State v. Sarria

Opinion

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).

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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.”

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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

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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 hear-

1 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.”

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(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 two- year 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.

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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.

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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.”

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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.

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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.

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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

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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,

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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)

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(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

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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.

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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.”

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(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.

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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.

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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.

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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

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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).

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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).

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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.

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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,

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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)).

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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).

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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).

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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:

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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

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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

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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.)

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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,

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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

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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.

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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

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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.

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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

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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).

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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.”

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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

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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.

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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

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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,

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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

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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.

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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.”