State v. Oshiro

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                           MAY 12, 2022
                                                                    STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                Plaintiff and Appellee
      v.
Perry Brian Oshiro, II,                            Defendant and Appellant



                          Nos. 20210254–20210256

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.

DISMISSED.

Opinion of the Court by Tufte, Justice.

Nathan K. Madden, Assistant State’s Attorney, Williston, N.D., for plaintiff
and appellee; submitted on brief.

Tyler J. Morrow (argued) and Kiara C. Kraus-Parr (on brief), Grand Forks,
N.D., for defendant and appellant.
                              State v. Oshiro
                          Nos. 20210254–20210256

Tufte, Justice.

[¶1] Perry Oshiro II appeals from a district court order denying his motion to
correct his sentence. On appeal, Oshiro argues the court illegally sentenced
him because the court did not give him credit for all the days he previously had
served. Because Oshiro was released from prison while this appeal was
pending, we dismiss the appeal as moot.

                                       I

[¶2] In 2015, Oshiro pled guilty to failure to report a change of address as a
registered sex offender in violation of N.D.C.C. § 12.1-32-15(7) in case 53-2014-
CR-02462. He was sentenced, and his probation was later revoked. He was
then resentenced and placed back on probation. In 2020, Oshiro’s probation
was revoked again, and he was resentenced to serve 366 days with no probation
to follow. Oshiro filed a motion to correct his sentence to include credit for 26
days of time he previously had served. The court granted the motion and
entered an amended judgment to reflect additional credit. This sentence ran
concurrently with cases 53-2015-CR-00006 and 53-2018-CR-00487.

[¶3] Also in 2015, Oshiro pled guilty to theft of property in case 53-2015-CR-
00006. He was sentenced, his probation was later revoked, and he was then
resentenced and placed back on probation. In 2020, Oshiro’s probation was
revoked again and he was resentenced to serve 366 days to run concurrently
with the other two criminal cases on appeal here with no probation to follow.

[¶4] In 2019, Oshiro pled guilty to one count of bribery and one count of
conspiracy to commit bribery in case 53-2018-CR-00487. He was sentenced to
time served and placed on probation. In 2020, Oshiro’s probation was revoked
and he was resentenced to 366 days with no probation to follow, concurrent
with the 02462 and 00006 cases. Oshiro moved the court to correct his sentence
in all three of his cases, seeking credit “for 185 days served in 2019 in his
original Judgment in case 53-2018-CR-00487.” The court denied his request for
185 days’ credit, finding “the court credited the defendant with 185 days’ time
served at his original sentencing hearing, and he is not entitled to receive

                                       1
double-credit for purposes of his probation revocation sentence.” Oshiro
appeals the court’s order denying his motion to correct his sentence entered in
these three cases.

[¶5] Oshiro completed his revocation sentence that ran concurrently during
the pendency of this appeal. He was released from prison on December 13,
2021.

                                       II

[¶6] Although neither party raises mootness, this Court must consider the
threshold issue of mootness before it can reach the merits of an appeal. In re
W.O., 

, ¶ 10, 

. “When it becomes impossible for the
Court to issue relief, no controversy exists and the issue is moot.” Rodriguez v.
N.D. State Penitentiary, 

, 

. This Court does not
“render advisory opinions and will dismiss an appeal if the issue becomes
moot.” 

 “An appeal becomes moot when by lapse of time or by events
occurring prior to our decision this Court is unable to render effective relief.”

 However, “[a]n appeal is not moot if the trial court’s decision continues to
have collateral consequences for the appellant.” State v. Olson, 

, 

.

[¶7] While this Court has yet to directly address whether a defendant’s
release from custody renders his sentencing appeal moot, we have addressed
mootness in a similar context. In Rodriguez, the petitioner appealed from a
denial of his petition for writ of mandamus. 

. During the
pendency of the appeal, the petitioner became eligible for parole. Id. at ¶ 5.
Because “our decision would be purely advisory” given the petitioner’s recent
eligibility for parole, we refused to “discuss the merits of the case because the
issue is moot.” Id. at ¶¶ 6–7.

[¶8] Courts that have addressed this issue have concluded that defendants’
sentencing appeals are moot if they have completed their prison terms and are
released while their appeals are pending. See Owen v. United States, 

, 990–91 (8th Cir. 2019) (concluding defendant’s appeal was moot where “he
challenged only the term of imprisonment that has now expired”); United
States v. Solano-Hernandez, 761 Fed. App’x 276, 280 (5th Cir. 2019)

                                       2
(concluding defendant’s appeal of his sentence was moot because defendant
had completed his revocation sentence and was not sentenced to a term of
supervised release relating to that sentence); State v. Montgomery, 

 (Kan. 2012) (concluding defendant’s appeal of his probation revocation
sentence was moot because “the prison term that [petitioner] was ordered to
serve has been completed”); Casiano v. State, 

, 106–07 (Fla. Dist.
Ct. App. 2019) (concluding that a defendant’s appeal of his prison sentence was
moot because he had served his sentence and had been released from prison).
When a defendant is released from prison after completing his sentence and is
not subject to a term of supervised release or probation relating to that
sentence, there are no collateral consequences from the defendant’s sentence.
Owen, 930 F.3d at 990–91; Solano-Hernandez, 761 Fed. App’x at 280.

[¶9] Oshiro’s release from prison during the pendency of this appeal makes it
impossible for this Court to issue any sort of relief or remedy. Oshiro has
completed his concurrent revocation sentences. We cannot change credit for
time served because the prison term Oshiro was ordered to serve has been
completed. Further, the district court’s revocation sentence does not continue
to have collateral consequences for Oshiro because his sentence did not include
a term of supervised release or probation after he served his prison term.
Oshiro fully completed the terms of his revocation sentence, leaving no adverse
consequence to suffer as a result of the revocation sentence. Therefore, similar
to Rodriguez, this appeal presents a request for an advisory opinion because
no actual controversy remains. We conclude the appeal is moot.

                                     III

[¶10] The appeal is dismissed.

[¶11] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




                                       3