516 September 3, 2026 No. 37
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
COLTON JAMES GERRY SARRIA,
Petitioner on Review.
(CC 21CR41830; 22CR24774)
(CA A180013 (Control); A180014) (SC S071459)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 5, 2025.
Emma Izaguirre, Deputy Public Defender, Oregon Public
Defense Commission, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender, Criminal Appellate Section.
Jennifer S. Lloyd, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
MASIH, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court in
21CR41830 is affirmed. The judgment of the circuit court
in 22CR24774 is reversed, and that case is remanded to the
circuit court for further proceedings.
Masih, J., authored the majority opinion, in which
Bushong and James, JJ., joined, and in which Flynn, C.J.,
joined except as to “Part III-D,” and in which DeHoog, J.,
joined except as to “Parts III-A and B.”
* On appeal from Union County Circuit Court, Thomas B. Powers, Judge. 335 Or App 201, 557 P3d 1155 (2024).
Cite as 375 Or 516 (2026) 517
Duncan, J., dissented and filed an opinion, in which
Garrett, J., joined, and in which Flynn, C.J., joined in “Part
II-C,” and in which DeHoog, J., joined in “Part II-A.”
518 State v. Sarria
MASIH, J.
ORS 135.335(3) provides that, with the consent of
the court and the state, a criminal defendant may enter a
conditional plea of guilty or no contest, reserving the right
on appeal “to a review of an adverse determination of any
specified pretrial motion.” In this consolidated criminal
case, defendant entered a conditional plea of guilty to the
charge of failure to appear on a criminal citation, reserving
the right to appeal the denial of his pretrial motion that
challenged the validity of the criminal citation. Defendant’s
pretrial motion, which sought dismissal of the failure-to-appear charge, asserted that the underlying criminal citation
was invalid because it had been issued by the court instead
of a peace officer, as defendant contended was required by
the statutes governing criminal citations. The trial court
denied defendant’s motion on the merits, ruling that the
underlying criminal citation was lawful.
On appeal, the state asserted that defendant’s challenge failed both for procedural reasons and on the merits.
The Court of Appeals did not reach the merits of defendant’s
challenge to the validity of the criminal citation. Instead,
it affirmed the trial court’s ruling on the state’s alternative procedural ground, made for the first time on appeal, that
defendant’s motion to dismiss amounted to a challenge to
the sufficiency of the state’s anticipated proof and that such
a challenge is not a basis for pretrial dismissal in a criminal case. State v. Sarria, 335 Or App 201, 202, 557 P3d 1155
(2024).
We allowed review to consider whether the Court
of Appeals erred in refusing to reach the merits of defendant’s legal argument. As explained below, given the circumstances and trial court record in this case, reflecting
that the state raised no procedural objections to the pretrial
challenge and the trial court ruled on the merits, we conclude
that the answer to that question is yes. Additionally, as to
the merits of defendant’s challenge to the criminal citation,
we conclude that the citation was not lawfully issued under
the criminal citation statutes for purposes of the charge of
failure to appear. Accordingly, we reverse the decision of the
Court of Appeals in part, reverse the judgment of the circuit
Cite as 375 Or 516 (2026) 519
court, and remand that case to the circuit court for further
proceedings.1
I. BACKGROUND
In 2021, the state filed an information charging
defendant with unlawfully purchasing a firearm based on
evidence that, almost two years earlier, he had attempted
to purchase a firearm despite being prohibited from doing
so because of prior convictions. Along with the information, the district attorney’s office filed a document captioned “Affidavit in Support of Citation” and asked the trial court
to issue a citation to defendant to appear in court. The district attorney’s office drafted, and the trial court signed, a
document titled “Citation,” which stated, in part:
“IN THE NAME OF THE STATE OF OREGON,
“YOU ARE HEREBY CITED to appear in the Circuit
Court of the State of Oregon for the County of Union,
located in La Grande, Oregon, on the 21st day of September,
2021, at 9:00 a.m. of that day on the charge of Unlawfully
Purchasing Firearm (2010). Said charge is alleged to have
been committed on January 30, 2020.”
(Underline in original.) A Marion County Sheriff’s Deputy
received the citation document on September 8, 2021, and
served defendant with the same citation document on
September 16, 2021. Defendant did not appear in court on
September 21, 2021. On October 21, 2021, at the state’s
request, the trial court issued a warrant for defendant’s
arrest on the unlawful purchase charge. A sheriff’s deputy
served the warrant on defendant on November 30, 2021.
Defendant subsequently appeared in court, and the unlawful purchase case moved forward.
Thereafter, defendant moved to dismiss that case on
the basis that it had not been properly commenced before the
statute of limitations had expired.2 The day before the hear1
Although defendant also filed a notice of appeal challenging his conviction for unlawful purchase of a firearm, he does not raise a challenge to that conviction on appeal or before this court, and seeks only reversal of the judgment of his conviction for failure to appear. Accordingly, our decision does not disturb the trial court judgment in the unlawful purchase case.
2
Although the citation erroneously stated that the offense of unlawful purchase had been committed on January 30, 2020, the state’s filed information 520 State v. Sarria
ing on that motion, the state brought a new case in which
it charged defendant with one count of failure to appear on
a criminal citation under ORS 133.076.3 At the hearing on
the motion to dismiss the unlawful purchase case on statute of limitations grounds, defendant also argued that the
new failure-to-appear charge should be dismissed because it
was based on defendant’s failure to appear on the criminal
citation served in the unlawful purchase case, and the trial
court had lacked authority to issue the citation and the form
of the citation did not comply with statutory requirements.
The trial court delayed its ruling on defendant’s motions
and requested additional briefing regarding the validity of
the underlying criminal citation. Defendant subsequently
filed a motion to dismiss both the unlawful purchase and
the failure-to-appear cases.
At the hearing on those motions, defendant again
argued that the criminal citation in the unlawful purchase
case was invalid because, by statute, citations must be
issued by peace officers—not courts—and although a court
may authorize a peace officer to issue and serve a criminal citation, the court itself could not issue the citation. See ORS 133.110 (providing that, “[i]f an information or complaint has been filed,” the magistrate finds that there is
probable cause, and “the offense is subject to issuance of a
criminal citation under ORS 133.055, the court may authorize a peace officer to issue and serve a criminal citation
in lieu of arrest”); see generally ORS 133.055 to 133.073
alleged that it had occurred on October 22, 2019, and it was undisputed before the trial court that the warrant for arrest was issued one day before the expiration of the statute of limitations and was not served on defendant until after. See ORS 166.425(2) (classifying unlawful purchase of a firearm as Class A misdemeanor); ORS 131.125(8)(b) (providing a two-year statute of limitations for misdemeanors); ORS 131.135 (“A prosecution is commenced when a warrant or other process is issued, provided that the warrant or other process is executed without unreasonable delay.”).
3
ORS 133.076 provides:
“(1) A person commits the offense of failure to appear on a criminal citation if the person has been served with a criminal citation issued under ORS
133.055 to 133.076 and the person knowingly fails to do any of the following:
“(a) Make an appearance in the manner required by ORS 133.060.
“(b) Make appearance at the time set for trial in the criminal proceeding.
“(c) Appear at any other time required by the court or by law.
“(2) Failure to appear on a criminal citation is a Class A misdemeanor.” Cite as 375 Or 516 (2026) 521
(providing requirements for issuance of criminal citation).
He further argued that the citation was not issued on the
required uniform citation form and otherwise failed to comply with statutory requirements for criminal citations.4 See
ORS 1.525(3) (requiring all enforcement officers to use uniform citation forms adopted by the Oregon Supreme Court
barring certain exceptions not relevant here); but see ORS
133.073 (permitting peace officers to electronically file criminal citations with or without a complaint in a different size
or format than the uniform citation form in lieu of filing a
duplicate paper copy so long as it contains all statutorily
required information). Therefore, he maintained, he “could
not fail to appear * * * based on the unauthorized and insufficient citation.” The state argued that the court had acted
under its lawful authority because, unlike the other relevant citation statutes, ORS 133.110 does not require any
particular form or process for issuing a criminal citation.
Additionally, the state argued that, even if the underlying
unlawful purchase criminal citation had been insufficient,
a flaw in its form did not justify dismissal of the unlawful
purchase charge, because the state had also later secured
a warrant in that case before the statute of limitations had
expired. Nor did it justify dismissal of the failure-to-appear
charge, the state argued, because defendant had not been
prejudiced. However, at no point did the state contend that
the validity of the citation was an issue that could only be
addressed at trial or that defendant’s motion to dismiss the
failure-to-appear charge was otherwise impermissible.
Following the hearing, the trial court denied the
motion in each case. As to the failure-to-appear charge, the
court concluded that the underlying citation to appear on the
unlawful purchase charge was “lawful * * * both in its form
and its content,” had lawfully been served on defendant, and
included “contents [that] were sufficient to put [defendant]
on notice to be in court to answer to the citation under the
4
Specifically, in his written motion, defendant asserted that even if the court were to find that it did have the authority to issue a citation itself and that it was not required to use the forms adopted by this court, the criminal citation still suffered from a number of facial deficiencies rendering it invalid, such as the wrong incident date and year of the alleged offense, the wrong address of defendant, no address or phone number for the court, and no certification or name of the peace officer who issued the citation.
522 State v. Sarria
statute.” Having concluded that the citation had been lawfully
issued, the court rejected defendant’s argument that the twoyear statute of limitations on the unlawful purchase charge
expired before the case was properly commenced, based on
either the citation or the subsequently issued warrant.
Pursuant to a plea agreement and ORS 135.335(3),
defendant then entered an identical conditional guilty plea
in each case, reserving his right to challenge his convictions
on appeal based on the trial court’s denial of his motions to
dismiss. As contemplated by ORS 135.335(3), both the state
and the trial court consented to the conditional plea. The
plea petitions read:
“I am entering a CONDITIONAL PLEA pursuant to
ORS 135.335(3) and reserve for appeal the following pretrial rulings: The order signed on 8/25/2022 that denies
Defendant’s Motions filed into cases 21CR41830 and
22CR24772 on 2/23/2022 and 5/31/2022 that were argued
in omnibus hearings on the record on 5/25/2022 and
8/22/2022.”
(Boldface and capitalization in original.) The trial court
accepted the pleas and entered a judgment of conviction
in each case. Defendant appealed, challenging only the
trial court’s ruling denying his motion to dismiss the failure-to-appear charge based on the lawfulness of the criminal citation.
On appeal, defendant renewed his argument that
the trial court lacked the statutory authority to issue the
underlying criminal citation in the first place.5 In response,
the state disputed defendant’s understanding of the validity
of the citation. But the state also asserted, for the first time, that defendant’s argument failed on procedural grounds as
well as on the merits. The state argued that the trial court
had correctly denied defendant’s motion, which it characterized as a challenge to the sufficiency of the state’s anticipated evidence that could only be made during trial—not in
a pretrial motion to dismiss. And, the state asserted, even
in the context of a conditional plea, the Court of Appeals was
5
As previously noted, in the trial court, defendant raised additional facial deficiencies in the criminal citation. However, on appeal and before this court, defendant focuses his argument on the question of the trial court’s authority to issue a criminal citation.
Cite as 375 Or 516 (2026) 523
required to consider only whether the trial court correctly
denied the motion to dismiss, not its reasoning for its denial. In other words, the state contended, because defendant was
not entitled to the relief that he sought in his pretrial motion (dismissal), the trial court did not err in denying the motion, which was “fatal to his challenge on appeal,” regardless of
the merits of defendant’s challenge to the validity of the citation. In his reply brief and supplemental memorandum of
additional authorities, defendant asserted that, as contemplated by ORS 135.335(3), both the state and the trial court
had consented to the conditional plea, and that all involved
understood the nature of the issue defendant preserved in
his conditional plea:
“The trial court understood and ruled on the merits of the
issue defendant raised, the same issue defendant would
have raised in a stipulated facts trial. * * * Thus, this court
can and should reach the merits of the issue that defendant
preserved in his conditional plea.”
At oral argument before that court, defendant continued to draw the court’s attention to the fact that the
validity of the citation was on appeal as part of a conditional plea and that, in the context of the failure-to-appear charge,
it was a purely legal issue on which the case “rises and sets”
and about which “no one was misled or confused.” Counsel
for the state acknowledged that they had “struggled a little bit with whether to make the [alternative procedural]
argument because * * * everybody agreed to this process.”
However, they indicated that the state had wanted to “raise
the issue because this isn’t the typical way in which it is
raised.” They concluded with the concession that,
“especially in the context of a conditional plea where the
defendant entered a guilty plea with the idea that [he]
get[s] to challenge this on appeal[,] * * * it would be fair to
say everybody planned for this to be this way and that it is
the equivalent of a stipulated facts trial.”
The Court of Appeals, relying on its own precedent
regarding bases for pretrial motions to dismiss, ruled on the
alternative procedural ground, concluding that defendant
had not made a cognizable pretrial motion. Sarria, 335 Or
App at 202-03. Because it was affirming the trial court for
524 State v. Sarria
that procedural reason, the Court of Appeals “express[ed]
no opinion on the merits of defendant’s statutory arguments
related to the issuance of criminal citations.” Id. at 204.
Defendant petitioned for review, which we allowed.
II. PARTIES’ ARGUMENTS
In this court, defendant asserts that the Court of
Appeals should have rejected the state’s alternative procedural basis because it amounts to a “right for the wrong
reason” argument that fails the requirements of Outdoor
Media Dimensions Inc. v. State of Oregon, 331 Or 634, 20
P3d 180 (2001).6 More specifically, defendant argues that,
had the state raised its procedural argument before the
trial court, he could have litigated the legal issue in a myriad of other ways—such as moving to exclude the criminal
citation, proposing a jury instruction, or moving for judgment of acquittal during a stipulated facts or bench trial.
He argues further that the title or form of his motion did
not affect the substance of the issue litigated, as evidenced
by the trial court ruling on the merits that the citation was
lawful, particularly where there was a proper method that
defendant could have used to litigate the issue. See State
v. McKenzie, 307 Or 554, 561, 771 P2d 264 (1989) (holding
that the Court of Appeals should have treated defendant’s
mislabeled motion for judgment of acquittal as a premature motion in arrest of judgment and reached the merits of
the issue because, “[l]abels notwithstanding, a viable issue
[was] presented”). Defendant maintains that looking past
the form and reaching the merits of his legal challenge was
even more important in the context of an appeal following
a conditional plea entered into with the consent of both the
state and the trial court, through which the parties agreed
that defendant could obtain appellate review of his legal
argument without proceeding to trial. Therefore, “[r]efusing
to consider the merits of the reserved issues on appeal” in
this case would frustrate not only the parties’ intent, but the intent of the legislature in codifying conditional pleas.
6
The “right for the wrong reason” principle allows a reviewing court, at its discretion, “to affirm the ruling of a lower court on an alternative basis when certain requirements are met,” including, as relevant here, that the evidentiary record is sufficient to support the proffered alternative basis. Outdoor Media, 331 Or at 659. Cite as 375 Or 516 (2026) 525
For its part, the state now contends that its consent to the entry of a defendant’s conditional plea does not
constitute a stipulation that the issue reserved for review is
“reviewable on appeal or will provide a basis for reversal if any part of the trial court’s reasoning was wrong.” In the state’s
view, appellate review of a pretrial ruling reserved through
a conditional guilty plea under ORS 135.335(3) is, with two
exceptions, no different from the type of review available
in other cases.7 It argues that, because the reserved ruling
must be an “adverse determination” of a “pretrial motion,”
as opposed to an adverse ruling on a legal question, defendant is entitled to reversal of his conviction on appeal only
if the appellate court determines that the trial court was
required to have granted the pretrial motion to dismiss. And
the state maintains that defendant’s motion to dismiss the
failure-to-appear charge based on his claim that the citation
was not properly issued was a pretrial challenge to the sufficiency of the state’s evidence—a motion that cannot be made
pretrial in the form of a motion to dismiss or in any alternative form identified by defendant on appeal. Therefore,
the state reasons, because defendant’s motion could not be
brought pretrial, and because the conditional plea statute
uses the phrase “adverse determination of any specified pretrial motion,” the Court of Appeals was correct not to reach
the merits of defendant’s challenge to the criminal citation.
Thus, “[e]ven if both parties assumed that defendant’s challenge was properly raised and that the appellate courts
would review the question about the validity of the citation,
that did not require the appellate court to ignore procedural
grounds for affirming the trial court’s ruling.”
III. ANALYSIS
As mentioned above, the Court of Appeals declined
to reach the merits of defendant’s pretrial motion based on
its agreement with the state’s alternative argument that the
motion constituted an improper pretrial challenge to the sufficiency of the state’s anticipated proof. The Court of Appeals is correct that a challenge to the sufficiency of the state’s
7
The two exceptions are (1) that review on appeal is limited to the rulings that a defendant identifies in their written reservation and (2) that, if the ruling is incorrect, a defendant is entitled to remand and an opportunity to withdraw the plea without regard to whether ruling was harmless.
526 State v. Sarria
anticipated proof is not usually the basis for dismissal of a
criminal case pretrial. See, e.g., ORS 136.445 (motion for judgment of acquittal must be made after the close of the state’s
evidence or all the evidence and serves as a bar to another
prosecution for the same offense). However, in the specific
circumstances presented here, we disagree with the Court
of Appeals’ adoption of the state’s characterization of defendant’s motion and its acceptance of the state’s alternative procedural argument. As we will explain, that argument fails
the requirements of Outdoor Media, because, had the state
argued otherwise in the trial court, defendant could have
developed a different path to the legal ruling he was seeking.
Moreover, meeting the requirements of Outdoor Media is particularly important in the context of a conditional plea such
as in this case, when the unraised arguments fault defendant
for failing to raise his challenge to the citation at trial, and the state’s agreement to the conditional plea meant the case
would not proceed on the path that the state now contends
was necessary. Ultimately, given the lack of factual dispute
regarding the citation, defendant’s motion was one seeking a
ruling on a preliminary legal question—something that the
state had never disputed was appropriate for pretrial determination and reservation in a conditional plea before the trial court. Therefore, the Court of Appeals erred in refusing to
reach the merits of that preliminary legal question reserved
with the consent of the parties and the trial court.
A. Outdoor Media Requirements
As previously noted, the “right for the wrong reason” principle allows a reviewing court the discretion to
affirm the ruling of a lower court on an alternative basis
when, among other requirements, the evidentiary record is
sufficient to support it. Outdoor Media, 331 Or at 659. As
relevant here, that includes
“(1) that the facts of record be sufficient to support the
alternative basis for affirmance; (2) that the trial court’s
ruling be consistent with the view of the evidence under
the alternative basis for affirmance; and (3) that the record
materially be the same one that would have been developed
had the prevailing party raised the alternative basis for
affirmance below.”
Cite as 375 Or 516 (2026) 527
Id. at 659-60. “In other words, even if the record contains
evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different
record below had the prevailing party raised that issue, and
that record could affect the disposition of the issue, then we
will not consider the alternative basis for affirmance.” Id.
660 (italics in original).
On review, the state first disputes the characterization of its argument as an alternative basis to affirm.
It argues that it is not obvious that the trial court denied
defendant’s motion to dismiss the failure-to-appear charge
based only on the merits of defendant’s challenge to the citation, and that, therefore, Outdoor Media does not apply. The
problem with that argument, as we discuss further below, is
that the trial court clearly ruled on the merits of the motion, concluding that the citation was lawful. The state neither
raised any procedural objection to the form of defendant’s
motion nor to the trial court’s ability to resolve the legal
validity of the citation pretrial.
Alternatively, the state argues that, if the Court of
Appeals ruled on a basis not raised or decided below, it properly did so because all the requirements of Outdoor Media
are met. Defendant, on the other hand, asserts that, because
the record would have developed differently in the trial
court if the state had raised its procedural argument sooner,
the final requirement is not met. We agree with defendant.
Had the state objected at any point that defendant instead
needed to raise a different pretrial challenge or proceed
to trial to obtain reversal of the trial court’s legal ruling,
defendant would have been alerted that the state believed
he needed to use a different mechanism to get a ruling that
could be reversed on appeal, and he therefore would likely
have developed a materially different record for appeal.
The record reflects that defendant initially filed
a motion to dismiss the unlawful purchase charge, arguing it had not been properly commenced before expiration
of the statute of limitations. By the time of the hearing on
the motion, however, defendant had also been charged with
failure to appear on a criminal citation under ORS 133.076.
Thereafter, defendant sought to expand the hearing to argue
528 State v. Sarria
both the underlying issue of the validity of the criminal citation, and to also argue a motion to set aside the criminal citation.8 The state raised no objection to the form of defendant’s motions. The trial court agreed to defer ruling on defendant’s
arguments to permit the parties to brief the issues.
Following that hearing, defendant filed a new motion
to dismiss challenging the validity of the criminal citation
for purposes of both charges.9 As to the failure to appear on
a criminal citation charge, ORS 133.076 requires the state to
prove both that “the person has been served with a criminal
citation issued under ORS 133.055 to 133.076” and that “the
person knowingly fails” to appear as required. (Emphases
added.) Thus, defendant sought a pretrial determination by
the court that the criminal citation “served” on him was not
“issued” in compliance with ORS 133.055 to 133.076. In support of that motion, defendant submitted eight exhibits of the
type that one might submit in a stipulated facts trial.10
In its response, the state again argued the merits of the validity of the criminal citation. It did not make
any objection to defendant raising the legal issue through
a motion to dismiss. Nor did it dispute defendant’s premise
that the state intended to rely on the citation that defendant attached to the motion to prove the failure-to-appear
charge. And, like defendant, it submitted three exhibits of
the type that one might submit in a stipulated facts trial.11
At the hearing, the trial court noted that defendant’s presence would not be necessary, because “there are
8
Pursuant to ORS 133.069(3), a defendant may move to set aside a criminal citation issued with a form of complaint, and “the court shall set the complaint aside” if it does not conform to the requirements of that statutory provision.
9
Defendant filed an identical motion to dismiss in both the unlawful purchase case and the failure-to-appear case. He did not renew his oral motion to set aside the criminal citation under ORS 133.069, and as we will explain, arguments regarding who has the authority to issue a citation are not solely dependent upon the requirements of ORS 133.069.
10
The exhibits, with defendant’s descriptions, were as follows: Ex 101 (police report); Ex 102 (OECI register of actions); Ex 103 (Affidavit in support of warrant); Ex 104 (Firearm Instant Check); Ex 105 (LEDs return); Ex 106 (Warrant 10/21/21); Ex 107 (Citation Return rcvd 10/12/21); Ex 108 (Citation demonstrative).
11
The three exhibits were as follows: the judgment from defendant’s prior convictions for counts constituting domestic violence; the sheriff’s return of service of the citation; and the sheriff’s not served return.
Cite as 375 Or 516 (2026) 529
some facts at issue, but they’re all apparent from the court
records, so it’s not really much of an evidentiary hearing.”12
It then invited counsel for defendant to “tell [the court]
what relief that you are requesting on behalf of your client and why you think the court ought to grant that relief.”
At the request of defense counsel, in support of defendant’s
argument, the trial court received into evidence defendant’s exhibits without objection. Regarding the validity of
the citation issue, the state argued that “this court is not
required to issue a citation in conformance with the Uniform
Criminal Citation requirements” but could “actually issue
its own citation and its own form of citation so long as it
has those * * * requirements that are listed out in my brief.”
The state also requested admission of its three exhibits.13
Importantly, the state again did not raise any objections as
to the form or timing of defendant’s motion.
The trial court ruled on the merits of defendant’s
pretrial motions. It first found the citation lawful, expressly noting, “Well, I’m finding first off that the citation that was issued was lawful under the statute, both in its form and in
its content.” The court explained that “the threshold question is the lawfulness of the citation[,] and I do find that
it’s lawful under the relevant statutes of ORS 133.055, ORS
133.066. * * * [T]he contents were sufficient to put him on
notice to be in court to answer to the citation under the
statute.” It then rejected defendant’s statute of limitations
argument in the unlawful purchase case on the additional
basis that the warrant had been issued before the statute of
limitations expired and served without unreasonable delay.
It concluded by noting that, “for the reasons I just described
on the record[,] the motion to dismiss is denied. And that
motion to dismiss is denied in both these cases.” The court
then issued written orders denying the motion to dismiss
filed in both cases.
Subsequently, the trial court, the state, and defendant consented to defendant’s entry of a conditional plea
as to both charges, and defendant submitted plea petitions
12
See also ORS 136.040(1) (providing that if the charge is a misdemeanor, the trial may proceed without the defendant if the defendant appears by counsel).
13
It is not apparent whether the trial court admitted the exhibits. 530 State v. Sarria
specifying that he was reserving both pretrial rulings for
appellate review:
“I am entering a CONDITIONAL PLEA pursuant to
ORS 135.335(3) and reserve for appeal the following pretrial rulings: The order signed on 8/25/2022 that denies
Defendant’s Motions filed into cases 21CR41830 and
22CR24772 on 2/23/2022 and 5/31/2022 that were argued in
omnibus hearings on the record on 5/25/2022 and 8/22/2022.”
(Boldface and capitalization in original.) The record indicates that at no time during the conditional plea proceedings did the state suggest that there was any procedural
obstacle to the Court of Appeals reaching the merits of the
trial court’s ruling on the validity of the underlying citation.
Thus, from this record, it is clear that the trial
court ruled on the merits of defendant’s motion and that the
state made no objections to the form of defendant’s motion,
the nature of the proceeding, or to the trial court’s determination on the merits of the pretrial motion. Like the trial
court, we view defendant’s motion as one seeking a ruling
on a preliminary legal question, given that “[the] facts at
issue” were “all apparent from the court records.” Had the
state objected at any point that defendant needed to use a
different procedural mechanism to raise that issue, defendant could and likely would have created a different record.
At least some of the potential alternative paths to
a legal determination that defendant identifies—including a motion in limine to exclude the criminal citation or
a request for a jury instruction defining what constitutes
a “criminal citation issued under ORS 133.055 to 133.076”
for purposes of the charge of failure to appear—seem to
fall within the scope of the types of matters that can be
addressed by the trial court pretrial. See, e.g., ORS 135.037
(describing scope and purpose of an omnibus hearing).14
14
ORS 135.037(1) requires a trial court, upon the motion of any party, to order an omnibus hearing “[a]t any time after the filing of the accusatory instrument * * * and before the commencement of trial.” The express purpose of an omnibus hearing is to “rule on all pretrial motions and requests, including but not limited to” challenges to the accusatory instrument or the suppression of evidence, among other things. ORS 135.037(2). Importantly, ORS 135.037(3) provides that, at the time of the omnibus hearing, the court “may also consider any matters that will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or that are otherwise appropriate under the circumstances Cite as 375 Or 516 (2026) 531
Obtaining such a ruling pretrial would allow the parties
to make informed decisions as to how to proceed, including proceeding to a stipulated facts trial, negotiation of
a conditional guilty plea, or other resolution of the case.
However, we also recognize that those alternatives would
not necessarily result in a dismissal of the case unless the
ruling either triggered the court to do so on its own motion,
or it prompted the district attorney to exercise their right
to apply for dismissal. See ORS 135.755 (“The court may,
either of its own motion or upon the application of the district attorney, and in furtherance of justice, order the proceedings to be dismissed.”).
The other procedural mechanism identified by
defendant to get a ruling on the validity of the citation on
which the state relied—i.e., a motion for judgment of acquittal during a stipulated facts or bench trial—by definition is
not resolved pretrial. See ORS 136.445 (motion for judgment
of acquittal must be made after the close of the state’s evidence or all the evidence). But defendant maintains that it is
a mechanism that would have been available to him had the
state objected to the procedural mechanism of a motion to
dismiss or not consented to resolution of the case through a
conditional guilty plea where defendant could challenge the
trial court’s ruling without proceeding to trial.
We agree. Defendant’s arguments under Outdoor
Media are further supported by the conditional plea statute,
ORS 135.335(3), because, in this case, with the consent of
the state and the trial court, defendant gave up the right to
create a record at trial. We therefore turn to a review of that statute. As we will explain next, we conclude that, by creating an exception to the limits to appeal for defendants who
enter guilty or no-contest pleas, the legislature created a
path to appellate review of certain legal issues that a defendant otherwise could raise only after proceeding to trial.
And with the state’s agreement to that path, defendant did
not pursue the other possible paths to securing a ruling on
the citation that would be reviewable following a judgment.
to facilitate disposition of the proceeding.” (Emphasis added.) This court has also recognized that the legislative intent of the statute is “to provide an early, coordinated resolution of legal issues in criminal cases.” State ex rel Carlile v. Frost, 326 Or 607, 616, 956 P2d 202 (1998).
532 State v. Sarria
B. Conditional Plea Statute, ORS 135.335(3)
ORS 135.335 appears in the chapter of the Oregon
Revised Statutes that relates to arraignment and pretrial
provisions. It governs the pleas available to a criminal defendant. ORS 135.335(1) lists the pleas that may be entered:
guilty, not guilty, and no contest. In 1999, the legislature
amended ORS 135.335 to add a subsection (3), creating an
additional type of plea: the conditional plea. Or Laws 1999,
ch 134, § 1. ORS 135.335(3) provides:
“With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest
reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on
appeal may withdraw the plea.”
The text of the statute begins with the concept of consent.
For a defendant to enter a conditional plea, it contemplates
the consent of both the trial court and the state. To memorialize that the plea was in fact conditional and to specify
the legal ruling that is the basis for the pursuit of the conditional plea, the plea must set out—in writing—the adverse
determination that the defendant is reserving the right to
appeal. The writing requirement for the reservation is followed immediately by the words “the right, on appeal * * *,
to a review,” indicating that what the written reservation
is designed to preserve is a right to review on appeal. The
scope of that appellate right to review is set by the next
clause—i.e., “of an adverse determination of any specified
pretrial motion.”
According to the witnesses who appeared before the
legislature, the purpose of the conditional plea statute legislation was to facilitate efficient resolution of cases where
defendants sought to preserve for appeal legal challenges to
pretrial issues, without requiring the parties to go through
a stipulated facts trial. The legislature adopted the conditional plea statutory provision as part of House Bill (HB)
2293 in 1999. Or Laws 1999, ch 134, § 1. The bill was introduced at the suggestion of the past-chairman of the Oregon
State Bar Criminal Law Section, Charles Kochlacs. Tape
Recording, Senate Committee on Judiciary, HB 2293, Feb 15,
Cite as 375 Or 516 (2026) 533
1999, Tape 36, Side A (statement of Jesse Barton on behalf
of Oregon State Bar Criminal Law section); see also Tape
Recording, House Committee on Judiciary - Criminal Law,
HB 2293, Jan 21, 1999, Tape 5, Side A (statement of Ingrid
Swenson, Oregon Criminal Defense Lawyers Association)
(explaining that section suggested the measure because
“they thought [it] would be useful to both prosecutors and
defense attorneys”). In her testimony before the House
Committee, Swenson explained the then-current practice in
criminal cases where a defendant sought to preserve a pretrial legal challenge for appeal:
“[I]f, for example, a defendant feels that he or she has a
very strong legal argument with respect to evidence or
some other issue in the case, which that individual does
not wish to waive—doesn’t want to give up their right to
argue that evidentiary issue—in order to preserve it but
not contest the truth of the charges and going through the
process of the trial—we go through a procedure called a
stipulated facts trial.”
Tape Recording, House Committee on Judiciary - Criminal
Law, HB 2293, Jan 21, 1999, Tape 5, Side A (statement of
Ingrid Swenson). She commented that she believed that it
“would serve the convenience of both sides and the court to
use this conditional plea procedure in lieu of the stip[ulated] facts [trial]” and would probably save time for the court. Id.
Representative Prozanski also noted that he felt that the bill
would create cost savings for all parties and the court and
would be much quicker than trying to preserve any potential error following trial. Id. (statement of Representative
Floyd Prozanski). Thus, the legislative history of ORS
135.335(3) supports defendant’s argument that the legislature intended to provide defendants a more efficient way to
seek appellate review of legal issues without going through
a stipulated facts trial.
That conclusion is supported further by the legislature’s simultaneous amendment of the statutory provision
governing appellate review of criminal convictions following
the entry of a plea. Compare former ORS 138.050(1) (1995)
(limiting appellate review following a guilty or no contest
plea to certain sentencing issues), with former ORS 138.050(1)
534 State v. Sarria
(1999) (adding exception for conditional pleas).15 By adding to ORS 138.050(1) (1999) the introductory clause, “Except as
otherwise provided in ORS 135.335,” the legislature clarified its intent to set apart appellate review of any specified
pretrial motions reserved pursuant to ORS 135.335(3) as
an exception to the rule that only certain sentencing issues
could be reviewed in appeals following a guilty or no contest plea. Or Laws 1999, ch 134, § 3; see PGE v. Bureau of
Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993)
(explaining that a statute’s context includes other related
statutes). Thus, as previously noted, the exceptions to the
limits to appeal for defendants created a path to appellate
review previously unavailable without proceeding to trial.
In short, the conditional plea provides a vehicle for
defendants to efficiently preserve challenges to pretrial legal determinations without the parties having to go through a
stipulated facts trial, while also allowing a defendant to
withdraw their plea and have their conviction vacated if they
prevail on their legal challenge. See State v. McAnulty, 356
Or 432, 445-46, 338 P3d 653 (2014), cert den, 577 US 829,
136 S Ct 34, 193 L Ed 2d 48 (2015) (explaining enactment of
ORS 135.335(3) had those “two primary effects”). The statute
requires only that—with the consent of both the trial court
and the state—a defendant reserve their right to appeal in
writing and expressly indicate, in some fashion, the pretrial
adverse determination they intend to challenge.16 Moreover,
15
Former ORS 138.050(1) (1995) and ORS 138.050(1) (1999) have since been repealed. Or Laws 2017, ch 529, § 26. In 2017, the legislature enacted ORS 138.105(5)(a), granting the appellate court the “authority to review the trial court’s adverse determination of a pretrial motion reserved in a conditional plea of guilty or no contest under ORS 135.335.” Again, the cross-reference to ORS 135.335 reinforces the implication that, at least as to conditional pleas, the parties’ consent to reserve a particular adverse determination of a pretrial motion has been intended by the legislature since its adoption to replace traditional procedural bars to appellate review.
16
The dissent faults the majority as suggesting that its conclusion is based on ideas of estoppel or the enforcement of plea agreements, without undertaking a separate analysis of those issues. 375 Or at 554-55 (Duncan, J., dissenting). See, e.g., State v. King, 361 Or 646, 666-70, 398 P3d 336 (2017) (affirming the trial court’s ruling granting the defendant’s motion to dismiss and highlighting the unique character of plea agreements, the constitutional rights that are waived by a criminal defendant in reliance of that agreement, and the binding of the state to the agreement that it entered into); State v. Tannehill, 341 Or 205, 212, 141 P3d 584 (2006) (holding that the conditional plea statute “permits the defendant to withdraw the entire plea and rescind the agreement if one of the premises Cite as 375 Or 516 (2026) 535
the statute also contemplates that a defendant’s decision to
enter no contest or guilty pleas in this context is predicated
on an understanding that the defendant could potentially
prevail on appeal and be able to withdraw their plea to any
charge subject to the conditional plea agreement. As this
court stated in State v. Dinsmore, 342 Or 1, 7, 147 P3d 1146
(2006), “[T]he only ‘condition’ expressly associated with the
conditional plea statute is the one allowing a defendant to
withdraw a plea if the defendant’s pretrial challenge is ultimately successful on appeal.”
Because the state agreed to the conditional plea
without ever identifying a procedural challenge to the ruling that defendant preserved for appeal, defendant had no
opportunity to create the record—a stipulated facts trial—
that could have overcome the procedural challenge that the
state now raises. In other words, we readily conclude that
defendant might have created a different record below had
the state raised its procedural argument before the trial
court. See Outdoor Media, 331 Or at 660 (recognizing that,
“if the losing party might have created a different record
below had the prevailing party raised that issue, and that
record could affect the disposition of the issue, then we will
not consider the alternative basis for affirmance” (emphasis in original)). We therefore cannot accept the state’s new
argument. In reasoning that it could not reach the merits of
defendant’s challenge to the trial court’s pretrial legal determination for procedural reasons, the Court of Appeals failed
to adhere to the requirements of Outdoor Media.
C. Decision to Reach the Merits of Defendant’s Argument
Having decided that the state’s procedural argument
is not an alternative basis for affirming the trial court, we
must determine whether we should reach the merits of defendant’s challenge or remand to the Court of Appeals to address
the question of whether the trial court erred in its ruling
that the citation was lawful. Although we could remand the
issue to the Court of Appeals to decide that question in the
on which the parties entered into the plea agreement is no longer valid”). In an appropriate case, we should address those issues. The parties in this case, however, did not fully brief those additional arguments, and we find sufficient support in defendant’s Outdoor Media and other conditional plea statute arguments without needing to apply those principles.
536 State v. Sarria
first instance, we also have discretion to reach the issue. See, e.g., State v. Meiser, 369 Or 347, 361, 506 P3d 402 (2022) (“As a matter of judicial efficiency, this court sometimes resolves
issues * * * rather than remanding to the Court of Appeals to
resolve remaining issues.”). We agree with the dissent about
the important role that the Court of Appeals plays in resolving a large volume of legal disputes in our justice system,
including in criminal citation cases. 375 Or _557-60 (Duncan,
J., dissenting). However, we find State v. Kenny, 262 Or App
702, 327 P3d 548 (2014), on which the dissent relies, to be
distinguishable. See 375 Or 560-64 (Duncan, J., dissenting).
And, as we recognized recently in State v. Roberts, 374 Or
821, 841, 584 P3d 1217 (2026), “[c]riminal prosecutions carry
significant consequences for defendants”—even for a defendant who may not be in custody. Just as with pending criminal charges, a record of conviction can affect many aspects of
a defendant’s life, including their personal and employment
relationships. Id. Therefore, in the interests of efficient and prompt resolution of the narrow legal issue raised by this
defendant in this uniquely litigated conditional plea case, we
have found it appropriate to take up the merits of defendant’s
citation challenge.
D. Validity of the Criminal Citation
We begin with ORS 133.076 and the underlying statutory framework governing criminal citations. Defendant
was charged with failure to appear on a criminal citation
pursuant to ORS 133.076. That statute provides:
“(1) A person commits the offense of failure to appear
on a criminal citation if the person has been served with a
criminal citation issued under ORS 133.055 to 133.076 and
the person knowingly fails to do any of the following:
“(a) Make an appearance [at the time, date and court
specified in the citation].
“(b) Make appearance at the time set for trial in the
criminal proceeding.
“(c) Appear at any other time required by the court or
by law.
“(2) Failure to appear on a criminal citation is a Class
A misdemeanor.”
Cite as 375 Or 516 (2026) 537
(Emphasis added.) Thus, for purposes of the failure-to-appear statute, the citation must be issued under ORS 133.055
to 133.076. Those statutes, in turn, provide the statutory
requirements and procedures for the issuance of criminal
citations.
The parties agree that, to establish the charge of
failure to appear on a criminal citation under ORS 133.076,
the state must prove that (1) defendant was served with a
criminal citation issued under ORS 133.055 to 133.076, and
(2) he knowingly failed to appear on the date and at the time
that the citation specified. The parties disagree, however, as
to the meaning of the phrase “issued under ORS 133.055 to
133.076.”
Defendant maintains that only peace officers have
the statutory power to issue a criminal citation and that, in
this case, the court issued the citation on a form prepared by
the district attorney, making it invalid. See ORS 133.055(1)
(“A peace officer may issue a criminal citation * * *.”); ORS
133.110 (allowing a magistrate to “authorize a peace officer
to issue and serve a criminal citation” for applicable offenses).17 He thus contends that he could not fail to appear on a
citation that was not validly issued and served by a peace
officer. Further, he raises constitutional separation of powers concerns with any construction of the phrase “issued under”
that would permit the court to issue an accusatory instrument. See generally Or Const, Art III, § 1 (“The powers of the
Government shall be divided into three separate branches,
the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official
duties under one of these branches, shall exercise any of the
functions of another, except as in this Constitution expressly
provided.”).
17
ORS 133.005(3) defines “peace officer” to mean: “[a] member of the Oregon State Police;” “[a] sheriff, constable, marshal, municipal police officer or reserve officer or a police officer commissioned by a university under ORS 352.121 or 353.125;” “[a]n investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state;” “[a]n investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon;” “[a] humane special agent as defined in ORS 181A.345;” “[a] regulatory specialist exercising authority described in [alcoholic liquors and cannabis statutes];” [a]n authorized tribal police officer as defined in ORS 181A.940;” and “[a] judicial marshal appointed under ORS 1.177 who is trained pursuant to ORS 181A.540.” Magistrates are not included in that definition.
538 State v. Sarria
The state responds that the phrase “served with
a criminal citation issued under ORS 133.055 to 133.076”
means only that the state must prove that the citation served
was of a type authorized by those statutes.18 In the alternative, it argues that a peace officer “issues” a citation by delivering it to a person, even if the citation itself was signed by a magistrate. Finally, it maintains that there is no constitutional separation of powers concern with the court having
signed the citation in this case, because the district attorney also filed an information when it sought the issuance of the
criminal citation.
It is true that, when a statute is capable of more than
one plausible interpretation, we will avoid an interpretation
that raises a constitutional problem. Bonner v. American
Golf Corp. of California, 372 Or 814, 844, 558 P3d 812 (2024)
(citing State v. Stoneman, 323 Or 536, 540 n 5, 920 P2d 535
(1996)). However, this case does not require that we resort to
that maxim of statutory interpretation or address the constitutional principles defendant invokes. As will be explained,
the statutes governing criminal citations give peace officers
the power to issue criminal citations and give the courts, in
certain circumstances, the discretion to authorize a peace
officer’s exercise of that power in lieu of arresting a person, but they do not give courts the authority to issue criminal
citations directly, as the court did in this case.
The parties’ dispute centers on the phrase “issued
under.” The legislature did not define “issued under” for
18
Although the state relied on Kenny, 262 Or App at 702, before the Court of Appeals, it does not do so before this court. The dissent cites the Court of Appeals’ analysis in that case to support its argument for remand as well as its conclusion on the merits. 375 Or 560-64, 569-71 (Duncan, J., dissenting). As previously noted, unlike the dissent, we do not view Kenny as resolving the question of who has legal authority to issue a criminal citation. There was no question that the peace officer in that case had both personally filled out and served the defendant with a criminal citation for first-degree criminal mischief on a uniform citation form. See Appellant’s Opening Brief at 4, State v. Kenny, 262 Or App 702, 327 P3d 548 (2014) (CA A148505) (so noting). The Court of Appeals ultimately concluded that the “[t]he state proved that defendant was served with a criminal citation for first-degree criminal mischief. And, under ORS 133.055, one of the statutes enumerated in ORS 133.076, a peace officer has authority to issue a criminal citation to a person.” Kenny, 262 Or App at 709 (emphasis added; footnote omitted). Thus, Kenny is factually distinguishable from this case. It is likely for that reason that the parties did not fully brief that case and instead focused on the text, context, and legislative history of the relevant statutes. We do the same. Cite as 375 Or 516 (2026) 539
purposes of ORS 133.076; thus we must employ our usual
method for statutory construction, considering the text in
context, together with any helpful legislative history, to
determine its meaning. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009); see also ORS 174.020(1)(a) (“In the construction of a statute, a court shall pursue the intention of
the legislature if possible.”).
The text of ORS 133.076(1) provides that a person
commits the offense of failing to appear on a criminal citation if the person was “served with a criminal citation issued under ORS 133.055 to 133.076.” In turn, ORS 133.065 expressly provides that “[i]f a criminal citation is issued as described in
ORS 133.055, the peace officer shall serve one copy” on the
person arrested. A person who has been served with a criminal citation is required to appear before a magistrate “at the
time, date and court specified in the citation, which shall not be later than 30 days after the date the citation was issued.”
ORS 133.060(1) (emphasis added).19 Thus, issuance appears to
include some action that precedes the delivery of the citation
to the individual, which constitutes service.
“Issue” means “[t]o be put forth officially” or “[t]o
send out or distribute officially.” Black’s Law Dictionary 995
(12th ed 2024). See Stull v. Hoke, 326 Or 72, 78, 948 P2d 722
(1997) (explaining that, where terms have well-defined legal
meaning, we typically give them that meaning). “Under,” in
turn, means “required by : in accordance with : bound by.”
Webster’s Third New Int’l Dictionary 2487 (unabridged ed
2002). See also Black’s Law Dictionary 1842 (defining “under”
as, among other things, “[a]ccording to; in accordance with;
pursuant to”). The term “under” is followed immediately by
a series of statutes that include a variety of content, form,
and service requirements for criminal citations. Thus, the
plain text of ORS 133.076, in context, appears to require
that, to serve as the basis of a failure-to-appear charge, a
criminal citation be officially put forth in accordance with
the criminal citation provisions, as authorized by, ORS
133.055 to 133.076.
19
ORS 133.060(1) has been amended since defendant was issued his citation in this case; however, because those amendments do not affect our analysis, we refer to the current version of the statute.
540 State v. Sarria
Further contextual clues refute the state’s argument that a peace officer “issues” a citation when the officer “delivers” the citation to the person charged. The legislature’s repeated use of the phrase “issue and serve” in
the citation statutes indicates that it did not intend for the
issuance of a criminal citation and the service of a criminal
citation to mean the same thing. Rather, a peace officer may
issue a citation and must, in addition, serve that citation on
the cited individual.
We generally assume that the legislature intends
different terms used in related statutes to have different
meanings, unless there is direct evidence of contrary legislative intent. Gadalean v. SAIF, 364 Or 707, 719, 439 P3d
965 (2019). In the context of the criminal citation statutes,
the legislature has repeatedly used the terms “serve” and
“deliver” as separate from and in addition to “issue”:
• ORS 133.055(1) (explaining that “[a] peace officer may
issue a criminal citation” and “shall deliver a copy” to
the person);
• ORS 133.060(3)(a) (providing that, during period of
statewide emergency, the date specified in citation “on
which a person served * * * shall appear may be more
than 30 days after the date the citation was issued”);
• ORS 133.065 (“If a criminal citation is issued as
described in ORS 133.055, the peace officer shall serve
one copy on the person arrested * * *.”);
• ORS 133.070(1) (giving peace officer discretion to issue
and serve a criminal citation in “any instance in which
a person is subject to arrest without a warrant for violation of an ordinance”);
• ORS 133.076(1) (“A person commits the offense of failure to appear on a criminal citation if the person has
been served with a citation issued under ORS 133.055
to 133.076 * * *.”);
• ORS 133.110 (“[T]he court may authorize a peace officer
to issue and serve a criminal citation in lieu of arrest.”)
(Emphases added.)
The legislature’s use of the conjunction “and”
between the terms “issue” and “serve” also shows an intent
Cite as 375 Or 516 (2026) 541
for the two words to function as two different and necessary
actions a peace officer must take. See, e.g., Preble v. Dept. of Rev., 331 Or 320, 325, 14 P3d 613 (2000) (use of word “and”
to connect three requirements indicates that they are not
alternatives).20
Thus, we conclude that encompassed in the term
“issue” is the exercise of authority provided under ORS
133.055 to 133.076. That might include, for example, filling
in the blanks in a uniform citation form or other type of
form meeting the statutory requirements for criminal citations; signing the form; certifying in writing that the officer has probable cause or sufficient grounds to believe that the
individual committed the offense; providing officer identification information in writing; and providing written notice
to the defendant that, because the officer has exercised this
authority, defendant is required to appear and a warrant
for arrest will be issued if they fail to do so. As previously
alluded to, all of these are actions that precede the delivery
of the citation to the individual, and as we demonstrate next,
they proceed from the authority provided solely to peace officers by the criminal citation statutory scheme.
One such statutory provision is ORS 133.055(1), the
first statute in the series referenced in ORS 133.076, which
provides as follows:
“A peace officer may issue a criminal citation to a person
if the peace officer has probable cause to believe that the person has committed a misdemeanor or * * * any felony that is
subject to misdemeanor treatment under ORS 161.705. The
peace officer shall deliver a copy of the criminal citation to
the person. The criminal citation shall require the person
to appear at the court of the magistrate before whom the
person would be taken pursuant to ORS 133.450 if the person were arrested for the offense.”
(Emphases added.) The noun “peace officer” is the subject
of the first two sentences and serves a nominative function.
20
Similarly, the crime of giving false information to a peace officer in connection with a citation or warrant provides that the crime is committed when, “in connection with a citation or warrant[,] * * * the person knowingly uses or gives” false information to the officer when “[t]he peace officer is issuing or serving the person a citation under authority of ORS 133.055 to 133.076 or ORS chapter 153[.]” ORS 162.385(1).
542 State v. Sarria
A noun serving a nominative function controls the verb and
usually precedes it. The Chicago Manual of Style, ch 5.20
(8th ed 2024). Thus, the emphasized text authorizes a peace
officer—not a court or a magistrate—to issue a criminal
citation if the peace officer has probable cause to believe that the person has committed a relevant crime. The text also
requires the peace officer to deliver a copy of the criminal
citation to the person charged. Nothing in the text of ORS
133.055 authorizes a court—or any entity that is not a peace
officer—to issue a criminal citation directly.
The text of other related statutes in the series provides further contextual support for the conclusion that the
legislature authorized peace officers—not courts or magistrates—to issue criminal citations. ORS 133.066(1) provides
that a criminal citation “may include a complaint or may be
issued without a form of complaint,” pursuant to the requirements of ORS 133.068 (criminal citation issued without complaint) or ORS 133.069 (criminal citation issued with complaint). In turn, both ORS 133.068 and ORS 133.069 require
that—in either scenario—the citation contain “the name of
the peace officer who issued the citation.” ORS 133.068(3);
ORS 133.069(1)(d) (emphasis added).
The text of ORS 133.110, on which both parties
relied before the trial court, also supports that interpretation. ORS 133.110 authorizes a magistrate to issue “a warrant of arrest” if “the magistrate is satisfied that there is
probable cause to believe that the person charged in an information or complaint has committed the crime charged.”21
(Emphasis added.) However, that statute further provides
that, if the offense is subject to issuance of a criminal citation under ORS 133.055, “the court may authorize a peace
officer to issue and serve a criminal citation in lieu of arrest.” (Emphasis added.) Thus, the court “may authorize” a peace
officer to “issue and serve” a criminal citation, but the statute does not give a court the power to issue a criminal citation
directly, and to read it as such would cause the phrase “may
authorize” to become surplusage. State v. Clemente-Perez,
21
“Magistrate” is defined as “an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime,” ORS 133.020, and includes circuit court judges, ORS 133.030(3).
Cite as 375 Or 516 (2026) 543
357 Or 745, 755, 359 P3d 232 (2015) (“As a general rule, we
* * * assume that the legislature did not intend any portion
of its enactments to be meaningless surplusage.”); see also
Jordan v. SAIF, 343 Or 208, 217, 167 P3d 451 (2007) (“[The]
use of a term in one section and not in another section of
the same statute indicates a purposeful omission.” (Internal
quotation marks omitted.)). The legislative history supports
that, since the inception of the criminal citation framework, the legislature has required that criminal citations be
issued and served by peace officers—not magistrates.
House Bill (HB) 1074 (1969), the legislation that
created the framework, was introduced to handle the growing number of misdemeanor charges and the acceptance
of the use of misdemeanor citations throughout the country. The legislation introduced the citation as an alternative to “bond-jailing” by allowing an individual alleged to
have committed a misdemeanor to be “brought into court by
one of two methods[,] * * * by a citation issued by the police
officer, or by a complaint being filed and a warrant issued
by the court,” Minutes, House Committee on Judiciary, HB
1074, Jan 29, 1969, 2 (statement of Lee F. Cumpston, State
Director on the Oregon Council on Crime and Delinquency),
and sought to establish the same procedure that had been
established for traffic citations, id. at 4 (statement of Richard A. Braman, Portland City Police Department) (“[T]his bill
should establish the same procedure as traffic citations.”).
22
Thus, the legislation created an exception to the requirement that persons subject to arrest on a misdemeanor or
certain felony charges be taken into custody before trial
by giving a peace officer the discretion to “issue and serve
a citation” to a person who would otherwise be subject to
arrest, in lieu of taking them into custody. Or Laws 1969,
ch 244, § 2. See State v. McColly, 364 Or 464, 476, 435 P3d
715 (2019) (explaining history of citation framework as alternative to pretrial custody). The original citation procedure
was made applicable “in any instance” where a peace officer
22
The legislature first enacted statutory requirements for traffic citations in 1959, including “the date on which the citation was issued and the name of the arresting officer”; a complaint wherein the arresting officer certified that they had reasonable grounds to believe that the individual committed the offense; and a summons informing the cited individual that the complaint would be filed. Or Laws 1959, ch 664, § 11.
544 State v. Sarria
made an arrest without a warrant; a person was arrested
by a private party and delivered to a peace officer, or; where
“the magistrate before whom an information or complaint is
filed authorize[d]” the issuance of a citation. Or Laws 1969,
ch 244, § 1.
The legislature also amended ORS 133.110, which
had previously only authorized a magistrate to issue a warrant of arrest, to allow the magistrate to authorize a peace
officer to issue and serve a citation in certain circumstances:
“If the magistrate is satisfied that the crime complained
of has been committed and that there is probable cause to
believe that the person charged has committed it, he shall
issue a warrant of arrest. However, on a misdemeanor
charge or on a felony charge which may be deemed a misdemeanor charge after sentence is imposed he may authorize a
peace officer to issue and serve a citation as provided in ORS
133.055.”
Or Laws 1969, ch 244, § 3 (emphasis in original). Legislative
history indicates that it was contemplated that this authority would be exercised after a complaint or information had
been filed and “a warrant is about to be issued,” and that
the magistrate would “be the one who makes a determination as to whether it should be a citation” that is issued or
a warrant of arrest. See Tape Recording, House Committee
on Judiciary, HB 1074, Feb 5, 1969, Tape 4 (committee discussion). Representative Young noted that the statute would
grant the court the discretion to say, “well either go out
and arrest him or you go issue a citation.” Id. (statement of
Representative Young) (emphasis added). Thus, the magistrate was given the discretion to either issue a warrant of
arrest—something that a peace officer has no authority to
do—or, alternatively, to authorize a peace officer to issue
and serve a citation in lieu of arrest. However, it did not
grant the magistrate the authority to issue a citation itself.23
23
That understanding of authority is supported by the legislative history pertaining to related statutes enacted immediately following HB 1074, the legislation creating the criminal citation framework. In 1969, the Criminal Law Revision Commission, while in the process of revising the Oregon Criminal Code, drafted language for a “failing to respond to an appearance citation” statute, which explained that, as used for that offense, “an appearance citation means any written notice issued by a peace officer or other non-judicial public servant authorized by law to issue the same.” Criminal Law Revision Commission, Cite as 375 Or 516 (2026) 545
Notably, the text of ORS 133.076 does not include a
failure to appear on a citation issued under ORS 133.110. A
citation authorized by ORS 133.110 only becomes the basis
for a failure-to-appear charge through the cross-reference to
ORS 133.055.24 See ORS 133.076(1) (“A person commits the
offense of failure to appear on a criminal citation if the person has been served with a criminal citation issued under
ORS 133.055 to 133.076 * * *.”). But for citations issued by a
peace officer under the statutes preceding ORS 133.110 and
referenced in ORS 133.076, the legislature has enacted two
different but related provisions to ensure the ability to command a defendant’s appearance if they did not appear at the
time cited. First, if a cited person fails to appear at the date, time, and court specified in the citation and a complaint or
information is filed, “the magistrate shall issue a warrant
of arrest immediately upon the person’s failure to appear.”
Or Laws 1969, ch 244, § 5; see also ORS 133.060(2) (current
version; requiring magistrate to issue a warrant of arrest
“upon application for its issuance, upon the person’s failure
to appear”); State v. Lee, 373 Or 525, 535, 568 P3d 139 (2025)
(“Ordinarily, ‘shall’ create[s] a mandatory duty[.]”). Second,
the legislature also made the failure to appear on a citation a misdemeanor, now codified at ORS 133.076. Or Laws
1969, ch 244, § 9.
That statutory framework remained largely the
same until 1999, when the legislature passed Senate Bill
20 (SB 20) (1999) in response to confusion among the existing citation statutes for crimes and other non-criminal
offenses. The bill re-denominated all non-criminal offenses
Subcommittee No. 1, Art. 23, Preliminary Draft No. 2, 29-30 (Oct 1969) (emphasis added). The commentary explained that the section was aimed at punishing persons who fail to appear to answer a criminal citation. Commentary to Preliminary Draft No. 2 at 30. However, notably, the Subcommittee ultimately unanimously voted to delete the section from the proposed draft because it felt that the offense was already covered by Or Laws 1969, ch 244. Minutes, Subcommittee No. 1, Criminal Law Revision Commission, Dec 11, 1969, 6.
24
The cross-reference to ORS 133.055 has existed since the enactment of the citation scheme in 1969. See Or Laws 1969, ch 244, § 3 (providing that a magistrate “may authorize a peace officer to issue and serve a citation as provided in section 2 of this 1969 Act” (emphases added)); Or Laws 1969, ch 244, § 2 (providing that “[a] peace officer in lieu of taking the person into custody may issue and serve a citation to the person to appear at the court of the magistrate before whom the person would be taken pursuant to [procedure following arrest on issued warrant]” (emphases added)).
546 State v. Sarria
as “violations,” and created separate procedures and penalties for citations issued for those offenses. As part of that revision, the legislature also amended the existing criminal
citation statutes as well as created new statutory requirements for the form, content, and issuance of criminal citations. Or Laws 1999, ch 1051, §§ 54-74. SB 20 also required
the adoption of uniform citation forms by this court, which,
barring exceptions not applicable to this case, must be used
when issuing a violation or a criminal citation. Or Laws
1999, ch 1051, §§ 13, 57, 73; see also ORS 1.525 (noting
same).
As noted, the intended purpose of SB 20 was to
simplify the then-existing citation procedures and to create
greater uniformity. Tape Recording, Senate Committee on
Judiciary, SB 20, Feb 1, 1999, Tape 20, Side A (testimony
of Representative Floyd Prozanski) (stating that the “intent
of the bill is * * * to give some uniformity and some consistency”). In doing so, the legislature distinguished criminal
citations from other types of citations and revised the procedures for their issuance, including enacting what is now
codified as ORS 133.068 and ORS 133.069, giving peace
officers the option to issue criminal citations with or without complaints and prescribing certain statutory requirements.25 In enacting ORS 133.068 and ORS 133.069, the
legislature kept the requirement that the citation state “the
25
For example, both ORS 133.068 and ORS 133.069 require—among other things—that a citation contain: “[t]he name of the court at which the cited person is to appear,” “[t]he name of the person cited,” “the name of the officer who issued the citation,” and “the date, time and place at which the cited person is to appear.” As relevant here, ORS 133.068—which includes the contents of a criminal citation issued without complaint—expressly provides that the citation include the following warning:
“READ CAREFULLY
“This citation is not a complaint or an information. A complaint or an information may be filed and you will be provided a copy thereof at the time of your
first appearance. You MUST appear in court at the time set in the citation.
IF YOU FAIL TO APPEAR AND A COMPLAINT OR INFORMATION HAS
BEEN FILED, THE COURT WILL IMMEDIATELY ISSUE A WARRANT
FOR YOUR ARREST.”
(Capitalization in original.) Wording of this nature providing notice to the person cited that charges may be filed and that their failure to appear will result in the immediate issuance of a warrant for arrest has been part of the statutory scheme since 1969. See Or Laws 1969 ch 244, § 6(2)(g) (requiring citation to contain same language).
Cite as 375 Or 516 (2026) 547
name of the peace officer who issued the citation.” Or Laws
1999, ch 1051, §§ 60-61.
Thus, even after the 1999 statutory revisions, the
legislature has continuously required that criminal citations
be issued and served by peace officers—not magistrates—
pursuant to the requirements of the statutory framework
created by the legislature. There is no evidence in the legislative history that the legislature intended to change that
practice when it enacted SB 20 (1999). The only substantive
amendments to the framework since 1999 came in 2005,
when the legislature enacted ORS 133.073 to allow peace
officers to file criminal citations electronically, Or Laws
2005, ch 566, § 15, and again in 2015, when the legislature
amended ORS 133.073 to allow the electronic filing of criminal citations in a different size or format, so long as they
contained all the required statutory information, Or Laws
2015, ch 13, § 1.
In sum, in enacting the current framework, the
legislature expressly created requirements for the issuance and service of criminal citations. Thus, for a person
to be convicted of failure to appear on a criminal citation in
violation of ORS 133.076, the criminal citation must have
been issued pursuant to the legislatively enacted statutory
authority and procedure for criminal citations, ORS 133.055
to 133.076. And the primary statutory requirement that has
existed since the enactment of the criminal citation framework is that peace officers, not magistrates, have the statutory authority to issue criminal citations.
The undisputed evidence presented by both parties
to the trial court established that the peace officer in this
case declared under penalty of perjury that they “received
the within CITATION on the 8th day of September, 2021” and
“served the same * * * on the 16th day of September, 2021”
on defendant. (Capitalization in original.) The attached verified and correct copy of the original citation served did not
include any signature other than that of the trial court judge
on August 27, 2021, and was on a form prepared by the district attorney, which they asserted was “standard” for their
office and “issued by Your Honor.” Thus, the record supports
that the only action taken by the peace officer in this case
548 State v. Sarria
was delivery of the citation and not any of the preceding acts
constituting exercise of the peace officer’s statutory authority to issue the citation. Therefore, the citation forming the basis for the failure-to-appear charge was not lawfully issued.
Our holding today is narrow: to commit the offense
of failure to appear for purposes of ORS 133.076, an individual must be served with a criminal citation that has been
both issued and served by a peace officer. A trial court may
authorize a peace officer to exercise that authority but may
not issue the citation itself.26 Contrary to the concerns the
dissent raises, we observe that the legislature carefully balanced the interests of the courts, peace officers, and criminal defendants by enacting a criminal citation scheme intended
to be both uniform and clear in its application with the benefit of court-approved uniform citation forms that provide
appropriate notice to defendants about the consequences of
failing to appear in court. We are confident that many of the
concerns raised by the dissent can be addressed through a
peace officer’s use of those court-approved forms,27 and the
Court of Appeals’ own caselaw will continue to guide it in
broader challenges to the form of citations.
IV. CONCLUSION
In sum, the criminal citation was not lawfully
issued under the criminal citation statutes for purposes of
ORS 133.076 because the undisputed evidence established
that the citation was only served by the peace officer in the
form signed by the court. That is the pretrial legal determination that defendant sought from the trial court and
reserved for appellate review through his conditional plea.
Having prevailed on that legal determination, it will be up
to defendant to determine whether he intends to withdraw
his plea as provided for in ORS 135.335(3).
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
26
A judicial order may be enforceable under the contempt statutes. See, e.g., ORS 33.015(2)(b) (defining contempt of court as willful “[d]isobedience of, resistance to or obstruction of the court’s authority, process, orders, or judgments.”).
27
Those forms, last amended in 2012, are available through the Oregon Judicial Department website. Uniform Citation, Oregon Judicial Department, https://www. courts.oregon.gov/forms/Pages/citation.aspx (accessed August 12, 2026). Cite as 375 Or 516 (2026) 549
in 21CR41830 is affirmed. The judgment of the circuit court
in 22CR24774 is reversed, and that case is remanded to the
circuit court for further proceedings.
Bushong and James, JJ., join in this majority opinion, Flynn, C.J. joins except as to “Part-III-D,” and DeHoog,
J., joins except as to “Parts III-A and B.”
DUNCAN, J., dissenting.
I appreciate the work that has gone into the majority’s opinion, but I write separately to clarify the issues in
this case and to dissent from both the majority’s choice to
decide a legal question that the Court of Appeals did not
reach and the majority’s resolution of that question.
I. INTRODUCTION
This appeal involves two consolidated criminal
cases. In the first case, defendant was charged with unlawfully purchasing a firearm in violation of ORS 166.425.
Defendant was cited to appear in court on that charge but
failed to appear as directed. Thereafter, the state brought
the second case against him, charging him with failure to
appear on a citation in violation of ORS 133.076 (FTA). That
statute provides, in part:
“(1) A person commits the offense of failure to appear
on a criminal citation if the person has been served with a
criminal citation issued under ORS 133.055 to 133.076 and
the person knowingly fails to do any of the following:
“(a) Make an appearance in the manner required by
ORS 133.060 [requiring the person to appear at the time,
date and court specified in the citation].
“(b) Make appearance at the time set for trial in the
criminal proceeding.
“(c) Appear at any other time required by the court or
by law.”
(Emphasis added.) Thus, by its plain terms, ORS 133.076
applies to failures to appear after having been served with
a particular type of citation: one “issued under ORS 133.055
to 133.076.” The statutes in that range concern citations
for certain types of crimes, specifically, misdemeanors and
550 State v. Sarria
felonies that are subject to misdemeanor treatment under
ORS 161.705. Thus, ORS 133.076 governs failures to appear
on criminal citations.1
Based on the phrase “issued under ORS 133.055 to
133.076,” defendant filed a pretrial motion to dismiss the
FTA case, arguing, as relevant here, that
(1) in an FTA case, the state is required to prove, as
an element of the offense, that the underlying citation complied with ORS 133.055 to 133.076, and
(2) the state could not prove that the underlying citation in his case complied with those statutes because (a)
some of the statutes require that a citation be “issued by” a
peace officer and (b) the underlying citation in his case was
not “issued by” a peace officer.
In other words, defendant argued that, in an FTA case, the
state must prove that the underlying citation was “valid”—
meaning that it complied with ORS 133.055 to 133.076—and
that the underlying citation in his case was not “valid” because it was not “issued by” a peace officer. Thus, defendant’s argument raised statutory construction questions regarding the
elements of FTA and the requirements for citations.
The trial court rejected defendant’s argument, ruling that the citation was lawful “both in its form and in its
content.”
Defendant entered a conditional guilty plea pursuant to ORS 135.335(3), which allows a defendant to enter a
conditional plea reserving the right to review of “an adverse
determination of any specified pretrial motion.”2 In his
1
There are at least three types of “failure to appear on a citation.” The statute at issue here, ORS 133.076, defines the offense of failure to appear on a criminal citation, that is, a citation “issued under ORS 133.055 to 133.076.” Another statute, ORS 153.992, defines the crime of failure to appear in a violation proceeding as failing to appear after being “served with a citation issued under [ORS Chapter 153].” A third statute, ORS 810.365, establishes non-criminal consequences for failure to appear on a parking citation.
For convenience, I use the term “FTA” to refer to the type of failure to appear at issue in this case, that is, a failure to appear on a criminal citation in violation of ORS 133.076.
2
ORS 135.335(3) provides a means for defendants to enter guilty or no contest pleas without losing their ability to obtain review of pretrial rulings. It states:
Cite as 375 Or 516 (2026) 551
written plea petition, defendant reserved his right to review
of the trial court’s denial of his motion to dismiss. The trial court accepted defendant’s plea, convicted him of FTA, and
imposed a sentence of discharge.
Defendant appealed, renewing the argument he
had made in the trial court. In response, the state made two
arguments. The state’s first argument was that the Court
of Appeals should affirm the trial court’s denial of defendant’s motion to dismiss on an alternative basis, specifically, because the motion was premature. According to the state,
the motion was “a sufficiency challenge,” and, as such, had
“to be raised at trial by means of a motion for a judgment
of acquittal.” Thus, the state’s first argument was that the
Court of Appeals should affirm the trial court’s denial of
the motion because the trial court could have denied it for
a different reason: that it was an improper pretrial motion.
The state’s second argument was that the trial court had
correctly denied the motion on its merits.
The Court of Appeals accepted the state’s first argument, thereby affirming the trial court’s denial of defendant’s motion on an alternative basis. The court stated:
“We do not reach the merits of defendant’s statutory
construction argument, because we affirm the trial court’s
ruling on an alternative ground. As the state correctly
points out, defendant’s motion to dismiss concerned the
sufficiency of the state’s anticipated proof at trial, which is
not a basis to dismiss a criminal case pretrial.”
State v. Sarria, 335 Or App 201, 202, 557 P3d 1155 (2024)
(internal quotation marks omitted); see id. (citing, among
other cases, State v. Weber, 172 Or App 704, 714, 19 P3d 378
(2001) (“[W]e are unaware of any Oregon authority by which
a pretrial ‘motion to dismiss’ can be employed to challenge
the sufficiency of the state’s anticipated proof of a charge.”)).
“With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal
from the judgment, to a review of an adverse determination of any specified
pretrial motion. A defendant who finally prevails on appeal may withdraw
the plea.”
See also ORS 138.105 (limiting review of convictions from guilty and no contest pleas but providing for review of adverse determinations of pretrial motions identified in conditional pleas).
552 State v. Sarria
On defendant’s petition, we allowed review. On
review, this case presents three questions: (1) whether the
Court of Appeals erred in affirming on an alternative basis
that allowed it to avoid reaching the merits of defendant’s
argument regarding the elements of FTA and the requirements for citations; (2) if so, whether this court should
remand this case to the Court of Appeals to decide the merits of defendant’s argument in the first instance; and (3)
if, instead, this court addresses the merits itself, whether
defendant’s argument is correct. For the reasons I explain
below, I would answer each of those questions differently
than the majority.
II. ANALYSIS
A. Whether the Court of Appeals Erred
As to the first question, I would hold, as the majority does, that the Court of Appeals erred in affirming on
an alternative basis, but I would do so by relying solely on
an application of Outdoor Media Dimensions Inc. v. State
of Oregon, 331 Or 634, 20 P3d 180 (2001). In my view, the
majority’s reliance on the fact that defendant entered a conditional guilty plea is unnecessary because, under Outdoor
Media, the Court of Appeals would have been precluded
from considering the state’s alternative argument even if
defendant had not entered a conditional guilty plea.
For an appellate court to affirm a trial court ruling on an alternative basis, the trial court record must
“materially be the same one that would have developed had
the prevailing party raised the alternative basis for affirmance below.” Outdoor Media, 331 Or at 660. Applying
that requirement to this case, the Court of Appeals erred
in considering the state’s alternative argument because,
had the state made that argument in the trial court, the
record could have developed differently. That is because, in
response to an argument that his motion was an improper
pretrial motion, defendant could have made a different pretrial or trial motion.
For example, because defendant’s motion to dismiss
was based on his view that, in an FTA case, the state must
prove, as an element of the offense, that the underlying
Cite as 375 Or 516 (2026) 553
citation was issued in compliance with ORS 133.055 to
133.076, he could have made a pretrial motion for a ruling
on a jury instruction regarding the elements of the offense.
Or, as another example, he could have proceeded to a stipulated facts trial or a full trial and moved for a judgment of
acquittal and argued that the state was required to prove
that the underlying citation complied with ORS 133.055 to
133.076 and that its evidence was insufficient to establish
that element. As those examples show, if the state had made
its alternative argument in the trial court, defendant could
have taken steps in the trial court that would have affected
the state’s ability to succeed on its argument in the appellate court. For that reason alone, the state’s alternative
argument fails under Outdoor Media.
Despite that, the majority spends a considerable
amount of time discussing conditional guilty pleas. After
concluding that the state’s alternative argument fails under
Outdoor Media, the majority goes on to describe the conditional guilty plea statute, its legislative history, and its
purpose. 375 Or at 532-35. The majority emphasizes that
a defendant can enter a conditional guilty plea only if the
state consents, as the state did in this case. 375 Or at 526,
531, 535. And it asserts that the fact that defendant entered
a conditional guilty plea supports its conclusion that the
Court of Appeals erred in considering the state’s alternative
argument. 375 Or at 531 (stating that defendant’s Outdoor
Media arguments are “further supported by the conditional
plea statute”).
That discussion is unnecessary and potentially
confusing because it suggests that part of the reason the
Court of Appeals erred in considering the state’s alternative
argument is because defendant entered a conditional guilty
plea. I disagree with that suggestion because the Court of
Appeals would have erred even if defendant had not entered
a conditional guilty plea.
Two hypotheticals illustrate why a proper and complete Outdoor Media analysis does not depend on the fact
that defendant entered a conditional guilty plea. First, consider what would happen if, instead of entering a conditional
guilty plea, defendant had proceeded to a full trial after the
554 State v. Sarria
trial court denied his pretrial motion to dismiss, a motion
that presented questions of statutory construction regarding
the elements of FTA and the requirements for citations. We
would still reject the state’s alternative argument because,
if the state had made it in the trial court, the record could
have developed differently. Instead of relying on the trial
court’s pretrial ruling—which was a legal ruling rejecting
defendant’s statutory construction argument—defendant
could have made a different motion during his trial. But,
because the state had not made its alternative argument in
the trial court and the trial court had rejected his statutory
construction argument, defendant had no reason to do so;
that is, he had no reason to ask the trial court to reconsider
the legal ruling it had already made. Thus, the state’s argument would be barred by Outdoor Media even though defendant had not entered a conditional guilty plea but had gone
to trial instead.
Second, consider what would happen if the state
had argued that defendant’s motion was an improper pretrial motion and the trial court rejected that argument,
reached the merits of the motion, and denied it. If defendant
then entered a conditional guilty plea and appealed, assigning error to the denial of his motion, and the state renewed
its argument that defendant’s motion was an improper pretrial motion, we would have to determine whether we could
consider that argument. Because the state had made the
argument in the trial court, the case would not present an
Outdoor Media question. Instead, the question would be
whether the fact that defendant entered a conditional guilty
plea somehow precluded the state’s argument that the
motion was an improper pretrial motion. Resolution of that
question would require application of different legal tests
than the one established by Outdoor Media.
The majority’s extended discussion of conditional
guilty pleas and its focus on the state’s consent to defendant’s conditional guilty plea could be read as suggesting that its conclusion is based on ideas of estoppel or the
enforcement of plea agreements. But claims relating to
estoppel or the enforcement of plea agreements have different elements than Outdoor Media claims, and resolution
Cite as 375 Or 516 (2026) 555
of them would require different analysis than the majority
has done. Moreover, if the state was somehow estopped or
contractually barred from making its alternative argument,
that fact would not support the majority’s Outdoor Media
analysis, as the majority says. ___ Or at ___ (slip op at 18:17 - 19:1). Instead, it would render it moot.3
In sum, although I agree with the majority’s conclusion that the state’s alternative basis for affirmance fails under Outdoor Media, I part ways with the majority where
it goes on to discuss conditional guilty pleas because the discussion is unnecessary and creates the risk of confusion.4
B. Whether to Remand to the Court of Appeals
The second question in this case is whether this
court should address defendant’s argument, even though
the Court of Appeals did not, or whether this court should
remand the case to the Court of Appeals to address the
argument in the first instance. As I will explain, there are
general, institutional reasons to remand the case, including
that this court’s decisions benefit from both the refinement
of arguments as cases go through the regular appellate
3
The majority asserts that it is not relying on concepts of estoppel or the enforcement of plea agreements. ___ Or at ___ (slip op at 22 n 16). That begs the question of why, after concluding that the record would have developed differently had the state made its alternative argument, ___ Or at ___ (slip op at 13:10 - 18:16, 23:11-13), the majority spends pages discussing conditional pleas, emphasizing that the state consented to defendant’s conditional guilty plea, ___ Or at ___ (slip op at 18:17 - 24:3), and draws a distinction between defendant’s Outdoor Media argument and his conditional plea argument, ___ Or at ___ (slip op at 22 n 16).
4
Notably, although the majority spends considerable time addressing conditional guilty pleas in general, it does not spend any time addressing the state’s Outdoor Media argument that the requirement that “the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below,” 331 Or at 660, depends only on whether the factual record could have developed differently, not on whether the defendant would have made a different legal argument. According to the state:
“Defendant’s view of Outdoor Media’s record development concern would
effectively nullify Outdoor Media. The point of the right-for-the-wrong reason
doctrine is to allow affirmance on grounds not raised below as long as the
factual record on the issues before the trial court would not have changed if
the alternative ground had been raised. Defendant’s argument would mean
that an appellate court cannot affirm on alternative grounds merely because
a different argument could have been made—or because the defendant would
have filed a different motion at a different time.”
(Emphasis in original.)
556 State v. Sarria
process and the Court of Appeals’ opinions regarding those
arguments. There are also case-specific reasons to remand,
including that the parties’ briefs in this court fail to address relevant authorities, and that at least two of defendant’s
arguments are based on facts that are either unclear from,
or unsupported by, the record.
But, before turning to the reasons to remand this
case to the Court of Appeals to address defendant’s argument challenging his conviction for violating the FTA statute, it is helpful to set out the statute. Again, ORS 133.076
provides, in part:
“(1) A person commits the offense of failure to appear
on a criminal citation if the person has been served with a
criminal citation issued under ORS 133.055 to 133.076 and
the person knowingly fails to do any of the following:
“(a) Make an appearance in the manner required by
ORS 133.060 060 [requiring the person to appear at the
time, date and court specified in the citation].
“(b) Make appearance at the time set for trial in the
criminal proceeding.
“(c) Appear at any other time required by the court or
by law.”
(Emphasis added.)
As mentioned, based on the phrase “issued under
ORS 133.005 to ORS 133.076,” defendant argues that
(1) in an FTA case, the state is required to prove, as
an element of the offense, that the underlying citation complied with ORS 133.055 to 133.076, and
(2) the state could not prove that the underlying citation in his case complied with those statutes because (a)
some of them require that a citation be “issued by” a peace
officer and (b) the underlying citation in his case was not
“issued by” a peace officer.
Because the Court of Appeals accepted the state’s alternative basis for affirmance, it did not reach the merits of defendant’s argument. So, we do not have the benefit of a Court
of Appeals analysis of the multiple statutory construction
questions that arise from defendant’s argument. In addition,
Cite as 375 Or 516 (2026) 557
because the parties’ briefs in this court focused primarily on
whether the Court of Appeals erred in accepting the state’s
alternative argument, their briefing on the statutory construction questions is not as thorough as it could be; as discussed below, it fails to address relevant law. The absence of
both a Court of Appeals opinion and thorough briefing is particularly concerning because the statutory construction questions are matters of first impression and how we resolve them
will have significant consequences for criminal procedures.
1. Institutional reasons to remand
Generally, under our state’s court system, issues are
litigated and decided in both the trial court and the Court of
Appeals before this court weighs in on them. That approach
has several benefits, which are worth pausing to remember.
As cases proceed through the three levels of our
court system, issues are often narrowed, and arguments are
tested and refined. In addition, more judges are involved in
examining the parties’ arguments, assessing them against
existing law, and considering their ramifications. In the trial court, one judge rules on a motion. In the Court of Appeals,
a panel of three judges decides a case, after reading written
briefs, holding oral argument if requested, and engaging in
the deliberative and collaborative work necessary to reach
a decision. At least two judges must agree on the decision,
and the decision is subject to referral to the full 13-member court. When judges on a panel (or the full court) disagree, the disagreement can improve the court’s ultimate
opinion because it can prompt the removal of parts of the
opinion that might be unnecessary, confusing, or incorrect.
And, if the disagreement is not resolved and results in a
concurrence or dissent, that separate writing can aid later
consideration of the issues by this court. After the Court of
Appeals issues its opinion, a party seeking further review
must file a written petition explaining why this court should
allow review. In doing so, a party must address the Court
of Appeals’ opinion, and that act helps hone the questions
and arguments that come to this court. Thus, the Court of
Appeals plays an important role in our court system, and
there are benefits to having that court decide legal questions
before this court. Those benefits include helping to ensure
558 State v. Sarria
that the best arguments on an issue are made and fully considered in light of existing law, including Court of Appeals
case law. They also include the systemic benefit that comes
from allowing the intermediate court to identify and refine
rules through a number of cases over time before this court,
which is the final arbiter of state law, reviews those rules.
In this case, we do not have an opinion from the
Court of Appeals on (1) whether, in an FTA case, the state
is required to prove, as an element of the offense, that the
underlying citation complied with ORS 133.055 to 133.076;
and, if so, (2) (a) whether compliance required that the
underlying citation be “issued by” a peace officer and, if so,
(b) whether the underlying citation in this case was “issued
by” a peace officer. Resolution of those questions will have
significant ramifications. Invalidating the process that the
district attorney used in this case to bring defendant into
court on a newly charged case will force a new process in
that district attorney’s county, as well as any other counties that use a similar process. Holding that the citation is
invalid could trigger challenges to citations and perhaps
the court proceedings that follow them. Those potential
systemic consequences counsel in favor of an initial layer of
appellate review by the Court of Appeals.
As I discuss below in connection with the merits,
I see no reason to invalidate the process and trigger a cascade of challenges to citations and the court proceedings
that follow them. Here, a deputy district attorney filed
three documents with the trial court: (1) a district attorney’s information charging the defendant with FTA; (2) an
affidavit describing the basis for the charge and requesting
that the trial court authorize a citation in lieu of an arrest
warrant to bring defendant to court; and (3) a proposed citation, with signature lines for both the judge (who has to
decide whether there is probable cause that the defendant
committed the charged offense and whether to authorize a
citation) and for the peace officer (who cites the defendant).5
5
The citation includes a “RETURN OF SERVICE” section, which states, “The undersigned peace officer hereby returns this citation having cited the defendant on___ [blank for date].” Below that sentence is a line for the peace officer’s signature, and below that signature line are places for the officer to mark whether the copy of the citation is “Defendant Copy” or “Court Copy.” Thus, the Cite as 375 Or 516 (2026) 559
It seems to me that that process affords defendants the protections that the legislature intended when it authorized
citations in lieu of arrest warrants. See ORS 133.110.6 The
district attorney brought the charge, the judge approved
the charge and, instead of having the defendant arrested
pursuant to a warrant, chose to have him cited to appear.
Before invalidating that process, it would be beneficial to
have an opinion from the Court of Appeals and thorough
briefing from the parties.
The Court of Appeals is a busy court, but that can
be a strength. The members of the Court of Appeals are constantly reviewing summaries and transcripts of trial court
proceedings. They are familiar with how cases are being
handled in trial courts across the state, and, consequently,
they are well positioned to consider the ramifications of any
rule they might announce. Moreover, because of the volume
of cases they handle, they have created a large body of case
law and are likely to be aware of how a decision in a current
case will fit with decisions in prior cases.
The Court of Appeals’ awareness of its own case
law is particularly relevant in this case. As mentioned, this
case presents questions of first impression: (1) whether, in
an FTA case, the state is required to prove that the underlying citation complied with ORS 133.055 to 133.076; and, if
so, (2) (a) whether compliance required that the underlying
citation be “issued by” a peace officer and, if so, (b) whether the underlying citation in this case was “issued by” a peace
officer. The Court of Appeals has already answered the first
question in the negative and, thereby, eliminated any need
to address the second. It did so in State v. Kenny, 262 Or App
form indicates that a peace officer would sign the citation and give a copy to the defendant and a copy to the court.
6
ORS 133.110 provides:
“If an information or a complaint has been filed with the magistrate, and
the magistrate is satisfied that there is probable cause to believe that the
person has committed the crime specified in the information or complaint,
the magistrate shall issue a warrant of arrest. If the offense is subject to
issuance of a criminal citation under ORS 133.055, the court may authorize
a peace officer to issue and serve a criminal citation in lieu of arrest.” The cross-referenced statute, ORS 133.055, authorizes citations for misdemeanors and felonies that are subject to misdemeanor treatment under ORS 161.705. 560 State v. Sarria
702, 327 P3d 548 (2014). That brings me to the case-specific
reasons to remand.
2. Case-specific reasons to remand
In addition to the important institutional reasons to
remand to the Court of Appeals, there are case-specific reasons to do so here. As discussed below, the parties’ briefing
fails to address the Court of Appeals’ decision in Kenny. It also fails to address a relevant statute, ORS 131.035, which provides that “[n]o departure from the form or mode prescribed
by law, error or mistake in any criminal pleading, action or
proceeding renders it invalid, unless it has prejudiced the
defendant in respect to a substantial right.” In addition,
parts of defendant’s arguments appear to be based on facts
that are either unclear from, or unsupported by, the record.
And, finally, there is nothing out of the ordinary about this
case that justifies departing from the regular appellate process without both a Court of Appeals opinion and thorough
briefing.
a. State v. Kenny
In Kenny, the defendant was charged with failure
to appear on a criminal citation for allegedly violating ORS
133.076, the same statute at issue in this case. 262 Or App
at 705. Again, that statute provides that a person “commits
the offense of failure to appear on a criminal citation if the
person has been served with a criminal citation issued under
ORS 133.055 to 133.076 and the person knowingly fails” to
appear as required. (Emphasis added.) The defendant moved
for a judgment of acquittal on the ground that the state had
failed to prove that the citation was “ ‘issued under ORS
133.055 to 133.076.’ ” Kenny, 262 Or App at 705 (describing the defendant’s argument and quoting ORS 133.076). The defendant’s motion raised a statutory construction question about
the meaning of the quoted phrase. Id. The trial court denied
the motion, and the defendant appealed. Id. On appeal, the
defendant assigned error to the denial of the motion, and, as
the Court of Appeals explained, that assignment turned
“solely on [the defendant’s] legal argument that ORS
133.076 requires the state to prove, beyond a reasonable
doubt, that the state issued the citation in compliance with
Cite as 375 Or 516 (2026) 561
the requirements of ORS 133.055 to 133.076 and that she
was entitled to acquittal because it [was] undisputed that
the state failed to do so.”
Id. at 705.
In response to that argument, the state argued that
the defendant misconstrued “the meaning of the phrase
‘issued under ORS 133.055 to 133.076.’ ” Id. The state contended that “the legislature did not intend to create additional elements of the offense when it included that phrase in
ORS 133.076.” Id. Rather, the state contended, “the phrase’s
plain meaning indicates that the legislature intended it to
describe the type of citation that would form the basis for that particular iteration of the crime of failure to appear.” Id. at 705-06 (emphasis added).
The Court of Appeals agreed with the state. Id. at
706 (“We agree with the state.”). It did so based on a statutory construction analysis conducted in accordance with
the methodology set out in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), and PGE v. Bureau of Labor and
Industries, 317 Or 606, 610, 859 P2d 1143 (1993), by considering the text, context, and legislative history of the FTA
statute, ORS 133.076. Kenny, 262 Or App at 706-09.
The Court of Appeals began its textual analysis by
turning to the dictionary definitions of “issue” and “under”
and observed that those definitions indicate that the legislature intended the phrase “issued under ORS 133.055
to 133.076” to refer to the statutes that were the source of,
or authorized, the citation. Id. at 706-07.7 It explained that
the phrase indicates that “the legislature intended that the
state be required to prove only that the person was served
with a criminal citation having as its source the statutes
7
The court stated that
“[c]ommon definitions of the intransitive verb ‘issue’ include ‘to proceed or
come forth from a usu[ally] specified source,’ ‘to appear or become available
through being officially put forth or distributed or granted or proclaimed
or promulgated,’ and ‘to go forth by authority.’ Webster’s Third New Int’l
Dictionary 1201 (unabridged ed 2002). Common definitions of the preposition
‘under’ include ‘required by : in accordance with : bound by,’ ‘in conditions or
circumstances of,’ ‘attested or warranted by <issued [under] the royal seal>,’
and ‘subject to the bidding or authority of.’ Id. at 2487.”
Kenny, 262 Or App at 706.
562 State v. Sarria
listed in ORS 133.055 to 133.076, not that the citation, as
issued, complied with those statutes.” Id.
The Court of Appeals continued its textual analysis
by observing that the range of statutes included in the phrase
“issued under ORS 133.055 to 133.076” weighed against
the defendant’s argument that the phrase was intended to
require the state to prove, as an element of FTA, that the
underlying citation complied with those statutes. Id. at 707.
That is because, the court explained, not all the statutes in
the range establish requirements for citations; indeed, one of
them defines the crime of FTA. Id. (“Moreover, defendant’s
reading would require the state to prove to a jury not only
that the authority for, content of, and process used to issue
the citation were proper but also that the criminal citation
was ‘issued under’ ORS 133.076, the criminal offense itself.”). And the statutes that do establish requirements establish
different requirements for different situations. Id. (“[F]or any offense charged, some of the statutes listed in ORS 133.076
will not apply. For instance, ORS 133.068 describes what
must be included in a criminal citation that is issued without
a complaint, whereas ORS 133.069 describes what must be
included in a criminal citation issued with a complaint.”).
Finally, the Court of Appeals observed that the
defendant’s argument would insert an additional element
into the FTA crime, contrary to the plain text of the statute.
Id. at 707-08. The court explained:
“[T]he import of defendant’s argument is that the state
would be required to prove three elements to the factfinder
to establish an offense under ORS 133.076. Defendant’s
contention ignores the structure of the sentence, which
suggests that the state must prove the two elements that
are separated by the term ‘and’: ‘A person commits the
offense of failure to appear on a criminal citation if the person has been served with a criminal citation issued under
ORS 133.055 to 133.076 and the person knowingly fails to
do any of the following * * *.’ (Emphasis added.) Defendant’s
proposed reading would require the state to prove a third
element, namely, that the citation, in addition to being
served, was also in compliance with the requirements contained within ORS 133.055 to 133.076. The legislature
could have, but did not, insert an additional ‘and’ between
Cite as 375 Or 516 (2026) 563
the requirements that ‘the person was served with a criminal citation’ and that the citation was ‘issued under ORS
133.055 to 133.076,’ nor did the legislature otherwise indicate a series of three elements for the offense. Although
there can be subparts to an element, the insertion of defendant’s proposed requirement is not supported by a plain
reading of the phrase.”
Id.
In addition to examining the text of the FTA statute, the Court of Appeals in Kenny examined the statute’s
context and concluded that the context supported its textbased understanding of the statute. Id. at 708. Among other
things, the court observed that the defendant’s argument
“does not account for the fact that there is more than one
type of ‘failure to appear’ offense. See, e.g., ORS 153.992(1)
(‘A person commits the offense of failure to appear in a
violation proceeding if the person has been served with a
violation citation issued under this chapter and the person
knowingly fails to do any of the following: (a) Make a first
appearance in the manner required by ORS 153.061 within
the time allowed.’ * * *). The need to distinguish types of
‘failure to appear’ offenses provides further support for our
conclusion that the legislature’s inclusion of the phrase ‘a
criminal citation issued under ORS 133.055 to 133.076’ was
intended to identify the type of citation issued, in accordance
with the offense defined in ORS 133.076.”
Id. (first and second emphases in Kenny; third emphasis
added). In other words, the Court of Appeals reasoned that
the purpose of the phrase is to distinguish between failure to appear on a citation for a crime, which can be issued
under statutes in the referenced range, from other forms of
failure to appear, including failure to appear on a citation
for a violation, which can be issued under different statutes.
Finally, the Court of Appeals turned to the legislative history of ORS 133.076, stating that it “found nothing”
in that history to suggest a different conclusion than the
one indicated by the text and context it had discussed. Id. at
708.
Based on its statutory construction analysis, the
Court of Appeals rejected the defendant’s argument that,
564 State v. Sarria
in an FTA case, the state must prove that the underlying
citation complied with ORS 133.055 to 133.076. Id. at 708-09. The court held that the legislature did not intend the
phrase “issued under ORS 133.055 to 133.076” to create an
additional element of FTA. Id. Instead, the legislature used
the phrase to identify the type of citation that would form
the basis for that particular iteration of the crime of failure to appear—viz., a citation for a crime, as opposed to a
citation for a violation. “[T]he legislature intended that the
state be required to prove only that the person was served
with a criminal citation having as its source the statutes
listed in ORS 133.055 to 133.076, not that the citation, as
issued, complied with those statutes.” Id. at 706-07 (emphasis
added). Thus, the Court of Appeals has already rejected the
first claim on which defendant’s argument depends.
I think the Court of Appeals’ analysis in Kenny is
sound. But even if one were to disagree with Kenny or to
think that it does not apply in this case, the Court of Appeals should be given the opportunity to defend or distinguish
Kenny in the first instance.8
b. ORS 131.035
Not only do the parties’ briefs in this court fail to
address Kenny, they also fail to address a relevant statute, ORS 131.035. As mentioned, that statute provides, “No
departure from the form or mode prescribed by law, error
or mistake in any criminal pleading, action or proceeding
renders it invalid, unless it has prejudiced the defendant
in respect to a substantial right.” (Emphasis added.) ORS
131.035 is relevant here because defendant argues that, in
an FTA case, the state must prove that the underlying citation was issued in compliance with ORS 133.055 to 133.076;
in other words, defendant argues that the state must prove
that the underlying citation did not depart from the form or
mode prescribed by those statutes. But, under ORS 131.035,
a departure from a form or mode prescribed by statute
does not render an action “invalid” unless it prejudices a
defendant in respect to a substantial right. In my opinion,
ORS 131.035 provides relevant context when determining
8
I address the majority’s view of Kenny in my analysis of defendant’s argument about the elements of FTA. ___Or at ___ (slip op at 26:6 - 29:20). Cite as 375 Or 516 (2026) 565
whether the legislature would have intended to preclude an
FTA conviction on the ground that the underlying citation
departed from the form or mode prescribed by ORS 133.055
to 133.076. Would the legislature have intended to preclude
an FTA conviction because the underlying citation did not
comply with a requirement set out in one of those statutes,
even if, under ORS 131.035, the noncompliance did not
invalidate the citation?
The parties’ briefs in this court do not address that
question; indeed, they do not even discuss ORS 131.035.
Their failure to do so weighs against this court addressing the merits of defendant’s argument at this point. It is
also a reason to remand to the Court of Appeals to consider
defendant’s argument in light of its case law applying ORS
131.035. Notably, that case law includes State v. O’Brien, 96
Or App 498, 501-02, 774 P2d 1109 (1989), which involved a
claim that a subpoena was invalid because of a defect relating to whether it had been issued by the proper entity. In
O’Brien, the defendant argued that the trial court had erred
in denying his motion to quash a subpoena that failed to comply with statutory requirements because it “identified the
grand jury, rather than the district attorney, as the issuing
agency, and defendant’s attorney was served rather than the
defendant.” 96 Or at 501. Applying ORS 131.035, the Court
of Appeals rejected that argument. Id. The fact that, like
O’Brien, this case involves a claim regarding the validity of
a legal document directing a person to take action in connection with a court case—there, a subpoena directing a person
to produce documents; here, a citation directing a person to
appear—supports remanding to the Court of Appeals to consider this case in light of O’Brien and its other similar cases. E.g., City of Portland v. Ledwidge, 50 Or App 355, 358, 622
P2d 115 (1981) (holding that the trial court erred in dismissing a defective complaint); State v. Atkinson, 28 Or App 909,
913-15, 562 P2d 978 (1977) (holding that defects in a complaint did not require that it be dismissed or set aside).
c. Record issues
Potential record problems also weigh against this
court reaching defendant’s argument. When determining
whether to allow review of a Court of Appeals decision, this
566 State v. Sarria
court considers several factors. See ORAP 9.07 (listing factors). Although we have already allowed review in this case,
the factors remain useful in helping us consider whether
we should address an issue that the Court of Appeals did
not. One of the factors is whether “the record does, in fact,
present the desired issue.” ORAP 9.07(8). In this case, at
least two of defendant’s arguments depend on facts that are
either unclear from, or unsupported by, the record.
As mentioned, defendant argues that the citation at
issue was not valid because it was not “issued by” a peace
officer but was instead “issued by” a judge. It appears that
defendant’s assertion that the citation was “issued by” a
judge is based on the fact that a judge signed the citation.
Thus, defendant appears to equate signing with issuing.9
That is significant because the record supports an inference that a peace officer signed the citation as the person
who “cited” the defendant. As noted, the citation contains
a “RETURN OF SERVICE” section, which states, “The
undersigned peace officer hereby returns this citation having cited the defendant,” with a blank for the officer’s signature and a blank for the date. Thus, even if a peace officer
had to issue the citation and a person issues a citation by
signing it, the record in this case supports an inference that
a peace officer signed the citation.
The trial court found that the citation was lawful
“both in its form and in its content,” and we are bound by
the trial court’s explicit and implicit findings, if supported
by the record. State v. Benson, 370 Or 58, 65, 514 P3d 491
(2022); see also OEC 311(1)(j) (establishing the presumption
that an “[o]fficial duty has been regularly performed”). That
means that, to the extent that defendant’s argument that
the citation was not “issued by” a peace officer is premised
on an assumption that the peace officer did not sign the citation, that assumption is inconsistent with how we must view
the record, because the trial court found that the citation
was valid and the record supports an inference that the officer signed the citation.
9
Defendant identifies the ruling that he reserved for review as the trial court’s ruling “that a defendant can fail to appear on a criminal citation signed by a circuit court judge.”
Cite as 375 Or 516 (2026) 567
The second record issue relates to defendant’s argument that the citation needed to comply with ORS 133.069.
In his brief in this court, defendant relies on ORS 133.069 for the proposition that a peace officer must “issue” a citation.
But it is not clear that ORS 133.069 applies in this case. As
the Court of Appeals explained in Kenny, different statutes
apply depending on whether a citation is issued with or without a form of complaint. 262 Or App at 707. The statute on
which defendant relies, ORS 133.069, applies if a citation is
issued with a form of complaint. But nothing in the record in
this case indicates whether the citation at issue was issued
with or without a form of complaint. Although the deputy
district attorney had filed an information with the court at
the same time he filed the request for a citation, it is not
clear whether the citation was “issued” with a copy of the
information.
d. No need to depart from ordinary appellate
process
Finally, there is nothing out of the ordinary about
this case that justifies deviating from the regular appellate
process. There is no pressing reason to deny the Court of
Appeals the opportunity to address defendant’s argument
and, thereby, deny this court the benefits of a Court of
Appeals decision. It is true, of course, that this is a criminal case and defendant is appealing his conviction. But that
does not make it unusual. Many, if not most, of the appellate cases in our courts are criminal or post-conviction cases
involving challenges to convictions.
The majority asserts that it reaches the merits of
defendant’s claims for efficiency reasons. ___ Or at ___ (slip
op at 24:22 - 25:3). In our system, allowing cases to proceed
through the appellate steps before this court weighs in can
be efficient. It improves the likelihood of a fully considered
and correct legal rule. Consequently, it protects against confusion and disruption to courts and litigants at all levels that can result from decisions made without the benefits of arguments concerning relevant cases and statutes. Although we
may be motivated to relieve the workload of the Court of
Appeals, there is value in exercising judicial restraint to
allow the ordinary appellate process for these types of cases
568 State v. Sarria
to work, rather than address questions of first impression
with significant ramifications without the benefit of a Court
of Appeals decision and without thorough briefing.
In sum, although there are situations where it is
appropriate for this court to address an issue that the Court
of Appeals has not, this is not one of them. The general institutional reasons to remand are strong here, and they are
supplemented by the fact that the parties’ briefing fails to
address both a key case and a key statute, and the fact that
at least two of defendant’s arguments appear to be based
on facts that are either unclear from, or unsupported by,
the record. This case will affect all entities issuing citations and all persons involved in situations where a defendant has
failed to appear after being cited; we should remand it to go
through the full appellate process.
C. Whether Defendant’s Argument is Correct
Finally, because the majority has opted to address
the merits of defendant’s argument, I turn to the third
question, which is whether defendant’s argument is correct.
Again, defendant argues that
(1) in an FTA case, the state is required to prove, as
an element of the offense, that the underlying citation complied with ORS 133.055 to 133.076, and
(2) the state could not prove that the underlying citation in his case complied with those statutes because (a)
some of the statutes require that a peace officer “issue” the
citation and (b) the underlying citation in his case was not
“issued by” a peace officer.
It bears emphasizing that there are two parts to defendant’s
argument and they must be addressed in order. If the first
part fails, there is no need to address the second. In my
opinion, defendant’s argument fails at the first step. For the
reasons the Court of Appeals identified in Kenny, as well as
additional reasons I explain below, I would hold that, in an
FTA case, the state is not required to prove that the underlying citation complied with the requirements for citations
set out in ORS 133.055 to 133.076. Therefore, I would not
need to reach the question of whether the citation statutes
require that a citation be “issued by” a peace officer, which is Cite as 375 Or 516 (2026) 569
a question that the majority spends most of its time on. ___
Or at ___ (slip op at 25:4 - 40:13).10
1. Response to majority’s reading of Kenny
To briefly recap, in Kenny, the Court of Appeals
conducted a complete Gaines analysis of the FTA statute,
which, again, provides that a person commits the offense of
FTA “if the person has been served with a criminal citation
issued under ORS 133.055 to 133.076” and fails to appear as
directed. The court held that the legislature did not intend
the phrase “issued under ORS 133.055 to 133.076” to create additional elements of FTA. Kenny, 262 Or App at 706.
Instead, the legislature used the phrase to describe the type
of citation that would form the basis for the statute’s particular version of the crime of failure to appear. Id. at 708. The phrase serves to identify the statutes that were the source
of the citation. Id. at 706-07. The Kenny court based its holding on the text of the FTA statute: it looked to the definitions of “issued” and “under”; it observed that it would not
make sense to read “issued under” to mean “in compliance
with” because not all of the statutes in the range set out
in the statute actually establish requirements for citations;
and it explained that reading the statute to require compliance with the statutes would require inserting text that
the legislature had omitted. Id. at 706-08. In addition, the
Kenny court relied on the context of the FTA statute, which
includes other versions of the crime, which the legislature
needed to distinguish. Id. at 708-09.
I think the Kenny court’s statutory construction is
correct. And I disagree with the majority’s reading of Kenny.
The majority says “we do not view Kenny as resolving the question of who has legal authority to issue a criminal citation.” ___ Or at ___ (slip op at 27 n 18) (emphasis
added). That statement reflects a misunderstanding of the
primary question in both this case and Kenny: whether, in
10
Although there are multiple steps to defendant’s argument, the majority blurs them, spending most of its time construing the citation statutes. Instead of focusing on what it means for a citation to be “issued under” certain statutes, as required by the FTA statute, the majority focuses on what it means for a citation to be “issued by” a peace officer, under the citation statutes, even though the quoted phrases refer to different things: a source of legal authority and an action by a person.
570 State v. Sarria
an FTA case, the state must prove, as an element of the
offense, that the underlying citation was issued in compliance with requirements set out in ORS 133.055 to 133.076.
If the answer to that question is “no,” as the Kenny court
concluded, then it does not matter what the requirements
for criminal citations set out in the referenced statutes
are. That is why the Kenny court did not resolve questions
regarding those requirements.
The majority also says that “Kenny is factually distinguishable from this case.” ___ Or at ___ (slip op at 27
n 18). The majority bases that statement on the fact that, in
Kenny, the defendant argued that his citation was invalid
because a copy of it was not filed with the court, and, in this case, defendant argues that his citation was invalid because
it was not “issued by” a peace officer. But that factual difference does not make a legal difference. Again, the primary
question in both Kenny and this case is a statutory construction question about the elements of FTA. Statutory construction does not depend on the facts of a particular case.
When a court construes a statute, the construction applies
in different factual situations. The primary statutory construction question in Kenny is the same as in this case, as
the briefs in Kenny show.
In Kenny, the defendant argued that “in a prosecution for failure to appear on a criminal citation, the state
must prove beyond a reasonable doubt that the citation
was ‘issued under ORS 133.055 to 133.076.’ ” Appellant’s
Opening Brief at 9, State v. Kenny, 262 Or App 702, 327 P3d
548 (2014) (CA A148505). He further argued that the underlying citation in his case had not been “issued under” those
statutes because some of the requirements set out in those
statutes had not been satisfied. Thus, the defendant’s statutory construction argument about the elements of FTA in
Kenny was the same as defendant’s argument in this case.
And, after a thorough Gaines analysis focused on that question, the Kenny court rejected the defendant’s argument.
In an attempt to distinguish Kenny, the majority quotes a sentence from the section of the Kenny opinion where, after completing its statutory construction of
the FTA statute, the court applied that construction to the
Cite as 375 Or 516 (2026) 571
facts of the case and affirmed the trial court’s denial of the
defendant’s motion for a judgment of acquittal. ___ Or at ___
slip op at 27 n 18). The quote mentions that the citation in
Kenny was served by a peace officer, but that is not why the
court held that the citation was “issued under ORS 133.055
to 133.076.” The reason the court held that the citation was
“issued under ORS 133.055 to 133.076” is because it was the
type of citation governed by the referenced statutes, specifically, a citation for a misdemeanor or a felony that can be
treated as a misdemeanor:
“With that understanding of ORS 133.076, we readily
conclude that the evidence at trial was sufficient to support the first element. The state proved that defendant was
served with a criminal citation for first-degree criminal mischief. And, under ORS 133.055, one of the statutes enumerated in ORS 133.076, a peace officer has authority to issue
a criminal citation to a person if the officer has probable
cause to believe that the person has committed any felony that is subject to misdemeanor treatment under ORS
161.705, which includes Class C felonies like first-degree
criminal mischief. ORS 161.705(1)(a). Because satisfaction
of the first element in ORS 133.076 only requires the state
to prove, beyond a reasonable doubt, that the defendant was
served with a criminal citation that proceeded from the
source of, and as authorized by, ORS 133.055 to 133.076, a
rational factfinder could have found that the state met its
burden in this case. Accordingly, the trial court did not err
in denying defendant’s [motion for judgment of acquittal].”
262 Or App at 709 (emphasis added; footnotes omitted). Thus,
what mattered in Kenny was not who issued the citation
but rather that it was the type of citation governed by ORS
133.055 to 133.076, specifically, a criminal citation for a misdemeanor or felony that can be treated as a misdemeanor.
2. Additional reasons
In addition to those identified in Kenny, there are
several other reasons why this court should reject defendant’s construction of the FTA statute.
First, defendant’s construction allows defendants to
collaterally attack citations. As the state has pointed out,
“[t]his court generally has refused to interpret criminal
572 State v. Sarria
statutes containing an element requiring proof of a prior
event of legal significance—such as a prior conviction,
license revocation, or sentence of imprisonment—to allow
collateral challenges to the validity of that prior event.” E.g., State v. Jacob, 344 Or 181, 190, 180 P3d 6 (2008) (holding
that, when seeking a second firearm-minimum sentence,
the state is not required to prove that the first firearm-minimum sentence was valid); Bailey v. Lampert, 342 Or 321,
328, 153 P3d 95 (2007) (holding that, in a felon-in-possession-of-a-firearm case, the state is not required to prove that the underlying felony conviction was valid); State v. Sims,
335 Or 269, 275, 66 P3d 472 (2003) (holding that, in a driving-while-revoked case, the state is not required to prove
that the underlying revocation order was valid).
Second, if a defendant believes that a citation is
invalid, the defendant should move against the citation,
not disobey it. A similar rule already applies to warrants.
A defendant may not resist arrest pursuant to a warrant
on the ground that the warrant is invalid. State v. McClure,
355 Or 704, 713, 335 P3d 1260 (2014). But under defendant’s
construction of the FTA statute, which the majority adopts,
a person can intentionally disobey a citation and then successfully defend against an FTA charge if the state cannot
prove, for example, that the citation complied with ORS
133.055 to 133.076, including, for example, any requirement
that the citation be “issued by” a peace officer. I do not think that the legislature intended that.
Third, there is no practical reason to read the FTA
statute as defendant does. In fact, reading it as he does would lead to redundant requirements. As recounted above, in this
case, a deputy district attorney filed three documents with
the trial court: (1) a district attorney’s information charging the defendant with FTA; (2) an affidavit describing the basis
for the charge and requesting that the trial court authorize
a citation in lieu of an arrest warrant to bring defendant to
court; and (3) a proposed citation, with signature lines for
both the judge (who has to decide whether there is probable cause that the defendant committed the charged offense
and whether to authorize a citation) and for the peace officer (who cites the defendant). In keeping with ORS 133.110,
Cite as 375 Or 516 (2026) 573
that process enabled the judge to determine whether there
was probable cause to support the charge. If the judge determined that there was probable cause, then the judge had
two options. The judge could issue a warrant for defendant’s
arrest, which would result in defendant’s arrest, booking,
possibly custody, and possibly transport across the state,
because the defendant was charged in Union County but
lived in Marion County. Or the judge could authorize a citation in lieu of arrest, which would spare defendant (and law
enforcement and the courts) the costs associated with arrest
and any resulting detention and transport. The fact that a
citation in lieu of arrest requires a judge’s authorization is
likely why the deputy district attorney, in addition to filing
the information, filed a request for a citation. The citation is like a warrant in that it is not the charging instrument but is instead a means for the court to get the defendant to appear
in court. As with a warrant, there is a role for a peace officer to play after a district attorney’s information has been filed
and a judge has determined that there is probable cause. The
peace officer issues the citation to the person.
Defendant contends that the peace officer had to
do something more in order to be said to have “issued” the
citation. But it is not clear what. Did the officer, instead of the deputy district attorney, have to type up the citation
and present it to the court? Did the officer have to sign the
citation in a different place, perhaps alongside the judge’s
signature?
As he did in the lower courts, in this court, defendant continues to rely on ORS 133.069 to support his argument that the citation underlying his FTA case is invalid
because it was not “issued by” a peace officer. (E.g., “The
statutes governing the issuance of criminal citations—ORS
133.055, ORS 133.069, and ORS 133.110—are explicit with
respect to who may issue a criminal citation. Only peace officers may do so.” (Emphasis added.)). As discussed above, it
is not clear from the record that that statute—which applies
when a citation is issued with a form of complaint—applies
in this case. But even assuming for the sake of argument
that it might, the content of the statute itself suggests that
its requirements would not apply in a situation, like the
574 State v. Sarria
one in this case, where a district attorney’s information has
been filed and a judge has determined that probable cause
exists to support the charge and has authorized a citation
in lieu of arrest. That is because some of the requirements
of ORS 133.069 would be redundant or even nonsensical in
that situation.
For example, ORS 133.069(1)(c)(C) requires that the
citation include a “form of certificate in which the peace officer must certify that the peace officer has sufficient grounds
to believe that, and does believe, that the person named in
the complaint committed the offense specified in the complaint.” That requirement would be, at best, redundant,
in cases like this one where a deputy district attorney has
already filed a sworn statement describing the basis for the
charge and a judge has already determined that there is
probable cause to support the charge.
In addition, the requirement set out at ORS
133.069(2) applies only when a person is cited before a complaint is filed with the court, which is not what happened
here. ORS 133.069(2) requires that
“[t]he district attorney for the county shall review any
criminal citation issued with a form of complaint that is
to be filed in a circuit or justice court. The review must be
done before the complaint is filed.”
That requirement suggests that ORS 133.069 applies when
a peace officer initiates a prosecution by citing a defendant
based on the officer’s own assessment that there are sufficient grounds for doing so, and that it does not apply in
situations where an information has already been filed with
the court by the district attorney’s office and a judge has
already determined that there is probable cause to support
the charge, as happened here.
To summarize, I would reject defendant’s construction of the FTA statute, ORS 133.076. I would hold that, in
an FTA case, the state is not required to prove, as an element of the offense, that the underlying citation complied
with ORS 133.055 to 133.076. I would do so based on the
thorough statutory construction analysis done in Kenny, as
well as on our cases in which we have rejected arguments
Cite as 375 Or 516 (2026) 575
that we should interpret other criminal statutes to allow
for similar collateral challenges. E.g., Jacob, 344 Or at 190;
Bailey, 342 Or at 328; Sims, 335 Or at 275.
In accepting defendant’s construction of the FTA
statute, the majority appears to be motivated by a belief that
there needs to be a mechanism to enforce the requirements
for citations set out in ORS 133.055 to 133.076. I agree, but
the mechanism does not need to be (nor would the legislature have intended it to be) through a collateral challenge
to the citation in an FTA case. If a defendant thinks that a
citation does not comply with statutory requirements, the
defendant can move against the citation directly. See, e.g.,
O’Brien, 96 Or App at 501-02 (addressing a motion to quash
a subpoena on the ground that it did not comply with statutory requirements, including a requirement relating to who
could issue it).11
III. CONCLUSION
As mentioned at the outset, this case presents three
questions: (1) whether the Court of Appeals erred in affirming on an alternative basis that allowed it to avoid reaching the merits of defendant’s argument regarding the elements of FTA and the requirements for citations; (2) if so,
whether this court should remand this case to the Court of
Appeals to decide the merits of defendant’s argument in the
first instance; and (3) if, instead, this court addresses the
merits itself, whether defendant’s argument is correct. My
answers to those questions are as follows: (1) the Court of
11
The majority asserts that its opinion is narrow. ___ Or at ___ (slip op at 40:2). It is possible that the majority does so out of a concern about claims like the one that the Kenny defendant made—viz., that the underlying citation was invalid because a copy had not been filed with the court—or like some that the defendant in this case made in the trial court—viz., that, among other things, the underlying citation used a post office box address for defendant’s address, did not contain a phone number or address for the Union County Circuit Court, and contained the wrong incident date. The problem with the majority’s assertion is that the reasoning of the majority’s opinion applies to all requirements in the statutory range. The majority appears to want to set the requirement that it focuses on—namely, that a citation be “issued by” a peace officer—apart from other requirements, but nothing in the majority’s interpretation of the phrase “issued under” provides a basis for doing so. Consequently, the majority invites persons who have been cited to appear in lieu of being arrested to disregard their citations without fear of being successfully prosecuted for FTA if they can point to any deviation from the requirements in ORS 133.055 to 133.076. 576 State v. Sarria
Appeals erred in affirming on an alternative basis because
the state’s alternative argument fails under Outdoor Media,
independently of the fact that defendant entered a conditional guilty plea; (2) this court should remand this case to
the Court of Appeals so that that court can address defendant’s statutory construction argument in the first instance,
and in light of its own case law, especially Kenny and O’Brien, and with the benefit of briefing that addresses those cases
and ORS 131.035; (3) if this court does not remand this case,
it should reject defendant’s construction of ORS 133.076
and it should instead hold that, in an FTA case, the state is
not require to prove, as an element of the offense, that the
underlying citation complied with ORS 133.055 to 133.076.
Because my answers to those questions differ from the
majority’s answers, I respectfully dissent.
Garrett, J., joins in this dissenting opinion, and
Flynn, C.J., joins in “Part II-C,” and DeHoog, J., joins in
“Part II-A.”