Dunn v. Board of Parole ( 2021 )

249
Argued and submitted January 30, 2020, petition for review dismissed as moot
March 31, 2021
DOUGLAS WAYNE DUNN,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A169830
487 P3d 410
Petitioner, who was serving a period of post-prison supervision after
incarceration for convictions dating from 2002, violated the conditions of his
post-prison supervision by committing new crimes. The Board of Parole and
Post-Prison Supervision imposed a sanction of 120 days’ jail time, revoking peti-
tioner’s post-prison supervision for that same period. The sanction and revoca-
tion had the effect of delaying petitioner’s completion of his remaining super-
vision period. Petitioner, who waived his right to a formal evidentiary hearing
before the board, seeks judicial review of the board’s order, contending that his
waiver was not knowing and voluntary. Held: On the board’s motion, the Court of
Appeals dismissed the petition as moot. Petitioner has since served the 120-day
jail sanction and has since been convicted of the offenses underlying the sanc-
tion. Additionally, petitioner has been sentenced on those convictions to a term
of 120 months in prison and 36 months’ post-prison supervision. The period of
post-prison supervision remaining on petitioner’s prior convictions will be served
concurrently with the period of post-prison supervision on petitioner’s new con-
victions. The court rejected petitioner’s contention that adverse collateral con-
sequences from the outstanding finding of a violation and sanction prevent his
challenge from becoming moot. Thus, reversal of the sanction would be of no
practical benefit to petitioner; hence, the petition for review is moot.
Petition for review dismissed as moot.
Kyle Krohn, Deputy Public Defender, argued the cause
for petitioner. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Christopher Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
250 Dunn v. Board of Parole
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Petition for review dismissed as moot.
Cite as 310 Or App 249 (2021) 251
ARMSTRONG, P. J.
Petitioner, who was serving a period of post-prison
supervision after incarceration for convictions dating from
2002, violated the conditions of his post-prison supervision
by committing new crimes. The Board of Parole and Post-
Prison Supervision imposed a sanction of 120 days’ jail time,
revoking petitioner’s post-prison supervision for that same
period. The sanction and revocation had the effect of delay-
ing petitioner’s completion of his remaining supervision
period. Petitioner, who waived his right to a formal eviden-
tiary hearing before the board, seeks judicial review of the
board’s order, contending that his waiver was not knowing
and voluntary. He further contends that the board’s findings
on the merits of the violations are not supported by substan-
tial evidence.
The board has filed a motion to dismiss the peti-
tion, contending that it is moot, because petitioner has since
served the 120-day jail sanction and has since been con-
victed of the offenses underlying the sanction—possession
of methamphetamine, first-degree robbery, second-degree
robbery, fourth-degree assault, unlawful use of a weapon,
first-degree theft, and menacing. Additionally, petitioner
has been sentenced on those convictions to a term of 120
months in prison and 36 months’ post-prison supervision.
The period of post-prison supervision remaining on petition-
er’s prior convictions will be served concurrently with the
period of post-prison supervision on petitioner’s new convic-
tions. Thus, the board contends, a reversal of the sanction
would be of no practical benefit to petitioner; hence, the peti-
tion for review is moot.
Petitioner responds that there are adverse collateral
consequences from the outstanding finding of a violation and
sanction that prevent his challenge from becoming moot.
He notes that his new convictions are pending on appeal
and that, in the event they are overturned, the board’s revo-
cation of post-prison supervision on his former convictions
would have the effect of extending his time under supervi-
sion. Petitioner contends, additionally, that the board’s order
could adversely affect him, because it could be considered in
the impositions of sanctions for future violations. See OAR
252 Dunn v. Board of Parole
255-075-0073(8)(c) (permitting consideration of the history
and nature of violations of post-prison supervision).
We agree with the board that the petition for judi-
cial review is moot. When a sentence or condition of supervi-
sion has expired, a challenge to the sentence or supervision
condition becomes moot, because there is no effective relief
that may be granted against the expired sentence or con-
dition. See, e.g., State v. Dick, 169 Or App 649, 650, 10 P3d
315 (2000) (dismissing as moot challenge to order revoking
defendant’s probation because defendant had “already com-
pleted his sentence”). Petitioner has completed his 120-day
sanction; thus, our case law guides us to conclude that his
challenge to the sanction is moot.
Collateral consequences can sometimes prevent a
controversy from being moot. Barnes v. Thompson, 159 Or
App 383, 386, 977 P2d 431, rev den, 329 Or 447, (1999). A
collateral consequence “is a probable adverse consequence to
the defendant as a result of the challenged action.” State v.
Hauskins, 251 Or App 34, 36, 281 P3d 669 (2012). Petitioner
contends that an adverse consequence of the sanction is the
extension of his post-prison supervision time on the under-
lying offenses.
Petitioner is currently serving a prison term on his
new convictions, which will be followed by 36 months of post-
prison supervision, with which the remaining post-prison
supervision period on his earlier offenses will be served con-
currently. OAR 213-012-0040 (requiring that multiple PPS
terms be served concurrently). Petitioner will thus serve the
same amount of supervision time post-prison whether or not
the sanction is overturned. The extended post-prison super-
vision time as a result of the sanction therefore will have no
practical effect on petitioner’s rights, thus not saving peti-
tioner’s challenge from mootness. See Brumnett v. PSRB,
315 Or 402, 405-06, 848 P2d 1194 (1993) (“Cases that are
otherwise justiciable, but in which a court’s decision no lon-
ger will have a practical effect on or concerning the rights of
the parties, will be dismissed as moot.”)
Petitioner cites the remaining post-prison supervi-
sion time as a potential collateral consequence if his new con-
victions are overturned on appeal. That contention requires
Cite as 310 Or App 249 (2021) 253
us to speculate that petitioner will succeed on his appeal
in obtaining a reversal of at least some of his convictions,
resulting in a remand for a new trial or resentencing, such
that a future sentence will no longer include post-prison
supervision time of a duration sufficient to subsume the
remaining post-prison supervision time on petitioner’s ear-
lier convictions. That is too remote a possibility to preclude
mootness. See Brumnett, 315 Or at 407 (“The mere possibil-
ity that the state might seek * * * an order at some future
date is not sufficient to make dismissal [for mootness] inap-
propriate.”); Dept. of Human Services v. S. M. S., 281 Or App
720, 722, 383 P3d 991 (2016) (“To preclude mootness, the
asserted consequence ‘must have a significant probability of
actually occurring; a speculative or merely possible effect is
not enough.’ ” (Quoting Oregon School Activities v. Board of
Education, 244 Or App 506, 510, 260 P3d 735 (2011).)).
In State v. Stroud, 293 Or App 314, 318, 428 P3d
949 (2018), we held that the legal detriment of a finding of a
probation violation with respect to possible future probation
sanctions was a collateral consequence that prevented an
appeal from becoming moot. Citing Stroud, petitioner con-
tends that here, similarly, the board’s determination that
petitioner has violated the terms of his post-prison supervi-
sion is an adverse legal consequence with respect to possible
future sanctions for possible future violations of post-prison
supervision. We agree with petitioner that it is possible that
the current sanction could adversely affect future sanctions
if petitioner were ever to violate the terms of post-prison
supervision on his new convictions. But, unlike in Stroud,
where the adverse legal consequence related to possible
future sanctions for violations of the probation the petitioner
was then serving, here, the possible adverse effect relates
to possible sanctions for future violations of post-prison
supervision that petitioner will serve after he completes a
prison term of 120 months on his new convictions. Not only
is that possible adverse consequence speculative, it is one
that would bear minimal significance relative to the seri-
ous nature of the crimes that gave rise to the sanction. We
agree with the state that, as a collateral consequence, it is
one that is of such remote likelihood and minimal effect that
it is legally insufficient to prevent the appeal from being
254 Dunn v. Board of Parole
moot. See State v. K. J. B., 362 Or 777, 786, 416 P3d 291
(2018) (“[W]hen the moving party takes the position that a
case has become moot, the responding party must identify
any collateral consequences that * * * she contends has the
effect of producing the required practical effects of a judicial
decision. At that point, the moving party must demonstrate
that any of those identified collateral consequences either
does not exist or is legally insufficient.”). We reject without
discussion petitioner’s contention that his challenge to the
sanction is one that we should consider under ORS 14.175,
as capable of repetition yet evading review.
Petition for review dismissed as moot.