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Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. VLADIMIR VLADIMIROVICH GLUSHKO, Petitioner on Review. (CC 209903037; CA A142224; SC S059136 (Control)) _____________________________________ STATE OF OREGON, Respondent on Review, v. HAROLD VERNON LITTLE, Petitioner on Review. (CC 981756M, 990259M; CA A141888, A141889; SC S059137) (Consolidated for argument and opinion) En Banc On review from the Court of Appeals.* Argued and submitted September 20, 2011. Zachary L. Mazer, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioners on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. LANDAU, J. The decisions of the Court of Appeals and the judgments of the circuit courts are affirmed.

*Appeal from Lane County Circuit Court, Cynthia D. Carlson, Judge. 240 Or App 464, 248 P3d 451 (2011). Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 240 Or App 464, 248 P3d 451 (2011).

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LANDAU, J. ORS 135.747 provides that, "[i]f a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed." The issue in these two cases is whether defendants' failures to appear at scheduled hearings amount to "consent" to a delay in proceedings within the meaning of that statute, and, if not, whether any delays caused by such failures to appear were nevertheless reasonable. We conclude that a mere failure to appear does not constitute consent within the meaning of ORS 135.747, but that, under the circumstances of these cases, the delays were reasonable. I. BACKGROUND

The relevant facts of each of the two cases are few and undisputed. State v. Glushko On February 22, 1999, the state charged defendant Glushko by information with one count of attempt to elude, one count of reckless driving, and one count of driving under the influence of intoxicants (DUII). A grand jury indicted defendant with those charges on March 5, 1999. A few weeks later, on March 26, 1999, defendant was arraigned and entered a "not guilty" plea. On April 30, 1999, defendant entered into a diversion agreement as to the DUII charge. As part of his diversion agreement, defendant signed an agreement and waiver form, in which he acknowledged that "[t]he court will terminate this diversion agreement if the court finds that you have violated the terms of the diversion agreement or that you 1

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were not eligible for diversion to begin with. The court will make this determination at a hearing where you can 'show cause' why you should not be removed from the diversion program. * * * Notice of such hearings will be sent to you by regular mail. If you fail to appear in court as directed by the mailed notice, the court will terminate the diversion agreement and prosecution of the offense will be resumed." (Boldface in original.) As part of the diversion agreement, defendant was also required to keep the court informed of his mailing address, which he originally disclosed as a residence in Citrus Heights, California. On June 11, 1999, defendant changed his pleas as to the first two counts, attempt to elude and reckless driving, to guilty. Five days later, the trial court sentenced defendant to 18 months' probation. On June 25, 1999, the trial court received notice that defendant failed to attend a victim impact panel, which was a requirement of his diversion program. The trial court ordered defendant to appear on July 12 to determine whether his diversion program should be revoked. Defendant attended that hearing, and the trial court decided to allow defendant to continue his diversion program on the condition that defendant attend a victim impact panel in California within 60 days. On May 12, 2000, the trial court, having received information that defendant had failed to complete another required treatment program, again ordered defendant to appear on June 2, 2000, to show cause why his diversion program should not be revoked. The order stated that "[i]f defendant fails to appear as ordered, a bench warrant shall be issued for his arrest." Defendant failed to appear at that hearing. Shortly after that, on June 6, 2000, the trial court terminated defendant's diversion, ordered that

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the prosecution should resume, and issued a warrant for defendant's arrest. Eight-and-a-half years later, on November 5, 2008, an officer executed the arrest warrant. An initial hearing was held of November 14, 2008, during which the trial court appointed an attorney for defendant. On November 25, 2008, defendant moved to dismiss the DUII charge for failure to comply with the statutory speedy trial requirement, ORS 135.747. The trial court denied the motion. Ultimately, defendant was found guilty of DUII after a jury trial on April 1, 2009. B. State v. Little On December 18, 1998, defendant Little was cited for driving under the influence of intoxicants (DUII) and ordered to appear on January 5, 1999, for arraignment. Defendant did so, and at that time, the trial court entered a release order, which required defendant to appear the following week on January 12. That hearing was rescheduled for January 19. Defendant did not appear, and the trial court issued an arrest warrant. On February 19, 1999, defendant was, again, arrested for DUII. The trial court entered a conditional release agreement and order, requiring defendant to appear on February 23. Defendant signed the agreement, acknowledging that he had read the agreement and understood the terms contained in the agreement. As relevant to our analysis, the agreement provided that "[f]or any failure to appear as required before a judge or other judicial officer, a warrant for arrest may be issued and [defendant] shall be subject to prosecution as per the following penalties: forfeiture of security as per security subsection; Felony charge: fine not to exceed $100,000 and five (5) years imprisonment; Misdemeanor charge: fine not to exceed 3

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$2,500 and one (1) year imprisonment." (Boldface in original.) Defendant also wrote on the form that his current address was on Hilltop Lane in Josephine County. That address, however, was the address of a friend who defendant was visiting; defendant actually resided in California. Defendant failed to appear at the hearing on February 23, and the trial court issued an arrest warrant. In 2002, defendant moved to Milwaukie, Oregon. Since then, defendant has maintained a residence in Oregon, maintained employment with several businesses in the state, and applied for and received an Oregon identification card and, a few years later, an Oregon driver's license. In 2008, defendant applied for employment that required an FBI background check. The potential employer notified defendant that there were two pending charges and an outstanding warrant for defendant's arrest in Josephine County. On August 8, 2008, defendant called the Josephine County clerk's office and scheduled an appearance date to resolve the outstanding warrant. On August 13, defendant appeared before the trial court. At that time, defendant received courtappointed counsel, and was released on condition that he attend all future court hearings. On March 3, 2009, defendant moved to dismiss all charges, asserting his statutory right to a speedy trial. After a hearing on March 17, the trial court denied the motion. The following day, defendant entered a conditional guilty plea, reserving the right to appeal the denial of his motion to dismiss. C. Proceedings Before the Court of Appeals Both defendants appealed, arguing that the trial courts erred in denying 4

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their motions to dismiss. Defendants noted that, under ORS 135.747, "[i]f a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed." Both argued that whether or not they were deprived of their statutory right to a speedy trial "hinge[d]" on the delay between the date the trial court issued the arrest warrant and the date the warrant was executed. In defendant Glushko's case, the delay amounted to 101 months (approximately eight and a half years). In defendant Little's case, the delay was 114 months (approximately nine and a half years). Defendant Glushko argued that "a defendant's express consent to delay is required before that delay is counted against him, and a defendant's failure to appear does not constitute express consent to delay. Thus, the * * * delay in this case was not attributable to defendant * * * [and] warrants dismissal, because no evidence in the record indicates that the delay was reasonable." Defendant Little argued likewise that he did not "expressly consent to any of that delay, and the state must justify the delay to render it reasonable. As the state failed to justify the delay in this case, the trial court erred by denying defendant's motion[] to dismiss." The Court of Appeals affirmed both cases without an opinion. State v. Glushko, 240 Or App 464, 248 P3d 451 (2011), State v. Little, 240 Or App 464, 248 P3d 451 (2011). Both defendants petitioned this court for review. We accepted review and consolidated the cases to consider whether the failure to appear at a hearing was "consent" to delay, as used in ORS 135.747 and, if it was not, whether the delay was reasonable nonetheless.

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D.

Parties' Arguments Before This Court On review, defendants argue that failure to appear at a hearing is neither

"an active request for delay in trial" nor "an open, clear, and unambiguous agreement to delay." In order to qualify as "consent," defendants contend, one must express "agreement to a request for delay by someone else." (Emphasis added.) Thus, in order for a defendant to "consent" to delay, the state must first request the defendant's consent, and then the defendant must provide "express consent" (i.e., consent which is "expressed openly, clearly, and unambiguously"). In any event, defendants assert, the delays in bringing their cases to trial -101 months in defendant Glushko's case and 114 months in defendant Little's -- were unreasonable because, in both cases, the state easily could have executed the warrants at an earlier time. Defendant Glushko notes that, during the six months following his failure to appear, he was still on probation for other charges. Arguably, he asserts, the state could have arrested him by notifying his probation officer of his failure to appear. Defendant Little similarly suggests that the state could have contacted him at two different points in time: (1) the state could have called his friend's phone number that he listed on his release agreement, obtained his California address, and notified him of the outstanding arrest warrant; or (2) the state could have arrested him once he moved to Oregon and provided his current address to the Department of Motor Vehicles. The state responds that, in both cases, defendants' failure to appear was consent to any resulting delay. The state asserts that conduct that "implie[s] a willingness to submit to a particular course of action" is consent and that, in this case, "defendants' 6

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conduct entitled the trial courts to conclude that they consented to an indefinitely delayed trial." Additionally, the state argues that, even if defendants' failures to appear were not consent to the resulting delays, their conduct in not attending a hearing for which they were legally required to attend renders any delay caused by their failures to appear reasonable. II. ANALYSIS As this court explained in State v. Davids, 339 Or 96, 100-01, 116 P3d 894 (2005), review of a trial court's decision on a motion to dismiss brought under ORS 135.747 entails a two-step analysis. First, we must determine the relevant amount of delay by subtracting from the total delay any periods of delay that defendant requested or consented to. Second, we then determine whether that delay is reasonable. In this case, the parties' arguments implicate both of those analytical steps, namely, whether a failure to appear at a hearing that a defendant is required to attend amounts to "consent" to a postponement within the meaning of ORS 135.747; and second, if not, whether delay occasioned by such a failure to appear renders any delay that results reasonable within the meaning of that statute. A. Consent We necessarily begin with the issue of consent, because it determines the amount of delay that is then subject to the reasonableness analysis that the statute requires. The issue is one of statutory interpretation. As such, we strive to ascertain the meaning of the statute most likely intended by the legislature that adopted it, by examining the statute's text, in context, and where appropriate, relevant legislative history 7

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and canons of statutory construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). What is now ORS 135.747 had its genesis in the territorial code, which provided: "If a defendant indicted for a public offen[s]e, whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary be shown." The Laws of the Territory of Oregon, ch XXXVI,

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