State v. Johnson

                                    700

       Submitted January 24, appeal dismissed as moot March 22, 2023


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  ALBERT WAYNE JOHNSON,
                      Defendant-Appellant.
                   Union County Circuit Court
                      18CR17803; A176399
                                 

    Defendant appeals a June 2021 judgment finding him in violation of his
probation and extending his probation. He argues that the court’s finding of a
probation violation was in error, such that his probation should not have been
extended. While the appeal has been pending, the trial court entered a new
judgment in April 2022, revoking defendant’s probation based on new probation
violations and sentencing him to jail followed by a term of post-prison supervision (PPS). Defendant did not appeal the April 2022 revocation judgment.
Both parties take the position that the appeal is not moot because defendant
is still on PPS. Defendant contends that the reversal of the June 2021 judgment extending his probation would have the practical effect of removing him
from PPS and unwinding an attorney fee imposed in the April 2022 judgment.
Held: A reversal of the June 2021 judgment would not affect defendant’s PPS
term or the fee imposed on him in the April 2022 revocation judgment, because
the April 2022 judgment was not appealed. Under existing precedent, and absent
any explanation for how reversal of the appealed June 2021 judgment would
result in an unwinding of the April 2022 judgment, the appeal is moot.
   Appeal dismissed as moot.



   Thomas B. Powers, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hellman, Judge.
   AOYAGI, P. J.
   Appeal dismissed as moot.
Cite as 

 (2023)                              701

        AOYAGI, P. J.
         Defendant appeals a June 2021 judgment in which
the trial court found him in violation of his probation and
ordered his probation extended for 18 months. On appeal,
the parties disagree as to whether the court committed
reversible error in finding a probation violation on the basis
that it did. Meanwhile, in April 2022, while this appeal was
pending, the trial court entered a new judgment finding
defendant to have committed two new probation violations
and revoking his probation. We conclude that, because defendant did not appeal the April 2022 judgment, this appeal is
moot.
         In May 2018, defendant was convicted of two sex
crimes and sentenced to three years of probation. As a special
condition of probation, he was required to enter into and successfully complete an approved sex-offender treatment program as directed by Union County Community Corrections.
Eight days before his probation was set to expire, defendant’s probation officer referred him to a sex-offender treatment program. Defendant completed the intake process but
obviously could not complete the program—which typically
takes one to two years—in a week. The same day that defendant’s probation was set to expire, the court issued a showcause order for a probation violation, and, after a hearing,
the court found him in violation of probation for “[f]ailing to
complete sex offense treatment at direction of community
corrections.” The court adopted the state’s position that,
although defendant had not directly violated his probation,
his conduct earlier in the probationary period had contributed to his probation officer needing to wait to refer him to
sex-offender treatment until he was more stable, to avoid
setting him up for failure. The court continued defendant’s
probation for 18 months, reasoning that allowing him time
to complete sex-offender treatment while under supervision
would best serve the purposes of probation, i.e., public safety
and rehabilitation.
         Defendant appeals, challenging the finding that he
violated probation. In response, the state nominally defends
that finding. However, the state primarily argues that, even
if it was error to find a probation violation, the error was
702                                           State v. Johnson

essentially harmless, because the court had discretionary
authority to extend defendant’s probation without finding
a probation violation, and its reasoning would have supported a discretionary extension. See ORS 137.545(1)(a)
(the court may, in its discretion, extend probation); OAR
213-005-0008(2)(a) (the court may extend probation based
on finding a probation violation “or when necessary to
ensure that the conditions of probation are completely
satisfied”); State v. Westom, 

, 

 (2022), rev den, 

 (2023) (considering the
trial court’s discretion to extend probation without finding a probation violation as a possible alternative basis to
affirm the extension of the defendant’s probation, where
the court erroneously believed that the defendant’s conduct violated her probation); State v. Laizure, 

, 

 (2011), rev den, 

 (2012)
(same).

         After the parties’ briefing was complete, we
requested that they address the issue of mootness, noting
that defendant had been revoked from probation in April
2022 and sentenced to 90 days in jail and two years of post-prison supervision (PPS). In response, both parties have
taken the position that the appeal is not moot because defendant is still on post-prison supervision. We disagree.

          A case becomes moot when our decision “will no longer have a practical effect on the rights of the parties.” State
v. K. J. B., 

, 

 (2018) (internal quotation marks omitted); see also Garges v. Premo, 

, 

 (2018) (“Mootness results when a change in
circumstance or some intervening event has eliminated the
possibility that the requested relief can be provided.”). Here,
after this appeal was filed, the trial court found two new probation violations—failure to report, and failure to complete
sex-offender treatment—and revoked probation. Defendant
did not appeal the April 2022 probation-revocation judgment. Nonetheless, he argues that, if we were to reverse the
June 2021 order extending his probation, it would have the
“practical effect of removing him from PPS supervision” as
well as unwinding the imposition of attorney fees in connection with the revocation hearing.
Cite as 

 (2023)                             703

          That is not so. Even if we agreed with defendant
that the trial court erred in June 2021 in finding him in
violation of his probation, and even if that were to lead us
to reverse the order extending his probationary term, it
would not have the practical effects that defendant claims.
It is true that, but for the extension of his probation in June
2021, defendant would not have been on probation in April
2022, and, if he had not been on probation, he could not have
been revoked. But the fact remains that we lack authority
to reverse the April 2022 probation-revocation judgment, as
it was not appealed. See ORS 138.105(1) (giving us authority to “review the judgment or order being appealed”). If we
cannot reverse the probation-revocation judgment, then a
decision on the merits in this case cannot affect the PPS
term and fees imposed in that judgment.

         The cases that defendant cites as support for his
position that this appeal is not moot are distinguishable,
in that they all involved adverse consequences from an
appealed order or judgment. In State v. Hardges, 

, 

 (2018), the defendant appealed
judgments finding him in violation of probation and revoking probation, and we concluded that the appeal was not
moot, even though the defendant’s PPS term would expire
earlier than his probationary term would have expired,
because the defendant could prefer probation over PPS. In
Shelby v. Board of Parole, 

, 

, rev den, 

 (2011), the petitioner sought review
of a parole board order that placed him on parole instead of
unconditional release, and we concluded that the expiration
of the parole term did not render the appeal moot, because
the petitioner incurred parole supervision fees that he still
owed. In State ex rel Juv. Dept. v. Garcia, 

, 

 (2002), the youth appealed an order placing him in a youth correctional facility, and we held that the
youth’s transfer to a residential treatment program did not
render the appeal moot, as he was still subject to statutory
consequences from the commitment order on appeal.

        The case that is on point here is State v. Lomack,

, 

 (2020). In Lomack, the trial
court found a probation violation, extended probation, and
704                                                         State v. Johnson

added a new special condition of probation. 

.
The defendant appealed that judgment, challenging the
new condition. 

. While the appeal was pending,
the defendant was found to have violated the new condition,
and he was revoked from probation in a judgment that he
did not appeal. 

 We concluded that his pending appeal of
the earlier judgment was moot because, even if we held that
it was error to impose the new special condition of probation,
the defendant did not appeal the later probation-revocation
judgment, such that the revocation would still stand. 

. We noted that neither party had identified, and that
we were unaware 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.”1 

 at 599 n 1 (emphasis in original).
         This case is directly analogous to Lomack. The
adverse consequences that defendant wants undone and that
he claims keep this appeal from being moot—the imposition
of PPS and the imposition of a fee—have a “but for” connection to the June 2021 extension of probation, but they were
actually imposed in a different judgment that has not been
appealed, i.e., the April 2022 probation-revocation judgment.
We cannot reverse a judgment that has not been appealed
and is not before us. Or, at least, as in Lomack, neither party
has identified, nor are we aware of, any authority by which
reversal of a judgment imposing a probation condition would
result in reversal of a subsequent judgment revoking probation, absent both judgments having been appealed.2
    1
      Of course, as we later discussed in State v. Bates, 

,

 (2021), whether a subsequent judgment will moot an existing appeal
depends on the particular circumstances. In Bates, the defendant appealed a
judgment imposing probation conditions. 

. While that appeal was pending, the trial court entered a probation-violation judgment that continued probation on the existing terms. 

. We concluded that the appeal of the original
judgment was not moot, because the later judgment, which was unappealable,
did not reimpose the conditions anew but simply did not modify them. 

.
    2
      In a footnote in his mootness briefing, defendant summarily asserts that
he “also incurred additional costs when his probation was extended since he
was financially responsible for sex-offender treatment.” Defendant is referring
to a term in the 2018 judgment of conviction. We reject that argument because
defendant is no longer obligated to pay for sex-offender treatment (given that
he has been revoked from probation); there is no evidence that he ever paid for
Cite as 

 (2023)                                              705

         That leaves the issue of collateral consequences.
“Even if the main issue in a controversy has been resolved,
collateral consequences may prevent the controversy from
being moot under some circumstances.” Barnes v. Thompson,

, 

, rev den, 

 (1999)
(emphasis omitted); see also K. J. B., 362 Or at 785 (practical
effects of a court’s decision include both direct and collateral
consequences). Here, defendant has not identified any collateral consequences of the judgment on appeal. See K. J. B.,
362 Or at 786 (explaining that it is the appellant who must
initially identify any alleged collateral consequences).
           Accordingly, we conclude that this appeal is moot.
           Appeal dismissed as moot.




treatment; and, even if he did pay for treatment in the past, he does not explain
how our reversing the June 2021 judgment would result in the return of monies
that he paid to a treatment provider.