State v. Ibarra

“In order to meaningfully ‘oppose’ such a motion under ORS 138.225, an appellant must file a response explaining why the arguments in the opening brief do present a substantial question of law, to the end that the state should file a briefed and the appeal be orally argued.” State v. Ibarra, 293 Or. App. 268, 272 (2018).

Defendant petitioned for reconsideration of an order granted by the Appellate Commissioner which had granted the state’s motion for summary affirmance. Defendant asserted that he had opposed the motion and, therefore, the Appellate Commissioner lacked authority to grant the state’s motion. In response, the state argued that the defendant’s appeal did not present a substantial question of law and that the court should dispose of the appeal without further briefing and without oral argument. “In order to meaningfully ‘oppose’ such a motion under ORS 138.225, an appellant must file a response explaining why the arguments in the opening brief do present a substantial question of law, to the end that the state should file a briefed and the appeal be orally argued.” State v. Ibarra, 293 Or. App. 268, 272 (2018). The Court held that in the absence of a defendant’s written opposition addressing why the state is wrong that the appeal does not present a substantial question of law, the Chief Judge and the Appellate Commissioner have authority to grant a motion for summary affirmance under ORS 138.225. Reconsideration granted; order of summary affirmance adhered to.