State v. Logan

                                    196

 On appellant’s motion to dismiss appeal and motion to vacate judgment filed
  September 8; decision in State v. Logan, 

, 

 (2021),
 vacated as moot, judgment of conviction vacated; appeal dismissed as moot
                              October 13, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    TED EDWARD LOGAN,
                      Defendant-Appellant.
                   Curry County Circuit Court
                     17CR45539; A166946
                                

   Cynthia Lynnae Beaman, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, for motion.
  Before Lagesen, Presiding Judge, and Powers, Judge,
and Kistler, Senior Judge.
   PER CURIAM
   Our decision in State v. Logan, 

, 

(2021), is vacated as moot; the judgment of conviction is
vacated; appeal dismissed as moot.
Cite as 

 (2021)                            197

        PER CURIAM
         In this criminal appeal, we issued an opinion affirming defendant’s conviction for driving under the influence of
intoxicants. See State v. Logan, 

, 

(2021). Defense counsel now moves under ORAP 8.05(2)(c)(ii)
to vacate the conviction and dismiss the appeal on the
ground that defendant has died and, in fact, died nearly a
year ago. Defense counsel represents that, had defendant
not died, he would have sought to challenge his conviction in
the Supreme Court. The state does not oppose the motion.
For the reasons that follow, we vacate our opinion, vacate
the judgment of conviction, and dismiss the appeal.
         Defense counsel has not specifically requested that
we vacate our opinion, just that we vacate the judgment of
conviction and dismiss the appeal. We nevertheless conclude
that, under State v. Hemenway, 

, 

(2013), vacatur of our opinion is warranted. There, similar
to the situation here, the Supreme Court issued its opinion
in the case after, unbeknownst to the court, the defendant
had died. 

. The defendant’s counsel moved under
ORAP 8.05(2)(c)(ii) to vacate the conviction at issue and
dismiss the appeal. 

. In addition, the defendant’s
counsel argued that that court’s opinion, as well as the opinion of our court, should be vacated. 

         The court agreed. It explained that, as to its decision, vacatur was required because the case had been moot,
and therefore outside the judicial power to resolve under
Yancy v. Shatzer, 

, 

 (2004), at
the time the opinion issued. Hemenway, 

.
Alternatively, the court reasoned that equitable considerations counseled vacatur of its decision and our decision.
Those equitable considerations were (1) that mootness did
not result from the defendant’s voluntary action and (2) that
“the concern underlying [ORAP 8.05(2)(c)(ii)] that the criminal judgment should be vacated if a criminal defendant
dies while pursuing a direct appeal that might result in the
reversal of the conviction” supported the notion that appellate opinions should also be vacated if a criminal defendant
dies during the pendency of an appeal. 

.
198                                          State v. Logan

         Hemenway’s mootness analysis—specifically, its
conclusion, based on Yancy, that moot cases are completely
outside the scope of the judicial power of Oregon courts
to resolve—has not survived Couey v. Atkins, 

, 

 (2015) (abrogating Yancy). Accordingly,
Hemenway’s conclusions that it is beyond the judicial power
for a court to issue an opinion in a case after the defendant
has died and that an opinion issued after the death of a
criminal defendant must be vacated, may no longer be correct. Nevertheless, the equitable considerations in favor of
vacatur identified in Hemenway have not changed and are
equally present in this case. Further, we see no grounds
for taking an approach different from the one taken by the
Hemenway court, even if we might have the discretion to
weigh the equities differently.
         Our decision in State v. Logan, 

, 

 (2021), is vacated as moot; the judgment of conviction
is vacated; appeal dismissed as moot.