No. 49 January 31, 2024 397

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JALEN BAJAJUAN NAZEDEKY SMITH, 

aka Jalen Bajajuan Nazede Smith,

Defendant-Appellant.

Washington County Circuit Court

22CR2773; A180649

Erik M. Bucher, Judge.

On appellant’s petition for reconsideration filed June 6, 

2023, respondent’s response to petition for reconsideration 

filed October 16, 2023. Order of dismissal filed May 11, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and John Evans, Deputy Public Defender, Office of 

Public Defense Services, for petition.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Inge D. Wells, Assistant Attorney 

General, for response.

Before Egan, Presiding Judge, and Lagesen, Chief Judge, 

and Pagán, Judge.

LAGESEN, C. J.

Reconsideration allowed; order of dismissal vacated; 

appellant’s opening brief due on or before 49 days from the 

date of this decision.
398 State v. Smith
Cite as 330 Or App 397 (2024) 399

LAGESEN, C. J.

ORS 19.270 generally makes the timely filing of a 

notice of appeal a prerequisite to our jurisdiction over appeal. 

ORS 138.071(5) creates an exception to that rule, allowing a 

defendant in a criminal case to file a motion for leave to file 

a late notice of appeal. The question before us is whether we 

have jurisdiction to review and allow a timely-filed motion 

under ORS 138.071(5) if the defendant fails to submit the 

proposed notice of appeal along with the motion. We conclude that we do.

In this case, as allowed by ORS 138.071(5), defendant timely filed a motion for leave to file a late notice of 

appeal within the 90-day period provided by that statute. In 

accordance with the statute, the motion explained why the 

delay in filing should not be attributed to defendant and, 

further, identified the claim of error that defendant sought 

to pursue on appeal. Due to an efiling upload error by defendant’s lawyer, defendant’s motion was not, however, “accompanied by the notice of appeal” that defendant sought to file, 

as required by ORS 138.071(5)(c). The court alerted defendant’s lawyer to the error, and defendant’s lawyer promptly 

corrected it by submitting the omitted notice of appeal, but, 

by that time, it was a few days past the end of the 90-day 

period for submitting a motion for leave to file a late notice 

of appeal. The Appellate Commissioner denied the motion 

for that reason, concluding that defendant’s failure to submit the proposed notice of appeal within the 90-day window deprived the court of jurisdiction to grant defendant’s 

motion.

Defendant petitioned for reconsideration; the petition was referred to the Motions Department for the purpose 

of resolving the jurisdictional question in a precedential 

opinion. On reconsideration, we conclude that the requirement in ORS 138.071(5)(c) that a motion for leave to file a 

late appeal be “accompanied by the notice of appeal” is not a 

jurisdictional prerequisite to our consideration of a timelyfiled motion for leave to file a notice of appeal. We conclude, 

additionally, that defendant’s motion demonstrates that the 

motion for leave to file a delayed appeal should be allowed 
400 State v. Smith

and, accordingly, direct that the notice of appeal lodged with 

the court on February 15, 2023, be accepted for filing.

Whether the ORS 138.071(5)(c) requirement that a 

motion to file a late appeal be “accompanied by the notice 

of appeal” is a jurisdictional requirement is a question of 

legislative intent. We answer that question by examining 

the “statutory text, in context, and, where appropriate, legislative history and relevant canons of construction.” Tarr v. 

Multnomah County, 306 Or App 26, 33, 473 P3d 603 (2020), 

rev den, 367 Or 496 (2021) (internal citation and quotation 

marks omitted). Our objective is to determine what “the 

enacting legislature most likely intended.” Id.

We start with the text. The text of ORS 138.071(5) 

provides, in full:

“(5)(a) Upon motion of a defendant, the Court of 

Appeals shall grant the defendant leave to file a notice of 

appeal after the time limits described in subsections (1) to 

(4) of this section if:

“(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.

“(b) A defendant is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when 

the state appeals pursuant to ORS 138.045(1)(d).

“(c) The request for leave to file a notice of appeal after 

the time limits prescribed in subsections (1) to (3) of this 

section must be filed no later than 90 days after entry of 

the order or judgment being appealed. The request for leave 

to file a notice of appeal after the time limit prescribed in 

subsection (4) of this section must be filed no later than 90 

days after the party receives notice that the order or judgment has been entered. A request for leave under this subsection must be accompanied by the notice of appeal, may 

be filed by mail and is deemed filed on the date of mailing 

if the request is mailed as provided in ORS 19.260.

“(d) The court may not grant relief under this subsection unless the state has notice and opportunity to respond 

to the defendant’s request for relief.
Cite as 330 Or App 397 (2024) 401

“(e) The denial of a motion under paragraph (a) of this 

subsection is a bar to post-conviction relief under ORS 

138.510 to 138.680 on the same ground, unless the court 

provides otherwise.”

Pertinent to the question before us, subsection (c) 

of that provision requires that a motion for leave to file a 

delayed appeal “must be filed no later than 90 days after 

the party received notice that the order or judgment [being 

appealed] has been entered.” ORS 138.071(5)(c). Subsection 

(c) further provides that a motion requesting leave to file a 

late appeal “must be accompanied by the notice of appeal” 

that the defendant seeks leave to file. Id.

That text tells us very little about whether that 

accompaniment requirement is jurisdictional. The legislature did not speak directly to the point of whether a defendant’s failure to accompany an ORS 138.071(5) motion with 

the proposed notice of appeal would deprive the court of 

jurisdiction to consider the motion.

Context offers few additional clues but tends to suggest that the accompaniment requirement is not jurisdictional. Although the statute imposes a 90-day timeline for filing the motion, it does not impose a timeline for ruling on the 

motion. That hints, albeit faintly, in the direction of the conclusion that the legislature may have intended that the court 

would have authority to permit a defendant to correct technical defects with a timely-filed motion, such as the failure 

to accompany the motion with the proposed notice of appeal. 

Given the legislature’s omission of a timeline for resolving a 

motion under ORS 138.071, it is not implausible to think that 

the legislature intended for the court to have jurisdiction to 

grant a timely-filed motion that makes the showing required 

under ORS 138.071(5)(a), even where that motion was not 

accompanied by the notice of appeal that the defendant seeks 

to file, and then to have jurisdiction over the authorized latefiled appeal. Upon granting the motion, it would be neither 

difficult nor impractical for the court to order the defendant 

to promptly file the notice of appeal (if the defendant had not 

promptly corrected the defect already, as defendant did here).

In contrast with the text and context of the statute, legislative history points more forcefully toward the 
402 State v. Smith

conclusion that the legislature likely did not intend the 

“accompaniment” requirement to be jurisdictional. The legislative history of ORS 138.071(5) demonstrates that the primary purpose of the provision was to provide an expeditious 

remedy for criminal defendants who were deprived of their 

appeal rights through no fault of their own. Absent such a 

provision, such defendants would have to go through the 

time and expense of post-conviction proceedings to obtain 

the remedy to which they ordinarily would be entitled: a 

delayed appeal. James Nass, then-counsel to the Supreme 

Court and the Court of Appeals, testified in support of the 

measure on behalf of the courts and explained that, in such 

circumstances, it would be more expedient and economical 

simply to allow the Court of Appeals to permit a delayed 

appeal:

“The rationale for this proposal is that a defendant in that 

situation may file a post-conviction relief action and will 

almost invariably be afforded a delayed appeal. In the 

meantime, the state will have paid appointed counsel’s 

fee to prosecute the post-conviction action on behalf of the 

defendant, and will have paid for the time of the deputy district attorney * ** to defend the action as well as expenses 

attendant to the court’s adjudication of yet one more case in 

which the outcome is virtually predetermined.”

Testimony, House Committee on the Judiciary, Subcommittee 

1, HB 3348, Apr 23, 1987, Ex C (statement of James Nass).

As originally proposed, HB 3348 did not contain a 

time limit on which a motion for late appeal could be filed 

and did not require a criminal defendant to demonstrate a 

colorable claim of error in the proceedings, and the Oregon 

Department of Justice opposed the proposal because of those 

omissions. Proposed HB 3348 (Mar 5, 1987); Testimony, 

House Committee on the Judiciary, Subcommittee 1, HB 

3348, Apr 23, 1987, Tape 432 (statement of Stephen Peifer). 

In response to the concerns articulated by the Department 

of Justice, the legislature amended the bill to include (1) the 

90-day timeline for filing a motion; and (2) a requirement 

that the movant demonstrate a colorable claim of error in 

their criminal proceedings. See Or Laws 1987, ch 852, § 1; see 

also Tape Recording, House Committee on the Judiciary, HB 

3348, June 10, 1987, Tape 755 (statement of Representative 
Cite as 330 Or App 397 (2024) 403

Springer). But nothing in the legislative history suggests 

that the legislature intended those revisions to undercut the 

underlying purpose of the measure—avoiding unnecessary 

post-conviction proceedings—by precluding the correction 

of defects like the one at issue here.

In other words, nothing in the legislative history 

suggests that the legislature intended a criminal defendant 

who timely files a motion for leave to file a late appeal, but 

whose motion is defective because of failure to attach the 

proposed notice of appeal or otherwise, would have to go 

through the time and expense of post-conviction proceedings to obtain an appeal. On the contrary, the legislative 

history indicates to us that the legislature likely intended 

that our court would have jurisdiction to resolve and allow 

timely-filed motions for leave to file late appeals where, as 

here, any defect can be corrected easily, promptly and without prejudice to the interests of the state.1

In sum, although the text and context of ORS 

138.071 is inconclusive as to whether the accompaniment 

requirement is jurisdictional, the legislative history tends to 

demonstrate that it is not. To the extent the issue remains 

in doubt, one final consideration points to the conclusion 

that the requirement is not jurisdictional. As the Supreme 

Court has recognized, “[s]ubsequent to 1959 the general 

trend of our decisions passing on the effects of defects in 

appellate procedure has been to regard the defects as not 

being jurisdictional.” Pohrman v. Klamath Co. Comm., 272 

Or 390, 394, 538 P2d 70 (1975). Applying that principle, the 

Supreme Court has held “that when a notice of appeal is 

timely served and filed[,] the court has jurisdiction.” Id. at 

1 On that point, in its response to defendant’s petition for reconsideration, 

the state “acknowledges that under these circumstances, defendant is likely to 

prevail on a petition for post-conviction relief, and further, will likely be afforded 

a delayed appeal.” The state does not identity any interest in having defendant’s appeal delayed further. Rather, the state simply asserts that the court 

must adhere to jurisdictional limitations, regardless of concerns of expediency. 

Although we agree with the point that we must enforce jurisdictional limits 

(where those limits exist), the fact that the purpose of ORS 138.071(5) was to 

ensure expeditious appeals in situations like this one, counsels in favor of the 

conclusion that the legislature intended the court to have jurisdiction over timely-filed motions for leave to file a late notice of appeal, notwithstanding a defendant’s initial failure to attach the notice of appeal that the defendant proposes to 

file if granted leave to do so.
404 State v. Smith

397. An appellate court can then assess “whether the failure 

to comply with the statutory form for the notice of appeal is 

sufficiently serious and prejudicial so as to grant a motion to 

dismiss.” Id.

Although this situation is different—at issue is this 

court’s jurisdiction over a timely, but procedurally defective, 

motion for leave to file a late appeal—given the analysis 

above, we think the legislature likely intended the principle articulated in Pohrman to apply with equal force to the 

circumstances present here. Because defendant timely filed 

and served the motion for leave to file a late notice of appeal, 

we have jurisdiction to review the motion and to allow it, if 

appropriate. Defendant’s failure to accompany the motion 

with the notice of appeal he sought to file does not deprive 

us of jurisdiction over the motion.

Having concluded that we have jurisdiction over the 

motion, we now must decide whether to allow it. We conclude that defendant has demonstrated a colorable claim 

of error in the proceedings below, and that the failure to 

timely file the notice of appeal is not attributable to defendant. See ORS 138.071(5)(a). We therefore grant defendant’s 

motion for leave to file a late notice of appeal. The notice 

of appeal submitted to the court for filing on February 15, 

2023, is deemed timely filed, and the appeal shall proceed. 

Defendant’s opening brief is due 49 days from the date of 

this decision.

Reconsideration allowed; order of dismissal vacated; 

appellant’s opening brief due on or before 49 days from the 

date of this decision.