State v. Nordholm

Defendant appealed a judgment of conviction for first-degree failure to appeal, ORS 162.205, and unlawful possession of methamphetamine, ORS 475.894. Defendant assigns error to the trial court’s ruling that the conditional release agreement, previously signed by the Defendant, made it permissible for the court to commence the omnibus hearing when the defendant failed to appear. On Appeal, Defendant argued that the trial court erred because it was his statutory and constitutional right to be present during the hearing and the signed agreement could not legally have waived that right as his signature was insufficient to find that he had known what rights he was waving and understood the risks of waiving those rights. In response, the State argued that the defendant failed to preserve their issue for appeal and that the Appellate Court should not exercise their discretion. Issue preservation is a practical rule and close calls “ ‘turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.’ ” State v. Parkins, 346 Or 333, 341, 211 P3d 262 (2009). The Oregon Court of Appeals held that the requirements to preserve an issue were not met, and therefore, the issues that Defendant brought on appeal could not be determined. The Court of Appeals also rejected Defendant’s alternative argument that the Court should review the issue as plain error, finding that Defendant had ample opportunity during the trial court proceedings to argue and preserve his motion despite the trial court’s holding. Affirmed.