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 brief and the appeal be orally argued.” State v. Ibarra, 293 Or App 268, 272 (2018).

Defendant petitioned for reconsideration of an order from the Appellate Commissioner which granted the state’s motion for summary affirmance. Defendant asserted that the Appellant Commissioner lacked authority to grant the state’s motion because Defendant stated opposition to the motion to State counsel. In response, the State argued that the appeal did not present a substantial question of law and that the court correctly disposed of the appeal without further briefing or 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 . . . .” 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 Defendant's 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.