State v. Cureno

                                   652

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
   Argued and submitted February 28, 2022; remanded for resentencing,
   otherwise affirmed March 15; petition for review denied July 20, 2023
                              (

)


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              JONATHAN DAVID CURENO,
                  aka Jonathan Cureno,
                   Defendant-Appellant.
               Jackson County Circuit Court
            17CR10612, 17CR34663, 18CR27806;
            A173902 (Control), A173903, A173904


  Lorenzo A. Mejia, 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.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)            653

        HELLMAN, J.
        Defendant appeals from judgments that revoked
his probation in three consolidated criminal cases. For
the reasons below, we affirm the judgment but remand for
resentencing.
         In his first and second assignments of error, defendant claims that the trial court erred when it accepted his
waiver of counsel at the two probation hearings prior to his
revocation, because the court did not conduct an appropriate colloquy at either hearing to ensure that the waivers
were knowing and voluntary. Defendant acknowledges that
he did not preserve those claims but asserts that preservation was not required in these circumstances where ORS
138.035 barred appellate review of the orders that continued his probation and where he alleges a violation of the
right to counsel.
         We do not decide the preservation issue in this
case. Assuming both that preservation is not required, and
that defendant could raise an independent challenge to
those prior sanctions in this appeal, any such claim is moot
because defendant has long since served the sanctions. See,
e.g., State v. Morter, 

, 

 (2022)
(dismissing appeal from probation-violation judgment that
was mooted by completion of sentence). This is not the kind
of case in which we would exercise our discretion under ORS
14.175 to consider the moot issue.
         To the extent that defendant’s claim is focused on
the trial court’s alleged use of the probation violations in
the revocation hearing, defendant was not prejudiced by any
error. See State v. Dowty, 

, 

 (2019), rev den, 

 (2020) (holding that the court
will “affirm a judgment revoking probation if we can determine that the defendant was not prejudiced by that error”
and recognizing that the standard for prejudicial error in
the probation context is equivalent to that of harmless error
in the trial context). The state presented unrebutted evidence of three criminal convictions as a basis for revoking
defendant’s probation. There is thus little, if any, likelihood
that excluding defendant’s prior sanctions for failure to
report to his probation officer would have affected the trial
654                                          State v. Cureno

court’s decision to revoke probation and impose the stipulated 48-month sentence. See, e.g., Dowty, 

(“In short, there was overwhelming evidence of defendant’s
failure to comply with his treatment rules—without considering defendant’s inculpatory statements—and there is little
likelihood that suppression of those statements would have
assisted defendant.”); State v. Johnson, 

,

 (2019) (where the court found that in light of
other strong evidence, there was “little likelihood that the
erroneously admitted evidence affected the court’s contempt
determination or its probation-violation determination”).
         ORS 138.105(9) bars our review of defendant’s third
assignment of error which challenges the court’s imposition of the stipulated sentence after revocation. State v.
Davis-McCoy, 

, 

 (2019).
Moreover, ORS 138.105(9) does not violate the Oregon State
Constitution or the United States Constitution. State v.
Colgrove, 

, 

 (2022).
         Finally, defendant asserts that the trial court erred
in sentencing him to 24 months of post-prison supervision.
The state concedes the error, and we accept the concession.
Although the 48 months in prison was part of the stipulated
sentence, the determinate sentence of two years of post-prison supervision was not. The stipulated sentence provided for up to two years of post-prison supervision, with a
total sentence not to exceed the statutory maximum of five
years. ORS 163.160(3). Because the sentence did not follow
the stipulation and was longer than the statutory maximum, we remand for resentencing.
        Remanded for resentencing; otherwise affirmed.