties disagree over whether a court 

may review additional evidence relevant to the defendant’s 

status after the court first rules on the motion to dismiss 

the appeal and, if so, whether that additional evidence in 

this case established that defendant was on abscond status. We took review to decide whether the Court of Appeals 

properly “determine[d]” that defendant was on “abscond status” under ORAP 8.05(3) on the day that the court decided 

“the motion” to dismiss his appeal. In construing the rule, 

adopted by the 2014 ORAP Committee and by joint order of 

the Chief Justice of the Supreme Court and the Chief Judge 

of the Court of Appeals, we apply the same interpretive 

method used for administrative rules, in which the goal is to 

ascertain the intent of the body promulgating the rule. State 

v. Robbins, 345 Or 28, 37-38, 188 P3d 262 (2008).

Because it is important to our resolution of the 

procedural issue, we first address the meaning of the term 

“abscond status,” beginning with the rule’s text. The term 

“abscond status,” which was added to ORAP 8.05(3) in 2015, 

is undefined. “When a disputed term in a * * * rule is undefined by that rule, we assume that it partakes of its ordinary 

meaning.” State v. Moss, 352 Or 46, 48, 279 P3d 200 (2012).

As various dictionary definitions reflect, “status” 

refers to a person’s legal condition. “Status” is defined in 

Webster’s Third New Int’l Dictionary 2230 (unabridged ed 

2002) this way: “1 a : the condition (as arising out of age, 

sex, mental incapacity, crime, alienage, or public station) of 

a person that determines the nature of his legal personality, 

his legal capacities, and the nature of the legal relations to 

the state or to other persons into which he may enter *** 

4 : an abnormal condition of a person ***.” In Black’s Law 

Dictionary 1632 (10th ed 2014), “status” is defined as

“1. A person’s legal condition, whether personal or proprietary; the sum total of a person’s legal rights, duties, liabilities, and other legal relations, or any particular group of 

them separately considered <the status of a landowner>. 

2. A person’s legal condition regarding personal rights but 

excluding proprietary relations <the status of a father> 
Cite as 358 Or 728 (2016) 735

<the status of a wife>. 3. A person’s capacities and incapacities, as opposed to other elements of personal status 

<the status of minors>. 4. A person’s legal condition insofar 

as it is imposed by the law without the person’s consent, 

as opposed to a condition that the person has acquired by 

agreement <the status of a slave>.”

Similarly, The American Heritage Dictionary of the English 

Language 1701 (5th ed 2011) defines “status,” among other 

things, as “Position relative to that of others; standing” and 

“The legal character or condition of a person or thing.”

As for “abscond,” we agree with the parties that

Robbins, in which we addressed the ordinary meaning of 

the verb in the 2007 version of ORAP 8.05(3), informs what 

it means to be on “abscond status.” As noted, the 2011 version of the rule provided that, if a defendant with a pending 

criminal appeal “escapes or absconds from custody or supervision,” then an appellate court had authority to dismiss the 

appeal. In Robbins, the issue was whether the defendant 

had “‘abscond[ed] from *** supervision’” after missing a 

single appointment with a probation officer. 345 Or at 33 

(brackets in original). We examined dictionary definitions 

of “abscond,” which focused on evasion and hiding, id., and 

concluded that “‘abscond’ requires a showing of some kind 

of conscious intent to evade or avoid legal process.” Id. at 

34. That conclusion was buttressed by the court’s case law. 

Id. at 34-37. We further stated that an appellate court may 

infer the defendant’s intent “from the nature of the defendant’s acts themselves.” Id. at 36.

In keeping with Robbins, defendant does not argue 

that the addition of the word “status” in the 2015 version of 

ORAP 8.05(3) refers to a legal status conferred by anybody 

in particular, such as the board. Nor does the text of the 

rule (or the available information about its adoption) indicate that proof an appellant’s status requires a showing of 

action taken against the defendant by the board, such as its 

issuance of a warrant for the defendant’s arrest. Given the 

common meaning of “status” and the meaning of “abscond,” 

explicated in Robbins, we conclude that the term “abscond 

status” in ORAP 8.05(3) refers to a defendant’s legal condition when that defendant is both engaging in evasive conduct 
736 State v. Lazarides

and exhibiting an intent to evade or avoid legal process, 

including, as relevant to this case, post-prison supervision.

Conversely, as the parties agree, a defendant is not 

on abscond status when that defendant has returned to custody or supervision—whether voluntarily or involuntarily. 

The history of the 2014 ORAP Committee’s adoption of the 

2015 version of the rule confirms that conclusion. As we 

explain, that history demonstrates that the committee concluded that the current version of ORAP 8.05(3) should give 

effect to a narrow policy of dismissing a criminal appeal 

of a defendant who has absconded or escaped because the 

state is not in a position to enforce a judgment, rather than 

because, through misconduct, the defendant has forfeited or 

waived the right to appeal.

The background for the committee’s decision begins 

in 2012, when we decided Moss, a case in which the state 

had moved to dismiss an appeal in accordance with ORAP 

8.05(3) (2011) because the defendant had not “surrendered” 

but rather had been arrested. 352 Or at 47. This court concluded that if, at the time the Court of Appeals decided the 

motion to dismiss, it had been informed that the defendant 

had voluntarily returned and therefore “surrendered,” then 

that court had no authority to dismiss the appeal. Id. at 

57-58. The majority of this court concluded that, under the 

2011 version of ORAP 8.05(3), a defendant may waive a statutory right to appeal and that is “what a criminal defendant 

does when he or she absconds from the jurisdiction of the 

courts once an appeal has been filed.” Id. at 58.

The dissent disagreed with the majority concerning 

the meaning of “surrendered” as used in the 2011 rule. And, 

in summing up, the dissent called on the Chief Justice and 

the Chief Judge to amend the rule:

“Where the defendant’s whereabouts are fully known to 

the court and the state, and the defendant figuratively is 

sitting in court awaiting the outcome of his or her appeal, 

there seems to me to be little or no justification to authorize dismissal of the appeal and, thus, to nullify the defendant’s statutory right to appeal. If Oregon’s rule now purports to authorize an appellate court to dismiss an appeal 
Cite as 358 Or 728 (2016) 737

even though the defendant has submitted to the state’s 

authority and is in custody, then the rule undermines the 

statutory right of appeal. To remedy the problem identified 

above, the Chief Justice and the Chief Judge should amend 

ORAP 8.05(3) to focus the rule on whether the defendant 

has returned to custody following an escape, not on whether 

the defendant surrendered to the police purely voluntarily, or 

simply has been recaptured.”

Id. at 74-75 (Durham, J., dissenting) (emphasis added).

Within several months of the decision in Moss, the 

Chief Justice and the Chief Judge issued an order temporarily adopting amendments to ORAP 8.05(3) (2011). The 

2012 temporary order amended ORAP 8.05(3) to take out 

references to the appellant’s “surrender.” First, the sentence 

concerning an appellant’s failure to surrender as a condition 

for dismissal of the appeal was amended: “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” 

was changed to “If the appellant is not in custody or under 

supervision at the time the motion is decided by the court, 

the court may dismiss the appeal or judicial review.” Second, 

the order struck the last sentence: “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.” We do not have documentation of the intent of 

the Chief Justice and Chief Judge in adopting the temporary amendment to ORAP 8.05(3), but the changes align 

with Justice Durham’s call for an amendment that would 

allow a criminal appeal to go forward based on whether the 

appellant had returned and not on whether the appellant 

had returned voluntarily. The order provided that the temporary amendment would expire on December 31, 2014, if 

not earlier adopted permanently.

The current version of the rule—which differs from 

the temporary rule—was recommended by the 2014 ORAP 

Committee after it addressed whether to adopt or modify 

the temporary rule. The April 3, 2014, committee meeting 

agenda stated the issue as “[w]hether to modify the permanent rule permitting the dismissal of appeals or other 

proceedings brought by escaped or absconded criminal 
738 State v. Lazarides

defendants to eliminate ambiguity about whether the prisoner has ‘surrendered.’” As part of its agenda, the committee provided the following explanatory note:

“Prior to the temporary amendment, the rule provided that 

the appellate court could dismiss criminal appeals (as well 

as other related matters involving criminal convictions and 

sentences) if the appellant was a criminal defendant who 

had escaped or absconded from custody or supervision and 

the defendant had not ‘surrendered’ before the court ruled. 

The term ‘surrendered’ could be ambiguous (if a defendant 

is arrested at gunpoint, has he surrendered?). It also raises 

questions about why the appellate courts are dismissing 

the matter (whether it is because the appellate court cannot enforce a judgment against a fleeing defendant, or 

whether the defendant’s escape waives the right to pursue 

an appeal). The temporary amendment removed the term 

‘surrender’ and now allows dismissal if the escaped appellant ‘is not in custody or under supervision.’”

In addition, the agenda contained the text for the 

permanent rule proposed by Ernest Lannet, then the Chief 

Deputy Defender with the Office of Public Defense Services, 

and Anna Joyce, then the Solicitor General. The agenda also 

summarized the committee’s February meeting concerning 

the rule, which explained a two-part rationale for the proposed text of a permanent rule:

“At the February 28 meeting, the committee generally 

supported the ‘narrow’ policy reason for the rule (the inability of the appellate court to enforce a judgment against a 

fleeing defendant). Concern was expressed, however, about 

the temporary rule’s use of the term ‘under supervision.’ 

Solicitor General Joyce and Chief Deputy Defender Lannet 

conferred and suggested the revision shown.”

The committee adopted the proposed text, and, 

in November 2014, the Chief Justice and the Chief Judge 

issued an order adopting permanent amendments to the 

Oregon Rules of Appellate Procedure, effective January 1,

2015, including the amendment establishing the current 

form of ORAP 8.05(3). Thus, the history of the rule’s amendment establishes that the current version of the rule was 

intended to implement the “narrow” policy rationale for 
Cite as 358 Or 728 (2016) 739

the rule—“the inability of the appellate court to enforce a 

judgment against a fleeing defendant”—as opposed to the 

broader “waiver of appeal” policy behind the 2011 version of 

the rule.

That narrow policy rationale for dismissal of a 

criminal appeal under ORAP 8.05(3) supports defendant’s 

position that, when an appellate court decides the motion, 

it is deciding the motion to dismiss, and the court reviews 

the evidence before it at that time. Under that rationale, 

whether a court should grant a motion to dismiss the appeal 

because the defendant no longer is present and subject to 

the justice system is time-specific, in a way that is far different than when a court considers whether the defendant 

committed an act in the past that will be deemed a waiver 

of the right to appeal, no matter whether he or she is then 

in custody. When the defendant’s prior waiver of the appeal 

right is the issue, the timing of the court’s determination of 

the existence of such a waiver does not matter.

And, as a practical matter, that view of the procedure to be followed under the rule encourages both the state 

and the defendant to be diligent in their presentation of evidence concerning the defendant’s status when the state files 

a motion to dismiss a criminal appeal, and it discourages 

the filing of motions to dismiss that are not factually wellgrounded. The statutory right to appeal is a significant one 

for a criminal defendant, and an erroneous determination 

of such a motion in the first instance can be more readily 

corrected on a motion for reconsideration when the record 

developed for the motion to dismiss is, effectively, closed.

We also note that, if the state has failed to meet 

its burden of rebutting a defendant’s evidence that he has 

returned to custody, the state is not barred from filing 

another motion to dismiss if circumstances have changed 

and the defendant is again on abscond status. The state 

did not refile in this case. Thus, we hold that, under ORAP 

8.05(3), an appellate court determines whether a criminal 

defendant is on abscond status as of the date it decides the 

motion and based on the evidence before it on that date.1

1 The state also argues that, if ORAP 8.05(3) did not permit the Court of 

Appeals to consider new evidence of defendant’s status on February 25 when it 
740 State v. Lazarides

In this case, the state failed to meet its burden 

of proof. The state concedes, and appropriately so, that 

on February 25, 2015, when the Appellate Commissioner 

granted the state’s motion to dismiss defendant’s appeal, 

the evidence of defendant’s abscond status was lacking. The 

state provided evidence that defendant had earlier absconded 

from supervision, but defendant established that he had 

been arrested and was sanctioned, and the state provided 

no evidence that on February 25, defendant was both engaging in evasive conduct and exhibiting an intent to evade or 

avoid supervision. Accordingly, the Court of Appeals erred, 

both when it ordered the dismissal of defendant’s appeal and 

when it failed to reinstate defendant’s appeal on reconsideration, and the court must reinstate defendant’s appeal on 

remand.

The decision of the Court of Appeals is reversed, 

and the case is remanded to the Court of Appeals for further 

proceedings.

considered and denied defendant’s motion for reconsideration, we should affirm 

nevertheless because the Court of Appeals was exercising its inherent authority 

to dismiss the appeal. We decline to address that argument because the state 

raises it for the first time on review and the motion to dismiss was litigated—and 

decided—based on ORAP 8.05(3).