State v. Preston-Mittasch ( 2022 )

507
Submitted October 27, 2021, affirmed May 11, petition for review denied
September 1, 2022 (370 Or 212)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRENT THEOPHULIS PRESTON-MITTASCH IV,
Defendant-Appellant.
Lane County Circuit Court
17CR53735; A173418
510 P3d 931
Defendant appeals from a judgment revoking his probation on a conviction
for menacing, ORS 163.190, a Class A misdemeanor. On appeal, he argues that
the trial court exceeded its authority under ORS 137.545(5)(a) when it sentenced
him to a 30-day jail term after revoking his probation, because it previously had
imposed a jail term as a special condition of probation. Although his appeal is
moot because he has served his jail sentence, defendant contends that his claim
meets the requirements of ORS 14.175 and urges the court to exercise its discre-
tion to reach his claim. Held: The appeal satisfied the requirements of ORS 14.175
and the Court of Appeals exercised its discretion to reach the merits of defen-
dant’s claim. The trial court did not err when it sentenced defendant to a 30-day
jail term after revoking his probation. Because the trial court initially imposed a
probationary sentence—one in which confinement to jail was a special condition
of that probation—the trial court had the authority under ORS 137.545(5)(a)(B)
to impose a jail sentence after it revoked defendant’s probation.
Affirmed.
Charles M. Zennaché, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joseph Callahan, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Affirmed.
508 State v. Preston-Mittasch
POWERS, J.
Defendant appeals from a judgment revoking his pro-
bation on a conviction for menacing, ORS 163.190, a Class A
misdemeanor. On appeal, defendant argues that the trial
court exceeded its authority under ORS 137.545(5)(a) when
it sentenced him to a 30-day jail term after revoking his
probation because the trial court previously had imposed a
jail term as a special condition of probation. Before address-
ing the merits, however, we must first address justiciability
because defendant completed serving his 30-day sentence,
which renders his appeal moot. Defendant contends that his
claim meets the requirements of ORS 14.175 because the
issue raised on appeal is capable of repetition and likely to
evade review, and that we should exercise our discretion
to reach his claim. The state does not specifically address
whether the issue presented is capable of repetition or likely
to evade review; rather, it argues that we should decline
to exercise our discretion because in its view “any decision
on the merits is not broadly important to many people.” As
explained below, we conclude that this appeal satisfies the
requirements of ORS 14.175, and we exercise our discretion
to reach the merits of defendant’s arguments on appeal. We
further conclude that the trial court did not err when it sen-
tenced defendant to a jail term when it revoked his proba-
tion. Accordingly, we affirm.
We begin with justiciability. 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. State v. K. J. B., 362 Or
777, 785, 416 P3d 291 (2018). It is undisputed that defendant
has served the challenged 30-day jail term, which moots
defendant’s appeal. See, e.g., State v. Smith (A134313), 223
Or App 250, 195 P3d 467 (2008) (dismissing appeal from
probation-violation judgment that was mooted by comple-
tion of sentence); State v. Dick, 169 Or App 649, 10 P3d 315
(2000) (same). ORS 14.175 allows us to address the mer-
its of a moot action under specified circumstances.1 When
1
ORS 14.175 provides:
“In any action in which a party alleges that an act, policy or practice of a
public body, as defined in ORS 174.109, or of any officer, employee or agent of
a public body, as defined in ORS 174.109, is unconstitutional or is otherwise
contrary to law, the party may continue to prosecute the action and the court
Cite as 319 Or App 507 (2022) 509
determining whether to address the merits of a moot appeal,
we must first determine whether the action satisfies the
requirements of ORS 14.175, and, if so, whether to exercise
our discretion to consider it. Penn v. Board of Parole, 365 Or
607, 613, 451 P3d 589 (2019). Under ORS 14.175, we may
decide a moot challenge to an act of a public body or official
if: (1) the party that commenced the action had standing to
commence it; (2) the challenged act is capable of repetition;
and (3) the challenged act is likely to evade judicial review
in the future. Bowers v. Betschart, 313 Or App 294, 301, 496
P3d 1034 (2021), rev den, 369 Or 504 (2022).
We conclude that the requirements of ORS 14.175
are met in this case. Defendant challenges the trial court’s
imposition of a jail sentence under ORS 137.545(5)(a) after
it revoked defendant’s probation, which included a special
probation condition imposing jail as provided by ORS
137.540(2)(a). The first two requirements of ORS 14.175 are
met in that defendant had standing to challenge the trial
court’s action and the trial court’s action is capable of repeti-
tion in that the statutory framework giving rise to the chal-
lenged act, ORS 137.540(2) and ORS 137.545(5)(a), remains
intact. Third, we conclude that future challenges are likely
to evade judicial review because the sentences at issue here
are short, and the judicial process can be lengthy. See ORS
161.615 (providing maximum sentences for different misde-
meanor classes, ranging from 30 days to 364 days); see also
Geddry v. Richardson, 296 Or App 134, 142, 437 P3d 1163,
rev den sub nom Geddry v. Clarno, 365 Or 369 (2019) (sim-
ilarly concluding that specific challenges to initiative peti-
tions are likely to evade judicial review “because election
cycles are short and the judicial process can be lengthy”).
Although not every single instance involving this challenged
act would necessarily evade review, our standard is that a
may issue a judgment on the validity of the challenged act, policy or practice
even though the specific act, policy or practice giving rise to the action no
longer has a practical effect on the party if the court determines that:
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of repetition, or the policy
or practice challenged by the party continues in effect; and
“(3) The challenged policy or practice, or similar acts, are likely to evade
judicial review in the future.”
510 State v. Preston-Mittasch
challenged act be “likely” to evade review, and we conclude
that the challenged act here is likely to evade review.
The question remains whether we should exercise
our discretion to review the moot issue. We conclude that
several prudential considerations weigh in favor of consider-
ing the issue. See Eastern Oregon Mining Assoc. v. DEQ, 285
Or App 821, 830-32, 398 P3d 449 (2017), aff’d, 365 Or 313,
445 P3d 251 (2019), cert den, ___US ___, 141 S Ct 111, 207
L Ed 2d 1052 (2020) (detailing nonexclusive list of “prudential
justifications” that courts consider when deciding whether
to exercise discretion to review moot issues). Resolution of
the issue is in the interest of judicial economy. See id. at
831-32 (discussing the “judicial economy” factor). Further,
resolution of the issue will affect other defendants who have
had their probation revoked. See id. at 831 (“[W]e may also
consider whether the parties are advocating only narrow
arguments and rules of law that may benefit just themselves
or are presenting arguments affecting a wider group of par-
ties or interests.”). Accordingly, we exercise our discretion to
review the issue.
Turning to the merits, at issue is the interplay
between ORS 137.540(2), which allows a trial court to impose
a jail term as a special condition of probation, and ORS
137.545(5)(a), which outlines a trial court’s sentencing options
when it revokes misdemeanor probation. Defendant argues
that the trial court lacked authority under ORS 137.545(5)(a)
to impose a jail sentence because it previously had imposed
a sentence of probation and a sentence of imprisonment as
a condition of probation under ORS 137.540(2). That issue
requires us to decide whether the trial court erred in sen-
tencing defendant to a jail term after revoking his probation
when his initial sentence of probation included a jail term as
a special condition of probation.
We begin with the text of the two statutes. See State
v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (outlining
the methodology for statutory interpretation and discussing
the primacy of text and context). First, ORS 137.540 pro-
vides the trial court authority to impose conditions of proba-
tion, including a special condition of probation that includes
confinement in jail. ORS 137.540 provides, in part:
Cite as 319 Or App 507 (2022) 511
“(2) In addition to the general conditions, the court
may impose any special conditions of probation that are
reasonably related to the crime of conviction or the needs of
the probationer for the protection of the public or reforma-
tion of the probationer, or both, including, but not limited
to, that the probationer shall:
“(a) For crimes committed prior to November 1, 1989,
and misdemeanors committed on or after November 1,
1989, be confined to the county jail or be restricted to the
probationer’s own residence or to the premises thereof, or be
subject to any combination of such confinement and restric-
tion, such confinement or restriction or combination thereof
to be for a period not to exceed one year or one-half of the
maximum period of confinement that could be imposed for
the offense for which the defendant is convicted, whichever
is the lesser.”
Second, ORS 137.545(5)(a) outlines the trial court’s sentenc-
ing authority when it revokes probation. ORS 137.545 pro-
vides, in part:
“(5)(a) For defendants sentenced for felonies commit-
ted prior to November 1, 1989, and for any misdemeanor,
the court that imposed the probation, after summary hear-
ing, may revoke the probation and:
“(A) If the execution of some other part of the sentence
has been suspended, the court shall cause the rest of the
sentence imposed to be executed.
“(B) If no other sentence has been imposed, the court
may impose any other sentence which originally could have
been imposed.”
Thus, as the parties do not dispute, the plain language of
ORS 137.540(2)(a) authorizes the trial court to impose con-
finement to jail as a special condition of probation. See State
v. Frier, 264 Or App 541, 543, 333 P3d 1093 (2014) (explaining
that, under ORS 137.540(2)(a), the court had the authority to
order as a special condition of probation that the defendant
“be confined to the county jail” for up to one year or one-half
the maximum period of confinement that could be imposed
for DUII, whichever was less). Further, under ORS 137.545
(5)(a), the court may revoke probation and either (A) impose
the suspended sentence, or (B), “[i]f no other sentence has
512 State v. Preston-Mittasch
been imposed,” impose any other sentence that originally
could have been imposed.
In this case, the parties agree that there was not a
suspended sentence and, therefore, subparagraph (A) does
not apply. Rather, the parties’ dispute centers on whether
ORS 137.545(5)(a)(B) provided authorization for defendant’s
sentence on revocation. On that point, defendant relies on
Holcomb v. Sunderland, 321 Or 99, 106-07, 894 P2d 457(1995), to argue that, because the court had imposed jail
as a condition of probation, and because probation is a sen-
tence, subparagraph (B) “does not apply because the court
imposed a sentence other than the sentence of probation—
the court also imposed a ‘sentence of imprisonment.’ ” We
reject defendant’s argument.
The plain language of ORS 137.545(5)(a)(B) allows
a trial court to impose “any other sentence” that originally
could have been imposed if no other sentence had been
imposed. Defendant’s argument, however, rests on the
incorrect premise that his initial confinement to jail was a
“sentence” separate from his sentence of probation. In this
case, the trial court imposed jail as a special condition of
probation, i.e., as a part of defendant’s probation, not as a
separate sentence. As we have explained, “[w]hat does, or
does not, constitute a sentence in Oregon is highly context
specific, dependent upon the particular source of law at
issue.” Putnam v. Board of Parole, 290 Or App 436, 442, 417
P3d 524, rev den, 363 Or 224 (2018). Here, jail imposed as
a special condition of probation is a part of the probation-
ary sentence as described in ORS 137.540(2)(a); it is not a
separate sentence. See Frier, 264 Or App at 544 n 3 (“Jail
time ordered as a condition of probation is considered part
of a defendant’s sentence.” (Internal quotation marks omit-
ted.)). Thus, because the trial court initially imposed a pro-
bationary sentence—one in which confinement to jail was a
special condition of that probation—the trial court had the
authority under ORS 137.545(5)(a)(B) to impose a jail sen-
tence after it revoked defendant’s probation.
Affirmed.