State v. England

No. 592              August 28, 2024                    545

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              GRANT DEWAYNE ENGLAND,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   19CR24470; A178600

  Heidi H. Moawad, Judge.
  Submitted on January 19, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert C. Hansler, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  MOONEY, J.
  Affirmed.
546                                         State v. England

        MOONEY, J.
         Defendant appeals from a judgment revoking his
probation and imposing a 180-day jail sanction. In a single
assignment of error, defendant argues that the trial court
erred in revoking his probation based on its finding that
defendant committed a new crime because it did not require
the state to prove that allegation beyond a reasonable doubt.
Defendant acknowledges that we have previously held that
proof beyond a reasonable doubt is not required in probation
revocation proceedings, State v. Fortier, 

, 

 (1975), but he asks us to overrule Fortier as plainly
wrong. The state responds that the case is moot because
defendant has already served the jail sanction imposed at
the revocation hearing, and that, regardless, his argument
fails on the merits. Although we conclude that the case is
not moot, we decline to overrule Fortier because we are not
persuaded that it is plainly wrong. We therefore affirm.
         “We review a trial court’s decision to revoke probation for an abuse of discretion.” State v. Hammond, 

, 

 (2008). However, we review any
legal conclusions predicating the revocation for legal error.
State v. Martin, 

, 

 (2022).
         In April 2020, to resolve three criminal cases
against him, defendant pleaded guilty to two counts of
strangulation constituting domestic violence, two counts of
fourth-degree assault constituting domestic violence, and
one count of unlawful use of a weapon. In each case, he was
sentenced to 60 months of probation, to be served concurrently. The terms of his probation provided that defendant
was prohibited from having any personal contact with one
of his victims, E, who also had a stalking protective order
against defendant. The trial court also required defendant
to participate in domestic violence treatment.
         In April 2022, when E let her dog outside one evening, defendant entered her apartment and refused to leave.
Police responded to the scene, and defendant’s probation
officer subsequently filed a report alleging that defendant
had violated the terms of his probation in all three cases. At
the subsequent probation revocation hearing, the trial court
Cite as 

 (2024)                                              547

continued defendant’s probation in two of the cases. In the
third case, the trial court revoked defendant’s probation and
imposed a 180-day jail sanction based on its findings that
defendant failed to obey all laws by violating the stalking
protective order and that he violated the condition of his
probation prohibiting personal contact with E. Defendant
appeals the revocation in the third case.1
         We first address the state’s contention that this
appeal is moot because defendant has completed the 180-
day jail sanction. Generally, an appeal from a judgment
revoking probation becomes moot once the defendant has
served the sanction imposed at the probation violation proceeding. State v. Morter, 

, 

(2022). However, if the defendant remains on probation after
serving the sanction, the trial court’s discretion to consider
the previous probation violation at a future probation violation proceeding is a collateral consequence that prevents
the appeal from being moot. State v. Stroud, 

, 

 (2018).
         In Stroud, we concluded that the defendant’s appeal
was not moot where the trial court continued the defendant’s probation but imposed a 30-day jail sentence as an
additional condition of her probation. 

. We reasoned
that because “the court has the discretion to look to [the
defendant’s] record to determine the sanction for any future
probation violation[,]” the defendant had met her burden to
identify a collateral consequence. 

. By contrast,
in Dunn v. Board of Parole, 

, 

, rev den, 

 (2021), we held that the defendant’s
challenge to a judgment revoking his post-prison supervision and imposing a 120-day jail sanction was moot. There,
following the sanction and revocation, the defendant was
convicted of a series of new offenses and sentenced to 120
months in prison followed by a term of post-prison supervision, to be served concurrently with his remaining supervision period. 

 The defendant argued that under Stroud, the
    1
      Defendant also appealed the judgments continuing his probation in the two
related cases. Those appeals were dismissed for lack of jurisdiction, and accordingly, those judgments are not directly before us in this appeal. However, as we
discuss, defendant’s continued probation in those two cases is relevant to the
issue of mootness in the case that is before us.
548                                          State v. England

possible adverse legal consequences with respect to future
sanctions for violations of his post-prison supervision precluded mootness. Dunn, 

. We rejected that
argument, noting that in Stroud, “the adverse legal consequence related to possible future sanctions for violations of
the probation the [defendant] was then serving,” whereas in
Dunn, “the possible adverse effect relate[d] to possible sanctions for future violations of post-prison supervision that
[the defendant] will serve after he completes a prison term
of 120 months on his new convictions.” Dunn, 

 (emphasis added).
         Here, we agree with defendant that the posture of
his appeal is more analogous to the defendant in Stroud than
the defendant in Dunn. Defendant remains on probation in
the two related cases until April 2025, and he is subject to
the same probation condition prohibiting personal contact
with the victims in those two cases as he was in the case in
which his probation was revoked. At defendant’s sentencing
for the underlying offenses, the trial court emphasized that
the domestic violence conditions applied in the concurrent
probation sentences and explained that if he “mess[es] up
[in] one place, you can get … dinged in all the cases.” When
defendant’s probation officer learned that defendant had
entered E’s apartment, he filed a violation report in all three
cases, and the court held a single revocation hearing. Under
those circumstances, it is highly probable that defendant’s
previous probation violation in the instant case would factor
into the trial court’s consideration of any future probation
violation in the related cases, and defendant has therefore
identified a collateral consequence sufficient to prevent his
appeal from being moot.
         Having concluded that the case is not moot, we turn
to the merits. Defendant argues, as he did below, that “for
a trial court to find that a probationer has violated probation by committing a crime, the state must prove that the
probationer committed the alleged crime beyond a reasonable doubt.” As defendant acknowledges, we have previously
held that proof beyond a reasonable doubt is not required in
revocation proceedings—rather, “proof by a preponderance
of the evidence is sufficient.” Fortier, 

.
Cite as 

 (2024)                             549

         We overrule precedent only when it is plainly wrong,
a rigorous standard satisfied only in exceptional cases, and
the party seeking to change a precedent must affirmatively
persuade us that we should abandon our prior decision.
State v. Civil, 

, 

 (2017).
         In asking us to overrule Fortier, defendant contends
that he raises a new argument that we did not previously
address. Specifically, defendant argues that while a court
may apply the preponderance standard to find that a defendant has committed an element of a crime when that element
constitutes a probation violation, a court is not permitted to
revoke a defendant’s probation based on the commission of
a new crime absent a valid criminal conviction. That argument, however, is similarly foreclosed by Fortier, in which
we also held that the trial court could revoke defendant’s
probation even though he had been acquitted of the criminal
charge that formed the basis of the probation revocation. 

; see also State v. Donovan, 

,

 (1988) (holding that if the state elects and the
trial court agrees to conduct a probation revocation hearing
before a criminal trial, a trial court’s finding that the state
has failed to prove a necessary element by a preponderance
of the evidence will collaterally estop the state from proving that element in a subsequent criminal trial on a new
offense). We are not persuaded that Fortier is plainly wrong,
and thus, we decline to overrule it. The trial court did not
err in applying a preponderance of the evidence standard at
defendant’s probation revocation hearing.
        Affirmed.