No. 699 October 2, 2024 333
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
LUCINDA YVONNE WAYCASTER,
Defendant-Appellant.
Lake County Circuit Court
21CR36283, 22CR02806; A179051 (Control), A179052
David M. Vandenberg, Judge.
Submitted July 16, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Appeals dismissed as moot.
334 State v. Waycaster
POWERS, J.
In this consolidated appeal, defendant appeals from
two judgments imposing special conditions of probation.
Defendant argues that the trial court erred when it imposed
those special conditions in the judgments because they had
not been announced in her presence. The state argues that
the appeal is moot, because the special conditions have since
been reimposed in defendant’s presence when her probation
terms were extended. We agree with the state’s argument
and dismiss the appeals as moot.
Because the parties are familiar with the undisputed procedural facts, we do not provide an extended
recitation for this nonprecedential memorandum opinion.
Defendant assigns error to the trial court’s imposition of
five special conditions of probation in Case Nos. 22CR02806
and 21CR36283. In both cases, the disposition was the
result of a negotiated plea deal. In Case No. 22CR02806,
defendant was charged with first-degree failure to appear.
She pleaded guilty to that charge. Defendant and the state
agreed that she would enter drug court, and that, if defendant successfully completed that program, the conviction—
which would be held in abeyance initially—would be dismissed. If she was not successful, however, the judgment of
conviction would be entered, and she would be sentenced.
The requirements for the deferral were 24 months’ probation, during which defendant would be required to follow all
of the standard conditions of probation, to abide by the “drug
treatment conditions of probation, including the intensive
supervision/treatment court requirements,” and to serve 20
days in jail. In Case No. 21CR36283, defendant was charged
with reckless driving and fleeing or attempting to elude a
police officer. She pleaded guilty to reckless driving, and the
attempting to elude charge was dismissed. The disposition
was the same as in Case No. 22CR02806, with the addition
that there would also be a 90-day license suspension if a
judgment of conviction on that charge was entered. After
initially imposing the conditions without announcing them
at the original sentencing, the trial court orally described
the conditions before it entered the supplemental judgments.
Nonprecedential Memo Op: 335 Or App 333 (2024) 335
On appeal, defendant’s assignments of error concern
the manner in which the court imposed the special conditions of probation. Specifically, she argues that referring to
packages of special conditions, such as the “drug treatment
conditions of probation, including the intensive supervision/
treatment court requirements,” does not satisfy the requirement that the conditions that are spelled out in the judgment
be announced in defendant’s presence. Defendant argues
that, because the full terms of the conditions appeared for
the first time in the judgments, the preservation requirement is excused. Finally, defendant contends that the remedy for the error is to reverse and remand for resentencing.
The state remonstrates that defendant’s assignments of error are moot, arguing that, based on probation
violations for engaging in new criminal activity, defendant
“agreed to the extension of probation on the same terms,”
and that, at that probation-violation hearing, the court
“orally described the conditions not mentioned at the original sentencing.”1 The state further argues that, as a result
of defendant agreeing to the terms of the extended probation, defendant’s obligations no longer stem from the original judgments before us in this appeal. Defendant replies
that she did not agree to the terms and that the claims of
error are not moot because we can still reverse and remand
for resentencing.
It is well settled that when changed circumstances
render an appeal moot, it will be dismissed. See, e.g., State v.
Hemenway, 353 Or 498, 501,
302 P3d 413 (2013); Brownstone
Homes Condo. Assn. v. Brownstone Forest Hts.,
358 Or 26,
30,
361 P3d 1 (2015). Under ORAP 7.05(1)(c), whether an
appeal has become moot may be raised at any time during
the appellate process.
We need not address whether defendant agreed to
the terms of the extended probation. The claims of error
are moot because all the relief to which defendant would be
entitled if she prevails has already occurred. That is, the
remedy for a sentencing court failing to announce in the
1
The state also notes that the trial court removed one of the conditions that
defendant has assigned as error, which is an additional basis on which the challenge to that condition is moot.
336 State v. Waycaster
defendant’s presence a provision of the sentence that appears
in the judgment is for the defendant to be resentenced such
that the defendant can be present for the pronouncement of
all the terms of the sentence. See, e.g., State v. Anotta, 302
Or App 176, 178,
460 P3d 543, rev den,
366 Or 552 (2020)
(remanding for resentencing when probation conditions not
announced in open court); State v. Pickerel,
300 Or App 392,
393,
453 P3d 947 (2019) (remanding for resentencing when
probation violation fee was not announced in open court);
State v. Bowden,
292 Or App 815, 819,
425 P3d 475 (2018)
(remanding for resentencing when invalid special probation
conditions were imposed). That has already occurred in this
case. As the state’s argument explains, the operative judgments are now the ones extending defendant’s probation on
the same terms. The court pronounced the terms of those
sentences in defendant’s presence. Further, defendant has
not argued that there are any collateral consequences connected with the original challenged terms.
Because the remedy that defendant would be entitled to in this case has already occurred, the appeals in Case
Nos. 22CR02806 and 21CR36283 are moot.
Appeals dismissed as moot.
