596
Submitted June 29, appeal dismissed as moot November 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANDRE J. LOMACK,
aka Andre Kelly Lomack,
Defendant-Appellant.
Multnomah County Circuit Court
16CR30449, 17CR71934;
A170551 (Control), A169998
477 P3d 1222
Defendant appeals a judgment adding a new probation condition to his probationary sentence for felon in possession of a firearm. The challenged condition
prohibited him from having any contact with his girlfriend. During the pendency of this appeal, defendant was found to have violated that condition, and,
as a result, his probation was revoked. Defendant did not appeal the probation-revocation judgment. The state contends that the present appeal is moot, while
defendant contends that it is not moot due to collateral consequences. Held: The
appeal is moot. Because defendant did not appeal the probation-revocation judgment, prevailing in the present appeal would not avoid the direct consequences of
the challenged judgment. Further, the three collateral consequences that defendant identifies are too speculative to make the appeal not moot.
Appeal dismissed as moot.
Shelley D. Russell, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the briefs for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Appeal dismissed as moot.
Cite as 307 Or App 596 (2020) 597
AOYAGI, J.
Defendant appeals a judgment adding a new probation condition to his probationary sentence for felon in
possession of a firearm (FIP). The contested condition prohibits him from any contact with his girlfriend, L. The same
condition was imposed in a separate criminal case in which
defendant was convicted of assaulting L, but, after defendant’s probation was revoked in the assault case, the trial
court added the no-contact condition to defendant’s probation in the FIP case. Defendant contends that the trial court
erred in doing so, because the FIP conviction has nothing to
do with L.
During the pendency of this appeal, defendant was
found to have violated the challenged condition by contacting L, and, as a result, his probation was revoked in the
FIP case. Defendant did not appeal the probation-revocation
judgment. For the following reasons, we conclude that this
appeal is moot and, accordingly, dismiss it.
FACTS
This is a consolidated criminal appeal, involving two
cases.
In Case No. 16CR30449, defendant was indicted for
felon in possession of a firearm, based on his having a firearm in his possession or control on May 22, 2016. The firearm was found in defendant’s vehicle during a traffic stop.
Defendant pleaded guilty in June 2016 and was convicted
and sentenced to three years of probation. His original probation conditions are not at issue.
Over a year later, in Case No. 17CR71934, defendant was convicted of misdemeanor fourth-degree assault
constituting domestic violence, based on his assaulting L on
October 28, 2017. He was sentenced to two years of probation. One of his probation conditions was that he have no
contact with L.
On January 9, 2019, defendant was found in violation of his probation in both cases—for failure to report in
Case No. 16CR30449, and for failure to report and violation of
the no-contact condition in Case No. 17CR71934. Defendant
598 State v. Lomack
was sanctioned but kept on probation with extended terms.
The court emphasized that defendant was prohibited from
contacting L, and defendant assured the court that it would
not be an issue again.
Defendant resumed contacting L within minutes
after the January 9 hearing. As a result, later the same
month, the trial court entered two judgments. The first
revoked defendant’s probation in the assault case and sent
him to jail on the assault conviction. The second added a
condition to defendant’s probation in the FIP case that prohibited him from contacting L. Regarding the latter, defendant objected to the condition as improper, arguing that the
FIP conviction had nothing to do with L, but the court said
that it could “see them being linked” in that it would be dangerous to L for defendant to possess a weapon. Defendant
appealed both judgments, which is the present appeal. He
raises a single assignment of error, challenging the imposition of the no-contact probation condition in the FIP case.
On November 13, 2019, during the pendency of this
appeal, defendant’s probation was revoked in the FIP case,
based on his contacting L and thus violating the no-contact
condition. Defendant stipulated to the violation and did
not appeal the probation-revocation judgment. Upon learning of that intervening event, we requested supplemental
briefing on the issue of mootness, which both parties provided. The state contends that the appeal is now moot, while
defendant contends that it is not moot due to collateral
consequences.
ANALYSIS
A case becomes moot “when a court’s decision will
no longer have a practical effect on the rights of the parties.”
State v. K. J. B., 362 Or 777, 785,
416 P3d 291 (2018); see
also Garges v. Premo,
362 Or 797, 801,
421 P3d 345 (2018)
(“Mootness results when a change in circumstance or some
intervening event has eliminated the possibility that the
requested relief can be provided.”). Here, because the trial
court has revoked defendant’s probation on his FIP conviction, and because defendant did not appeal the revocation
judgment, defendant’s challenge to a condition of his FIP
Cite as
307 Or App 596 (2020) 599
probation appears on its face to be moot. That is, even if we
were to agree with defendant that the no-contact condition
should not have been imposed in the FIP case, defendant
is no longer on probation, so the probation condition no longer applies. Moreover, because defendant did not appeal the
revocation judgment, he cannot obtain any relief from the
direct consequence of the imposition of that probation condition: the revocation of his probation for violating it.1
But direct consequences of a judgment are not the
only consequences relevant to mootness. Collateral consequences are also relevant. “Even if the main issue in controversy has been resolved, collateral consequences may
prevent the controversy from being moot under some circumstances.” Barnes v. Thompson, 159 Or App 383, 386,
977 P2d 431, rev den,
329 Or 447 (1999); see also K. J. B.,
362 Or at 785 (practical effects of a court’s decision include
both direct and collateral consequences). To avoid mootness, a collateral consequence must be probable, not merely
possible—“a speculative consequence does not prevent a
case from being moot.” State v. Hauskins,
251 Or App 34, 36,
281 P3d 669 (2012).
When the issue of mootness arises on appeal, generally, the appellant must identify any practical consequences
that he or she believes that our decision would have, and
then the respondent may seek to establish that the identified collateral consequences “either do not exist or are
legally insufficient.” K. J. B., 362 Or at 786. It is then for us
to “determine the existence and significance of [the identified] effects or consequences and to decide, as a prudential matter, whether [the] appeal is moot.” Dept. of Human
Services v. A. B., 362 Or 412, 426,
412 P3d 1169 (2018).
In this case, defendant has identified three practical consequences that he believes a decision on the merits in
this appeal would have. We address each in turn, explaining
why, ultimately, we agree with the state that the appeal is
moot.
1
Neither party has identified, nor are we are aware of, any authority by
which reversal of a judgment imposing a probation condition would result in
reversal of a subsequent judgment revoking probation for violation of that condition, absent both judgments having been appealed.
600 State v. Lomack
Defendant first contends that, if he prevails in this
appeal and thus establishes that the trial court should not
have required him to have no contact with L as a condition of his FIP probation, then, even though that would not
result in direct relief from the FIP probation-revocation
judgment, defendant “could possibly obtain relief from the
[revocation] judgment through a post-conviction claim for
inadequate assistance of counsel,” which could lead to his
release from prison and return to probation. The difficulty
with that argument lies in the standard for post-conviction
relief. Whether counsel’s performance fell below the constitutional standard must be determined from the perspective
of counsel at the time that counsel acted or failed to act, not
in hindsight. Jackson v. Franke, 364 Or 312, 327 n 9,
434
P3d 350 (2019).
If defendant decides to pursue post-conviction
relief, the post-conviction court will have to determine
whether his counsel’s performance fell below the constitutional standard—with respect to defendant stipulating to
the probation violation and not appealing the revocation
judgment—and, if so, whether defendant was prejudiced as
a result. Knowing how this court would rule on the merits of this appeal might be useful to the hypothetical post-conviction court, in that it would supply one piece of the
prejudice analysis (which, unlike the performance prong,
may be informed by later events), but the post-conviction
court having to assess for itself the merits of defendant’s
dismissed appeal is not an adverse consequence to defendant for mootness purposes. Although a lesser consideration, we also note that, as a practical matter, given that
defendant must be nearing completion of his 14-month
prison sentence on the FIP conviction, and given that
defendant has not yet filed any petition for post-conviction
relief, it is virtually impossible that defendant could obtain
post-conviction relief before completing his prison sentence.
That reality makes it all the more speculative that a merits
decision in defendant’s favor in this case would have any
practical effect on whether he obtains post-conviction relief.
The second collateral consequence claimed by defendant relates to the potential terms of post-prison supervision
(PPS) that the Board of Parole and Post-Prison Supervision
Cite as 307 Or App 596 (2020) 601
may impose on him when he is released from prison. Under
ORS 144.102(4)(a), the board may impose PPS terms that
it considers necessary to promote public safety or to assist
in defendant’s reformation, given his individual circumstances. Penn v. Board of Parole,
365 Or 607, 635,
451 P3d
589 (2019). Defendant contends that the board is more likely
to impose a PPS term prohibiting him from contact with L
if we issue a decision that the no-contact probation condition
was lawful than if we issue a decision that the no-contact
probation condition was unlawful. But, in dismissing this
appeal as moot, we are not deciding that the no-contact probation term was lawful—we are expressing no opinion on
that issue. In any event, PPS terms are independent of probation conditions, and we doubt that our resolving this case
on the merits would have any practical effect on what PPS
terms the board chooses to impose.
Finally, the third collateral consequence claimed by
defendant is that he may be liable for PPS fees when he is
released from prison and placed on PPS. Defendant argues
that “[a]n appeal from a probation revocation is not moot
when the defendant is subject to PPS fees to which he would
not have been subject had the court not revoked probation.”
This is not an appeal from a probation revocation, however,
and defendant does not explain how the outcome of this
appeal practically affects the imposition of PPS fees. To the
extent that defendant’s argument implicitly hinges on his
successfully obtaining post-conviction relief as to the FIP
probation-revocation judgment, we refer back to our discussion of the first claimed collateral consequence.
In sum, by not appealing the probation-revocation
judgment, defendant has lost the ability to continue challenging the lawfulness of the former probation condition
itself, because there would be no direct benefit to defendant
in our deciding this appeal in his favor, and because the
collateral benefits identified by defendant are too speculative. We therefore conclude that, as a prudential matter, the
appeal is moot.
Appeal dismissed as moot.
