State v. Nieto

792                  March 12, 2025               No. 217

   This is a nonprecedential memorandum opinion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.
               JOEL CRISTIAN NIETO,
               aka Joel Christian Nieto,
                 Defendant-Appellant.
            Washington County Circuit Court
                 19CR78914; A179144

  Brandon M. Thompson, Judge.
  Submitted April 29, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office Of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Appeal dismissed as moot.
Nonprecedential Memo Op: 

 (2025)            793

        PAGÁN, J.
         Defendant appeals from a judgment that found him
in violation of the terms of his probation and then modified
his probation. Defendant assigns error to the court’s finding
that defendant violated the terms of his probation, arguing
that there was insufficient evidence. The state argues that
defendant’s appeal is moot because he has finished serving
his probation. Defendant counters that he may face collateral consequences as a result of the judgment, and therefore
the appeal is not moot. Under the circumstances, we agree
with the state, and dismiss this appeal as moot.
         Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, and sentenced to
24 months of bench probation. As a condition of his probation, he was required to undergo an alcohol evaluation
and engage in any resulting treatment recommendations.
Although alcohol treatment was recommended, the treatment program refused to accept defendant into the program because he had outstanding untreated mental health
issues—namely that he was not taking a prescribed mental
health medication. Defendant thus did not enter the alcohol treatment program. As a result, the trial court ordered
defendant to show cause for why he should not be found in
violation of his probation. Defendant argued that receiving
mental health treatment was not a condition of his probation and that he had received an alcohol evaluation as
required. The court reasoned that defendant had willfully
chosen to stop taking his prescribed medication, which
“would have helped him take the path forward” to alcohol
treatment, and, accordingly, found defendant in violation of
his probation. In turn, the court converted the bench probation into formal probation, and imposed new mental health
conditions as part of probation—but kept the length of probation the same. Defendant’s probation ended in January
2024, after he filed this appeal, but before its submission for
consideration.
         On appeal, defendant argues that there was insufficient evidence to support a finding that he had violated the
terms of his probation because the trial court did not impose
mental health conditions as part of the initial probation
794                                              State v. Nieto

package. The state counters that the appeal is moot, and
that in the alternative, the evidence was sufficient. At the
request of the Appellate Commissioner, the parties filed
supplemental briefing on the issue of mootness.
          We do not typically decide cases that have become
moot. State v. Preston-Mittasch, 

, 

, rev den 

 (2022). “An issue is moot if the
court’s decision on the matter will no longer have a practical effect on the rights of the parties.” 

 Once probation
has ended, any errors stemming from it are typically moot.
See, e.g., State v. Smith, 

, 

(2008) (dismissing as moot a challenge to a probation violation after probation ended). Collateral consequences of a
judgment may prevent a controversy from being moot. Dept.
of Human Services v. A. B., 

, 

(2018). “A collateral consequence for purposes of mootness is
a probable adverse consequence to the defendant as a result
of the challenged action.” State v. Hauskins, 

, 

 (2012) (emphasis added). “The record must
show more than a ‘mere possibility’ that collateral consequences will occur.” 

 The burden of persuasion is borne by
the party alleging mootness, but “it will be up to the appellate court to determine the existence and significance of …
[collateral] consequences and to decide, as a prudential matter, whether an appeal is moot.” A.B., 

.
         Defendant identifies the following collateral consequences: 1) the imposition of the mental health conditions,
2) that the sentence was served in public, and 3) he requires
an exoneration in order to succeed in any future malpractice
claim. We address each briefly.
         First, Defendant argues that the imposition of mental health conditions is a collateral consequence that would
not have existed if not for the finding of a probation violation.
Putting aside whether the imposition of the condition itself
was an adverse consequence, the court had the power to
implement a mental health requirement even in the absence
of a probation violation. See ORS 137.540(9)(a) (“The court
may at any time modify the conditions of probation.”); State
v. Laizure, 

, 

 (2011), rev den

 (2012) (court could change terms of probation for
Nonprecedential Memo Op: 

 (2025)                           795

cause, even in the absence of a probation violation). The
record demonstrates that the court had cause to modify probation to include mental health conditions, and because it
had such power regardless of whether a violation was found,
we cannot say that the outcome would have been different.
Thus, there is no probable adverse consequence here.
         Second, defendant argues that the sanction was
effectively served in public, relying on State v. Langford, 

, 

 (2013). But Langford is inapposite because it is not a probation case, and regarded a sentence in which the defendant was placed on a work crew,
which was in the view of the general public, which is unlike
the probation at issue here. We are not persuaded by defendant’s contention.
         Third, defendant argues that in order to succeed on
a malpractice claim against defense counsel, he will need an
exoneration, and thus the appeal is not moot. See Gwynne v.
Myers, 

, 563 n1, 

, rev den 

 (2024) (discussing that to sue for malpractice regarding a probation revocation, a plaintiff must first obtain an
exoneration); Stevens v. Bispham, 

, 

(1993) (originating the exoneration rule for malpractice
claims). But defendant hasn’t identified what malpractice
might have been committed. The mere assertion that a malpractice claim could be brought is insufficient, especially in
a posture where a party is not inherently challenging the
effectiveness of their counsel.
         In any event, a ruling of this court would not provide exoneration. That is because the violation finding did
not result in revocation of probation and a term of incarceration; the court merely modified the conditions of probation
and continued it, something that the court had the authority to do regardless of whether the court was correct to view
defendant’s conduct as a violation of the terms of probation.
Accordingly, on these facts, it would be difficult to view a correction of any error in the violation finding as resulting in the
type of “exoneration” required to pursue a malpractice claim.1
     1
       Moore-Reed v. Griffin, 

 (unpublished), rev allowed 

 (2024), concerned application of the Stevens “exoneration” rule; the plaintiff in that case petitioned for review, arguing that the Supreme Court should
796                                                        State v. Nieto

         Lastly, defendant argues in the alternative that
this error is capable of repetition yet likely to evade judicial
review and asks us to reach the merits under ORS 14.175.
Even assuming without deciding that the criteria in ORS
14.175 have been met, we decline to exercise the authority
that ORS 14.175 affords us to decide the otherwise moot
issue.
          Appeal dismissed as moot.




consider abandoning that rule. We note that the Supreme Court recently allowed
review in that case.