Gutierrez v. Board of Parole ( 2022 )

525
On petitioner’s petition for reconsideration filed March 1, and respondent’s
response filed March 14; reconsideration allowed, former opinion (317 Or App
552, 506 P3d 1129) modified and adhered to as modified May 11; petition for
review denied July 28, 2022 (370 Or 197)
ANTONIO ALEJANDRO GUTIERREZ,
Petitioner,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A168255
509 P3d 194
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, for response.
Before Tookey, Presiding Judge, and Egan, Judge, and
Aoyagi, Judge.
PER CURIAM
Reconsideration allowed; former opinion modified and
adhered to as modified.
526 Gutierrez v. Board of Parole
PER CURIAM
Petitioner seeks reconsideration of our opinion
in Gutierrez v. Board of Parole, 317 Or App 552, 506 P3d
1129 (2022), in which we concluded that the case was moot
and, as a part of that decision, allowed costs to the Board
of Parole and Post-Prison Supervision (board) as the des-
ignated prevailing party. See ORAP 13.05(3) (stating that
the respondent is the prevailing party, unless we reverse
or substantially modify the judgment or order from which
the appeal or judicial review was taken). Pursuant to ORAP
6.25(1)(c), petitioner requests that we modify the opinion to
eliminate the cost award to the board.1
In DeYoung v. Board of Parole, 332 Or 266, 27 P3d
266 (2001), the Supreme Court stated that “appellate courts
may decline to award costs to the prevailing party in cases
of dismissal, for reasons of fairness or otherwise.” See also
ORS 20.310(1) (“In any appeal to the Court of Appeals * * *
the court shall allow costs and disbursements to the pre-
vailing party, * * * unless the court directs otherwise.”).
The board, as the prevailing party, concedes that we should
decline to award costs here for two reasons—first, because
we dismissed petitioner’s case as moot and did not address
the merits, and second, because of petitioner’s indigent sta-
tus and limited resources. We accept the board’s concession
and modify the disposition to delete the award of costs.
Reconsideration allowed; former disposition modi-
fied and adhered to as modified.
1
Petitioner also argues that, if we award costs to the board, we should also
reconsider whether petitioner’s case is moot, because an award of costs “may have
a practical effect on the rights of the parties.” Given our resolution, we need not
address that argument.