Summary
This Oregon Court of Appeals decision grants a petition for reconsideration and withdraws a prior opinion that had resolved an indigent defendant's probation revocation appeal without requesting supplemental briefing from appointed counsel. The court holds that waiving the requirement for appointed counsel to brief arguably meritorious issues identified in a pro se submission violates the defendant's Fourteenth Amendment due process rights under Anders and Oregon's Balfour procedure. The court directs the parties to file supplemental briefs pursuant to ORAP 5.90(3) regarding whether the trial court properly revoked probation.
Topics
Practice areas
Questions Presented
- Whether the Court of Appeals erred by waiving the ORAP 5.90(3) requirement for supplemental briefing when an arguably meritorious issue was present
- Whether the trial court properly exercised its authority to revoke Dempsey’s probation
Holdings
- The court erred; waiving the ORAP 5.90(3) requirement in such circumstances violates the defendant’s due‑process rights, so the petition for reconsideration is granted, the prior opinion is withdrawn, and supplemental briefing is required.
Key quotations
“We therefore allow the petition for reconsideration, withdraw our prior decision, and, in accordance with ORAP 5.90, direct counsel for defendant to brief the issue that defendant raised in his pro se arguments to us.” (at 166)
“Anders holds that “if [the appellate court] finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” 386 U.S. at 744.” (at 167)
Factual background
In January 2018 Dempsey pleaded no contest to violating a stalking protective order and was placed on five‑year probation. He failed to report as required, resulting in a bench warrant in August 2022. After a series of missed hearings, the trial court tolled his probation and, in May 2023, revoked it, imposing a 40‑month prison term and 20 months post‑prison supervision. Dempsey appealed the revocation.
Procedural history
The trial court revoked Dempsey's probation and sentenced him to prison. Dempsey appealed; the Court of Appeals affirmed the revocation. Dempsey then filed a petition for reconsideration alleging due‑process violations in the court’s waiver of the ORAP 5.90(3) briefing requirement. The court granted the petition, withdrew its prior opinion, and directed supplemental briefing.
Remand instructions
Counsel for the defendant must file a supplemental opening brief under ORAP 5.90(3) addressing whether the trial court properly exercised its authority to revoke probation, and any other arguably meritorious issues identified; the state may then file a response.