State v. Bates

                                      402

Argued and submitted July 20; remanded for resentencing, otherwise affirmed
                             October 27, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    TYLER JAMES BATES,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR64959; A172732
                                  

    Defendant, who pleaded guilty to private indecency and was sentenced to
probation, argues that the trial court erred in imposing a special condition of
probation in the judgment that it had not announced in open court at sentencing.
The state argues that the appeal is moot because, following a probation hearing,
the trial court entered a judgment finding defendant in violation and continuing him on probation. Held: The trial court erred when it included probationary
terms in the judgment that it had not announced in open court at sentencing. In
concluding that defendant’s appeal is not moot, the Court of Appeals overruled
State v. Nguyen, 

, 

 (2019). Nguyen is “plainly wrong”
insofar as it suggests that the existence of an unappealed probation violation
judgment is, in and of itself, determinative of mootness or that the party asserting mootness need not make any further showing.
    Remanded for resentencing; otherwise affirmed.



    Andrew Erwin, Judge.
   Morgen E. Daniels, 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 appellant. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Sercombe, Senior Judge.
    DeHOOG, J.
    Remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                           403

        DeHOOG, J.

        Defendant, who pleaded guilty to private indecency
and was sentenced to probation, argues that the trial court
erred in imposing a special condition of probation in the
judgment that it did not announce in open court at sentencing. The state does not address the merits of defendant’s
argument, but instead argues that defendant’s appeal is
moot because the trial court subsequently entered a judgment finding defendant in violation of—and continuing—
his probation. Defendant replies that his appeal is not moot.
For the reasons that follow, we agree with defendant that
his appeal is not moot. As to the merits, we conclude that
the trial court erred in imposing a condition in the judgment that it did not announce in open court. Accordingly, we
remand for resentencing.

         The pertinent facts are not in dispute. After the
court accepted defendant’s guilty plea, it proceeded to
sentence defendant to a probationary sentence in accordance with the parties’ stipulated sentencing recommendations. The prosecutor described the underlying offense
and explained that defendant and the victim lived in the
same apartment complex. The court asked whether defendant’s release agreement barred him from the apartment
complex. The parties indicated that the release agreement
prohibited defendant from being within 100 yards of the
victim, and that, although he still lived in the apartment
complex, his apartment was not within 100 yards of the victim’s apartment. The court responded, “I’m not going to be
okay with him living there,” and asked the parties whether
they needed to renegotiate their agreement in light of that.
Defense counsel responded that defendant understood and
wanted to go forward with sentencing. In announcing the
probationary terms, the court told defendant that he was to
have “absolutely, positively no contact with the victim” and
that he “cannot reside at this apartment complex due to the
nature of these offenses.” The written judgment additionally
provides that defendant may not “enter onto the premises,
or within 100 yards, of where the victim(s) resides, place of
employment, attends school, daycare, or motor vehicle without the prior written permission of the supervising officer.”
404                                                            State v. Bates

         Defendant argues on appeal that the written condition of probation was erroneous to the extent that it placed
additional prohibitions on him that the trial court did not
announce at sentencing. Defendant is correct that imposing
conditions of probation in a judgment that have not been
announced in open court at sentencing constitutes reversible
error generally entitling a defendant to resentencing; in fact,
the state often concedes such errors. See, e.g., State v. Reed-Hack, 

, 

 (2021); State v. Keen, 

, 

 (2020). Further, under those circumstances, a defendant is not required to preserve an argument
in the trial court, because the error appears for the first time
in the judgment. See State v. McLaughlin, 

, 

 (2020) (so noting, citing cases).
         In the present case, the state does not dispute that
the error occurred; rather, it argues that defendant’s appeal
is moot “because the court since has continued probation on
its original terms in a new judgment that defendant has not
appealed.” The state asserts that, because defendant did not
appeal the judgment continuing probation, “any relief that
this court could grant as to the original judgment would provide no effective relief with respect to the challenged condition.” The state notes that an appeal becomes moot when a
decision will no longer have a practical effect on the rights
of the parties and, under the rationale of State v. Nguyen,

, 

 (2019), argues that this case is
moot because, “even if this court reversed and remanded the
judgment on appeal, the new judgment that re-imposed the
special conditions would remain in place.” In support of its
mootness argument, the state has provided us with a copy of
a probation-violation judgment entered after this appeal was
underway that indicates that defendant admitted to having
violated his probation and that “probation is continued.”1
        In his reply brief, defendant contends that his appeal
is not moot. In support of that argument, defendant first
observes that, to the extent that the state is suggesting that
he was required to appeal from the later judgment continuing
    1
      The transcript of the probation-violation hearing is not in the record on
appeal, nor did the state provide it in support of its contention that the case is
moot. It relies solely on the existence of the judgment continuing defendant’s probation to support its argument.
Cite as 

 (2021)                                               405

probation to keep the case from becoming moot, that would
have been impossible because, under ORS 138.035(3),2 that
judgment was not appealable. See generally State v. Hunt,

, 

 (2020), rev den, 

(2021) (probation-violation orders continuing probation,
imposing sanctions, and providing a date for completion of
community service were not appealable because they did not
impose new or modified conditions of probation). Defendant
further observes that the probation-violation judgment on
which the state relies does not purport to reimpose the previously imposed conditions of probation. Thus, he argues, if
the original judgment were to be reversed and remanded
for resentencing to omit the challenged condition, the
probation-violation judgment would not have any independent, continuing vitality, such that defendant would be subject to the challenged probation term based on the probation-violation judgment alone. Given those observations, defendant
contends—and clearly posited at oral argument on appeal—
the rationale of Nguyen is incorrect.3
         Because defendant makes several compelling points,
we conclude that a closer look at Nguyen, the case on which
the state relies, is in order. In Nguyen, as in this case, the
defendant challenged special conditions of probation on the
ground that they had not been announced in open court
at sentencing. 

. The state responded
that the case was moot because a later probation-violation
judgment had continued the defendant’s probation. 

 In
its briefing on appeal, the state made three basic points.4
First, the state suggested, if the conditions had been orally
    2
      ORS 138.035(3) provides:
        “A defendant may appeal a judgment or order extending a period of probation, imposing a new or modified condition of probation or of sentence suspension, or imposing or executing a sentence upon revocation of probation or
    sentence suspension.”
    3
      And, as discussed more fully below, although the state still maintains that
this case is moot, it made some concessions at oral argument, including acknowledging that the subsequent probation-violation judgment was not appealable.
    4
      Although we typically take our previous decisions at face value without
delving into their underlying briefing or records for clues as to their reasoning,
the present case warrants at least some consideration of those matters. Nguyen
is a per curiam decision that does not explain its rationale, it established new
precedent, and we now contemplate overruling it. Under those circumstances, a
more complete understanding is warranted.
406                                                        State v. Bates

announced at the later probation-violation hearing, the “oral
pronouncement cured—or at least overrode—any error in
the original judgment.” Second, the state added, if the oral
pronouncement at the probation-violation proceeding did not
cure the problem, the “defendant had [a] right to appeal [the
probation-violation] judgment but has not done so.” Finally,
the state asserted, “[i]n any event, because [the defendant]
is subject to the new judgment, any relief that defendant
could receive in this appeal based on the manner in which
the original condition was imposed would have no effect.”5
The two-paragraph per curiam decision in Nguyen appears
to accept, without written analysis, each of the state’s premises, concluding:
   “Here, in light of the unchallenged judgment in which the
   court re-imposed the same special probation conditions
   that defendant challenges on appeal, a decision of this
   court regarding the propriety of the way by which those
   conditions were initially imposed would have no practical
   effect because, in any event, defendant would continue to
   be subject to the identical conditions.”

.
         On further examination, we conclude that, particularly in light of more recent cases examining these issues
in more depth, the propositions that the state asserted and
we adopted without explicit analysis in our Nguyen decision
do not establish that an appeal such as this one is moot.
We first consider the assumption in Nguyen that the defendant could have (and should have) appealed the probation-violation judgment that continued her probation in order to
maintain her challenge on appeal. The probation-violation
judgment in Nguyen included a checked box labeled “continued on probation,” another checked box labeled “comply with
previously imposed conditions of probation,” and the written
imposition of a 20-day jail sanction.
         In Hunt, we examined at length whether probation-violation orders that continued probation but imposed monetary and jail sanctions were appealable as imposing “new
or modified condition[s] of probation” under ORS 138.035(3).
   5
     The defendant in Nguyen did not respond to the state’s assertion that her
appeal was moot for those reasons.
Cite as 

 (2021)                             407

Hunt, 307 Or App at 77. Ultimately, we concluded that
“the legislature did not intend for ‘condition of probation,’
as that phrase is used in ORS 138.035(3), to include ‘sanctions’ imposed by the court for violating conditions of probation.” Id. We went on to consider whether a provision in a
probation-violation order that modified the deadline for completing previously ordered community-service hours constituted a modification of a condition of probation, concluding
that “we understand changing the deadline that community
service must be completed by to be modification of a sanction, [ ] not modification of a condition of probation.” Id. at
81. We agree with defendant that our conclusion in Hunt
calls into question the underlying assumption in Nguyen
that a subsequent probation-violation judgment that continued probation on the same terms and imposed a jail sanction was appealable, and, as noted, the state conceded at
oral argument in this case that the subsequent probation-violation judgment would not have been appealable under
ORS 138.035(3).

          That conclusion, however, does not resolve the issues
presented here. While it undermines the assumption in
Nguyen that the appealability of the subsequent probation-violation judgment informs the mootness inquiry, it does
not resolve the question of whether, or when, a subsequent
probation-violation proceeding renders a challenge to a condition of probation moot. To tackle that question, we must
first scrutinize the third unexamined proposition that we
accepted in Nguyen—that “a decision of this court regarding
the propriety of the way by which [probation] conditions were
initially imposed would have no practical effect because, in
any event, defendant would continue to be subject to the identical conditions” under the unappealed probation-violation
judgment. 

. That proposition is reiterated
by the state in its answering brief in the present case, where
it argues that, “even if this court reversed and remanded
the judgment on appeal, the new judgment that re-imposed
the special conditions would remain in place.” The state’s
understanding appears to be based on the assumption that,
because the probation-violation judgment continuing probation remains in effect while the case is on appeal, there is no
point in resentencing the defendant due to an error in the
408                                                             State v. Bates

original judgment because the court on remand would be
unable to alter the challenged condition on resentencing due
to the existence of the unappealed probation-violation judgment.6 That, in turn, might suggest that, to obtain actual
relief from the unlawfully imposed condition, defendant would
have had to appeal both judgments and obtained a reversal
of the probation-violation judgment (or both the original judgment and the probation-violation judgment), even though the
court’s error solely concerned the original judgment.
         The error in that reasoning is that it rests on the
assumption that a probation-violation judgment is, in effect,
a judgment that fully resentences the defendant, supplanting the original judgment insofar as its sentencing provisions are concerned. That is an erroneous assumption. As
defendant notes, under ORS 137.071(2)(g), a judgment document in a criminal action is one that “[s]pecif[ies] clearly
the court’s disposition, including all legal consequences the
court establishes or imposes,” including imprisonment, monetary obligations, terms and conditions of probation, etc.,
“and all other sentences and legal consequences imposed by
the court.” A probation-violation judgment such as the one
in this case or the one in Nguyen does not clearly specify all
of the legal consequences of a conviction. Not only do those
judgments not set forth the conditions of probation, they also
do not even indicate the length of the probation being continued. They are, in effect, dependent on, not independent of,
the original judgment in which probation and probationary
conditions are imposed.
       Our decision in State v. Dennis, 

,

 (2020), bears out that conclusion. In Dennis,
     6
       The state appeared to retreat somewhat from that position at oral argument in the present case. It maintained, however, that resentencing would have
“no practical effect” because, as we understand the argument, defendant had
raised no substantive objection to the challenged condition and the court would
likely reimpose it in any event. That argument, however, could be made in any
of the numerous cases in which we have remanded for resentencing due to an
error in failing to announce a condition in open court. It provides no support for a
conclusion that a case is moot. Rather, that argument is more akin to a harmless
error argument, and we have rejected such arguments in cases where the court
fails to announce a sentencing provision. See, e.g., State v. Macy, 

, 

 (2021) (court’s failure to announce imposition of fee in open
court was not harmless because the defendant lost the opportunity to make an
argument in support of suspension of fee).
Cite as 

 (2021)                                   409

the trial court placed the defendant on probation subject to
numerous conditions that it announced in open court, but
the written judgment imposed several additional fees that
the court had not announced. 

. The defendant appealed, challenging the belated imposition of those
fees. 

. As it did in this case and in Nguyen, the
state contended that the appeal was moot because the court
had subsequently entered a judgment finding a probation
violation and the defendant had not appealed that judgment. 

 Thereafter, the defendant did in fact appeal from
the probation-violation judgment, and we consolidated the
two appeals. 

. We rejected the state’s mootness
argument:
       “With respect to mootness, we are unpersuaded that
   the appeal [of the original judgment] is moot. Although
   the trial court continued the terms of probation in a later
   judgment entered in September 2019, it did not impose the
   terms anew. Indeed, the trial court expressly declined to
   ‘reiterate the fines and fees after the fact,’ as the state had
   requested, and instead simply continued the terms of probation. Under the circumstances, the appeal is not moot.”
Dennis, 

 (emphasis in original). With
respect to the appeal of the probation-violation judgment,
we stated:
   “We consolidated [the original and probation violation]
   appeals at defendant’s request. It appears that defendant
   appealed the [probation violation] judgment out of an
   excess of caution, because of the state’s mootness argument
   regarding the first appeal. Given our disposition and the
   lack of any assignment of error with respect to the [probation violation] judgment, we affirm that judgment.”

 (emphasis added). Accordingly, we “remanded
for resentencing” in the initial appeal in Dennis based on
the court’s failure to announce the challenged conditions at
sentencing, and we affirmed the later probation-violation
judgment. 

.
         Several things are apparent from Dennis. First, we
clearly did not view the subsequent probation-violation judgment as essentially a stand-alone judgment that supplanted
the sentencing provisions of the original judgment. If we
410                                                State v. Bates

had viewed it that way, we would likely have recognized that
the resentencing we ordered as to the original judgment was
meaningless because the unreversed probation-violation
judgment would continue to subject the defendant to the
original probation conditions, including the erroneous ones.
Thus, to the extent that Nguyen stands for the proposition
that the existence of a later probation-violation judgment
that maintains the previously imposed conditions of probation precludes relief from those conditions on resentencing,
it cannot be reconciled with Dennis.
          Nor can Dennis be viewed as holding that, to obtain
relief from an erroneous term of probation, a defendant must
appeal both the original judgment imposing that term and a
subsequent probation-violation judgment. That is so for two
reasons: First, we described the defendant’s appeal from the
probation-violation judgment there as being undertaken in
“an excess of caution,” 

 implying that it was unnecessary.
Second, and more importantly, were the state’s underlying
assumption in these cases correct, that a later probation-violation judgment essentially supplanted the original, it
would have been necessary in Dennis to reverse rather than
affirm the later judgment for the defendant to obtain effective relief on resentencing. We did not do that in Dennis;
rather, we left the probation-violation judgment in effect,
and reversed only the original judgment and remanded for
resentencing to allow the trial court to correct the error that
occurred with respect to the terms of probation.
       The state argues that Dennis supports, rather than
undermines, its position. It argues that, in Dennis,
   “[the] defendant had appealed from both judgments, and
   the appeals were consolidated; thus, both judgments were
   properly before this court. Moreover, the record of the
   later proceeding affirmatively showed that, at the later
   PV hearing, the trial court had declined the state’s invitation to orally pronounce the probation conditions originally
   imposed, partly on the ground that defendant had already
   paid the financial obligations that he challenged. … But,
   here, neither of those circumstances is present.”
The state’s suggestion that the fact that “both judgments
were properly before this court” is material cannot be
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 (2021)                                                  411

reconciled with the statement in Dennis that the defendant’s
appeal of the probation-violation judgment there was done
in “an excess” of caution; it also cannot be reconciled with
the fact that, in Dennis, we did not disturb the probation-violation judgment when we remanded for resentencing
based on the errors in the original judgment.7
          That brings us to the state’s other point—that in
Dennis, the record of the probation-violation hearing affirmatively showed that the court had not corrected the original error during the probation-violation proceeding. We
agree with the state that that may well be pertinent to the
mootness analysis, but not in a manner that is helpful to the
state here. An appeal becomes moot when a decision of the
issue on appeal will have no practical effect on the rights of
the parties. Dept. of Human Services v. A. B., 

, 

 (2018). It is the party seeking dismissal
on mootness grounds that must establish that a case is moot.

 (citing Brumnett v. PSRB, 

, 

(1993)).
        The state’s assertions in Nguyen (repeated in Dennis
and in this case), described above, essentially reverse that
burden. In Nguyen, the state effectively suggested that
an oral pronouncement of probation conditions at a later
probation-violation hearing might have cured the error complained of on appeal; it went on to suggest that the case was
moot because the defendant failed to establish that the error
was repeated at the probation-violation hearing, which he
needed to have done by appealing the resulting judgment. To
the extent that the state was positing that something that
happened in the trial court subsequent to the appeal mooted
the appeal, it was the state’s burden to make that showing;
it was not sufficient for the state to posit that something
might have occurred to render the appeal moot and leave it
up to the defendant to show that it did not. As is clear from
    7
      Moreover, the state’s position, at least in the abstract, is hard to reconcile
with the basic proposition that a challenge to the original imposition of a condition of probation is generally not something that a defendant may challenge by
appealing from a judgment finding the defendant in violation of that condition.
See generally State v. Maack, 

, 

, rev den, 

 (2015) (appellate courts will generally not “consider the validity of a probation
condition in the context of an appeal from a probation-revocation proceeding that
was based on the violation of the belatedly challenged condition”).
412                                           State v. Bates

Dennis, we can and will examine events that occur in subsequent probation-violation proceedings that are relevant to
a mootness inquiry if those are brought to our attention.
But we will not speculate about what may or may not have
occurred at a subsequent proceeding or shift the burden to
the opposing party to counter such speculation.
         We recognize that things do occur regularly at subsequent probation-violation hearings—and may be embodied in subsequent probation-violation judgments—that moot
an appeal challenging the imposition of a condition of probation. But mootness is not established by the mere existence of a subsequent probation-violation order or judgment,
nor is it dependent on the appealability of the subsequent
order or judgment under ORS 138.053(3). The focus is on the
“practical effect.” For example, in State v. Lomack, 

, 

 (2020), the defendant appealed the
addition of a new condition of probation. While the appeal
was pending, the defendant committed a violation and the
court revoked his probation in a judgment that, although
it was appealable, he did not appeal. 

. We concluded that the appeal of the underlying judgment was moot
because, “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.” 

. Similarly,
we held that a defendant’s challenge to conditions of probation had become moot when she had “been discharged
from probation, [was] no longer subject to the probation
conditions that she challenge[d], and [had] not identified
any persisting collateral effects of those conditions.” State
v. Phillips, 

, 

, rev den, 

 (2020). That conclusion, likewise, was not dependent on the existence, or the appealability, of a subsequent
judgment.
         Of course, there are also situations where a challenge to the imposition of a condition of probation can be
moot even when a defendant remains on probation—for
example, where the defendant in a subsequent probation-violation proceeding specifically agrees to abide by the probationary condition challenged in the appeal, or where the
court makes a significant modification to the challenged
Cite as 

 (2021)                             413

term. If a sufficient record is presented to this court by the
party asserting mootness as to what happened in the subsequent proceeding, and if the opposing party does not identify
sufficient collateral consequences to prevent the case from
being moot, we will conclude that the case is moot. That
decision may sometimes, but certainly not always, be based
on the contents of a subsequent judgment, and whether that
subsequent judgment is appealable or has been appealed is
unlikely to be dispositive.
         In sum, we conclude that the state has not demonstrated that the present appeal is moot. Its assertion of mootness rests solely on the presentation of a probation-violation
judgment that indicates that probation is continued and
does not modify the challenged terms of probation. If the
specific circumstances of the probation-violation hearing
that occurred in this case would render defendant’s appeal
moot, it was incumbent on the state to show that. It has not
done so. To the extent that Nguyen suggests that the party
asserting mootness need not make such a showing, or that
the existence of an unappealed (or unappealable) probation-violation judgment is, in and of itself, determinative of mootness, we overrule it.
         We do not undertake overruling of our prior case
law lightly but do so only when we are able to conclude that
a prior case is “plainly wrong.” That standard is “a rigorous
standard grounded in presumptive fidelity to stare decisis.”
State v. B. A. F., 

, 

 (2018). Under
State v. Civil, 

, 

 (2017), we
examine “the dispositive substantive issue and our precedent’s consideration of that issue, so that we can appreciate the reasoning that led us to the earlier conclusion.” We
cannot undertake such an examination “without an appreciation of what we did not address” in the prior case. 

(emphasis in original). In Civil, we concluded that the prior
case under scrutiny was “materially incomplete with respect
to three fundamental considerations” relating to the statute
it was interpreting. 

.
        This case similarly reexamines “three fundamental
considerations” embodied in the Nguyen decision. Nguyen, as
noted above, was a two-paragraph per curiam decision that
414                                             State v. Bates

presented no written analysis, but merely a one-sentence
conclusion that “in light of the unchallenged judgment in
which the court re-imposed the same special probation conditions that defendant challenges on appeal, a decision of
this court regarding the propriety of the way by which those
conditions were initially imposed would have no practical
effect because, in any event, defendant would continue to
be subject to the identical conditions.” 

.
We therefore are unable to appreciate the reasoning of that
decision.
         As for what it “did not address,” Civil, 

, as our discussion above indicates, Nguyen did not
address (1) whether the state’s assertion that the probation-violation judgment was appealable was correct; (2) whether
the state was correct in its implicit assertion that the remand
for resentencing to correct the erroneous term in the judgment would have no practical effect because the defendant
would nonetheless be bound to the erroneous term due to
the existence of the probation-violation judgment; and
(3) whether the state was correct in its implicit assertion
that defendant bore the burden of showing that nothing
at the probation-violation hearing had mooted the appeal.
Were those three points minor ones that were omitted on
the way to reaching a well-reasoned conclusion in Nguyen
that the appeal was moot, we would not necessarily conclude
that Nguyen was “plainly wrong.” Those three points, however, were not minor ones—they were the only three points
on which the (admittedly opaque) conclusion of mootness
rested in Nguyen.
         Moreover, as explained at length above, in addition
to the fact that the first point seems doubtful in light of the
in-depth analysis of appealability in Hunt, the assumption
in Nguyen that resentencing would have no practical effect
in light of the existence of the probation-violation judgment
cannot be reconciled with either the analysis or the result
in Dennis, which contained a more complete discussion of
the issue. Thus, although it is not specifically addressed
as a consideration in Civil, the analysis above makes clear
that Nguyen directly or indirectly conflicts with other cases,
which leads to unnecessary confusion, an excess of litigation, and potentially inconsistent results. For those reasons,
Cite as 

 (2021)                                                  415

we conclude that Nguyen was plainly wrong and should be
overruled.8
         To summarize, this case is not moot. Defendant is
correct that the court included probationary terms in the
judgment that were not announced in open court at sentencing. That error entitles defendant to resentencing. See
generally State v. Anotta, 

, 

, rev den, 

 (2020) (appropriate remedy when
court improperly imposes conditions of probation in judgment that were not announced at sentencing is remand for
resentencing).
           Remanded for resentencing; otherwise affirmed.




    8
      Because this opinion overrules our existing precedent, the panel specifically advised all members of the court of the effect of its decision, but neither the
Chief Judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.