State v. Hall

                                  876

 Argued and submitted September 2, reversed and remanded for resentencing
                           September 29, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     STEVEN RAY HALL,
                      Defendant-Appellant.
                   Crook County Circuit Court
                      19CR22710; A173082
                               

   Michael R. McLane, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded for resentencing.
Cite as 

 (2021)                                877

         PER CURIAM
         Defendant appeals a judgment of conviction, pursuant to a plea of no contest, for driving under the influence of
intoxicants, ORS 813.010. The trial court sentenced defendant to probation. On appeal, defendant assigns error to the
trial court’s imposition of a condition of probation requiring
him to pay the costs of alcohol and drug screening evaluation and treatment. Noting that condition was not imposed
in open court, he argues that it is unlawful for that reason
and that the case must be reversed and remanded for resentencing. See State v. Broyles, 

, 

 (2019) (explaining principle and remedy).
         In response, the state does not dispute the error.
Instead, relying on our decision in State v. Nguyen, 

, 

 (2019), the state argues that
defendant’s appeal is moot because, in subsequent proceedings, the court held two hearings after which it entered judgments that, according to the state, “continued probation and
reimposed the original probation terms.” (Emphasis added.)
The state argues that this means that we should conclude,
as we did in Nguyen, that this case is moot because the judgment on appeal has, in effect, been superseded.
         In reply, defendant disputes that subsequent judgments on which the state relies have the effect that the state
claims. Defendant asserts that those judgments merely continued probation and did not “ ‘clearly’ re-impose [the challenged] condition—or impose anything at all.” Consequently,
according to defendant, a reversal and a remand for resentencing could have a practical effect on defendant’s rights.
         Whether a case is moot depends on the facts and
circumstances of the particular case. Here, the state, as the
proponent of dismissal, bears the burden of persuading us
that the case is, in fact, moot. Dept. of Human Services v. A. B.,

, 

 (2018) (“An appeal is not
moot unless the party moving for dismissal persuades the
appellate court that the dismissal is warranted.”). The state
has not done so in this instance.
         We do not read Nguyen to compel a different conclusion because we are not persuaded that the facts of this
878                                            State v. Hall

case are the same. Our decision in Nguyen appears to have
turned on our conclusion that the subsequent judgment in
that case had affirmatively “re-imposed” the challenged
conditions. 

.
          In this case, by contrast, we agree with defendant
that it is not clear that the court reimposed anything in the
subsequent judgments on which the state relies for its mootness argument. Rather, it is at least as plausible that the
judgments are ones that do not memorialize any decisionmaking about the conditions of probation and simply leave
intact the court’s previous decision. Cf. Wyatt v. Board of
Parole, 

, 

 (2009), rev den,

 (2010) (in parole board context, differentiating
between orders that actually impose conditions of supervision and embody a decision on the issue from those orders
that mention conditions of supervision but do not contain
a decision on the imposition of conditions). And if the challenged judgments do not embody an affirmative new decision about what conditions of probation should be imposed
on petitioner, there is no basis to think that reversing and
remanding in this case could not have a practical effect on
defendant’s rights. For those reasons, the state has not persuaded us that this appeal must be dismissed as moot.
        As for the merits, the trial court’s failure to
announce the challenged condition in open court means we
must reverse and remand for resentencing. See Broyles, 

. Accordingly, that is what we do.
        Reversed and remanded for resentencing.