Ailes factors in Oregon

2025We do so despite our understanding that the exercise of discretion should be made with “utmost caution,” Ailes, 312 Or 382 , and should be “ ‘rare and exceptional,’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (quoting Hotelling v. Walther, 174 Or 381, 385 , 148 P2d 933 (1944)).

2025We do so despite our understanding that the exercise of discretion should be made with “utmost caution,” Ailes, 312 Or 382 , and should be “ ‘rare and exceptional,’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (quoting Hotelling v. Walther, 174 Or 381, 385 , 148 P2d 933 (1944)).

2024“To reverse based on an unpreserved, plain error, [we] must, in addition to determining that the error was not harmless, consider the factors that are rele- vant to the court’s exercise of discretion at step two of the Ailes framework.” Ortiz, 372 Or at 672 .

2024“To reverse based on an unpreserved, plain error, [we] must, in addition to determining that the error was not harmless, consider the factors that are rele- vant to the court’s exercise of discretion at step two of the Ailes framework.” Ortiz, 372 Or at 672 .

2025As noted, we do so in part because we have previously exercised discretion in similar circumstances, and the application of Cite as 343 Or App 37 (2025) 47 the Ailes factors to the circumstances here do not suggest a different result.

2025As noted, we do so in part because we have previously exercised discretion in similar circumstances, and the application of Cite as 343 Or App 37 (2025) 47 the Ailes factors to the circumstances here do not suggest a different result.

2025In response, the majority again cites State v. Reid, 312 Or App 540 , 492 P3d 728 (2021), in what appears to be its second step of the Ailes analysis, as support to justify its 1 As before, we do not need to reach defendant’s first assignment of error.

2025In response, the majority again cites State v. Reid, 312 Or App 540 , 492 P3d 728 (2021), in what appears to be its second step of the Ailes analysis, as support to justify its 1 As before, we do not need to reach defendant’s first assignment of error.

2025Ortiz I, 325 Or App at 142 . 2 State v. Inman, 275 Or App 920 , 366 P2d 721 (2015); State v. Horton, 372 Or App 256 , 535 P3d 338 (2023). 48 State v. Ortiz decision to exercise discretion in this case. ___ Or App at ___ (slip op at 5).

2025Ortiz I, 325 Or App at 142 . 2 State v. Inman, 275 Or App 920 , 366 P2d 721 (2015); State v. Horton, 372 Or App 256 , 535 P3d 338 (2023). 48 State v. Ortiz decision to exercise discretion in this case. ___ Or App at ___ (slip op at 5).

2025Ortiz I, 325 Or App at 142 . 2 State v. Inman, 275 Or App 920 , 366 P2d 721 (2015); State v. Horton, 372 Or App 256 , 535 P3d 338 (2023). 48 State v. Ortiz decision to exercise discretion in this case. ___ Or App at ___ (slip op at 5).

2025Ortiz I, 325 Or App at 142 . 2 State v. Inman, 275 Or App 920 , 366 P2d 721 (2015); State v. Horton, 372 Or App 256 , 535 P3d 338 (2023). 48 State v. Ortiz decision to exercise discretion in this case. ___ Or App at ___ (slip op at 5).

2025We do so despite our understanding that the exercise of discretion should be made with “utmost caution,” Ailes, 312 Or 382 , and should be “ ‘rare and exceptional,’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (quoting Hotelling v. Walther, 174 Or 381, 385 , 148 P2d 933 (1944)).

2025We do so despite our understanding that the exercise of discretion should be made with “utmost caution,” Ailes, 312 Or 382 , and should be “ ‘rare and exceptional,’ ” State v. Gornick, 340 Or 160, 166 , 130 P3d 780 (2006) (quoting Hotelling v. Walther, 174 Or 381, 385 , 148 P2d 933 (1944)).

2024But we have never stated that the Court of Appeals, exercising its discretion 17 Hickmann cited two earlier cases for that proposition, State v. Abel, 241 Or 465 , 406 P2d 902 (1965), and State v. Rupp, 251 Or 518 , 446 P2d 516 (1968).

2024But we have never stated that the Court of Appeals, exercising its discretion 17 Hickmann cited two earlier cases for that proposition, State v. Abel, 241 Or 465 , 406 P2d 902 (1965), and State v. Rupp, 251 Or 518 , 446 P2d 516 (1968).

2024To make that determination, the court must examine the following three factors: “(1) whether the claimed error [was] one of law; (2) whether the claimed error [was] obvious and not reason- ably in dispute; and (3) whether the claimed error appears on the record.” State v. Chitwood, 370 Or 305, 311 , 518 P3d 903 (2022); see also Vanornum, 354 Or at 629 (listing factors and explaining that an error is not apparent on the record if it requires the reviewing court to “choose among competing inferences”).

2024To make that determination, the court must examine the following three factors: “(1) whether the claimed error [was] one of law; (2) whether the claimed error [was] obvious and not reason- ably in dispute; and (3) whether the claimed error appears on the record.” State v. Chitwood, 370 Or 305, 311 , 518 P3d 903 (2022); see also Vanornum, 354 Or at 629 (listing factors and explaining that an error is not apparent on the record if it requires the reviewing court to “choose among competing inferences”).

2024We adopted the Ailes framework by “[e]xtrapolating” from State v. Brown, 310 Or 347 , 800 P2d 259 (1990).

2024We adopted the Ailes framework by “[e]xtrapolating” from State v. Brown, 310 Or 347 , 800 P2d 259 (1990).

2024But we have never stated that the Court of Appeals, exercising its discretion 17 Hickmann cited two earlier cases for that proposition, State v. Abel, 241 Or 465 , 406 P2d 902 (1965), and State v. Rupp, 251 Or 518 , 446 P2d 516 (1968).

2024But we have never stated that the Court of Appeals, exercising its discretion 17 Hickmann cited two earlier cases for that proposition, State v. Abel, 241 Or 465 , 406 P2d 902 (1965), and State v. Rupp, 251 Or 518 , 446 P2d 516 (1968).

2024We reversed, concluding that a remand to consider the issue of consent was not appro- priate because “a question not raised and preserved in the trial court will not be considered upon appeal unless upon an examination of the entire record the court can find that the error is manifest and that the ends of justice will not otherwise be satisfied.” 273 Or at 360 .17 Thus, in both the genesis of the Ailes framework and in one of our first cases applying it, we concluded that reversal on plain-error review could be appropriate where the gravity of the error warrants reversal to satisfy the ends of

2020Benz, 289 Or App at 372 (“Principles of judi- cial efficiency weigh against our ‘review in nearly all cases where review of unpreserved issues [is] under consideration’; thus, that factor often offers little useful guidance.” (quoting State v. Reynolds, 250 Or App 516, 525 , 280 P3d 1046 (2012)); Morgan, 274 Or App at 166 (rejecting as unlikely the state’s contention that we should not exercise plain-error discretion because, had the defendant objected below, the state could have developed an adequate record to support the restitu- tion amount).

2020Benz, 289 Or App at 372 (“Principles of judi- cial efficiency weigh against our ‘review in nearly all cases where review of unpreserved issues [is] under consideration’; thus, that factor often offers little useful guidance.” (quoting State v. Reynolds, 250 Or App 516, 525 , 280 P3d 1046 (2012)); Morgan, 274 Or App at 166 (rejecting as unlikely the state’s contention that we should not exercise plain-error discretion because, had the defendant objected below, the state could have developed an adequate record to support the restitu- tion amount).

2014F., 247 Or App 321, 325-26 , 269 P3d 83 (2011), in considering the Ailes factors, “plain error review of violations of ORS 426.100(1) is justified by the nature of civil commitment proceedings, the relative interests of the parties in those proceedings, the gravity of the violation, and the ends of justice.

2014F., 247 Or App 321, 325-26 , 269 P3d 83 (2011), in considering the Ailes factors, “plain error review of violations of ORS 426.100(1) is justified by the nature of civil commitment proceedings, the relative interests of the parties in those proceedings, the gravity of the violation, and the ends of justice.

2009In support of its position, the state cites State v. Gornick, 340 Or 160 , 130 P3d 780 (2006) (declining review of unpreserved objection to decision-making by trial court rather than by jury), and State v. Perez, 340 Or 310, 318 , 131 P3d 168 (2006) (stating that competing inferences regarding defendant’s strategy entailed the conclusion of no apparent error), in support of its position.

2009In support of its position, the state cites State v. Gornick, 340 Or 160 , 130 P3d 780 (2006) (declining review of unpreserved objection to decision-making by trial court rather than by jury), and State v. Perez, 340 Or 310, 318 , 131 P3d 168 (2006) (stating that competing inferences regarding defendant’s strategy entailed the conclusion of no apparent error), in support of its position.

2008Considering the Ailes factors, we chose to exercise our discretion, noting, “We particularly reject the state’s contention that the error here, which may have resulted in up to four months’ additional incarceration, was not of sufficient gravity to warrant our discretionary review.” Id.

2008Considering the Ailes factors, we chose to exercise our discretion, noting, “We particularly reject the state’s contention that the error here, which may have resulted in up to four months’ additional incarceration, was not of sufficient gravity to warrant our discretionary review.” Id.

2008In State v. Cleveland, 148 Or App 97 , 939 P2d 94 , rev den, 325 Or 621 (1997), the trial court erroneously imposed two “firearm minimum” sentences.

2008In State v. Cleveland, 148 Or App 97 , 939 P2d 94 , rev den, 325 Or 621 (1997), the trial court erroneously imposed two “firearm minimum” sentences.