State v. D. F. P. C. ( 2024 )

No. 802 November 6, 2024 105
This is a nonprecedential memorandum opinion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
In the Matter of D. F. P. C.,
a Youth.
STATE OF OREGON,
Respondent,
v.
D. F. P. C.,
Appellant.
Union County Circuit Court
22JU02419; A181502
Thomas B. Powers, Judge.
Submitted May 13, 2024.
Ryan T. O’Connor and Equal Justice Law filed the briefs
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge and Egan, Judge.
LAGESEN, C. J.
Affirmed.
106 State v. D. F. P. C.
LAGESEN, C. J.
Youth appeals a juvenile court delinquency judgment
finding him within the court’s jurisdiction based on conduct
that, if committed by an adult, would constitute second-
degree criminal mischief, ORS 164.354, unlawful entry
into a motor vehicle, ORS 164.272, possession of burglar’s
tools, ORS 164.235, and second-degree criminal trespass,
ORS 164.245. At disposition, the state noted that youth had
turned 18 during the pendency of the case, and the juvenile
court placed youth in jail for 10 days. His appointed coun-
sel filed a brief pursuant to ORAP 5.90 and State v. Balfour,
311 Or 434, 814 P2d 1069 (1991). Under ORS 419C.453(2), an
adjudicated youth who turns 18 cannot be placed in jail for
longer than eight days. We therefore requested supplemental
briefing to address whether the juvenile court plainly erred
when it placed youth in jail for 10 days. Although the issue is
moot, we review it under ORS 14.175. We conclude that the
trial court plainly erred. Nevertheless, we decline to exercise
our discretion to correct the error because youth, through his
attorney, invited it. We therefore affirm.1
We begin with the state’s argument that the case is
moot. “A case becomes moot when a court’s decision will no
longer have a practical effect on the rights of the parties.”
State v. B. Y., 371 Or 364, 370, 537 P3d 517 (2023) (inter-
nal quotation marks omitted). Here, youth acknowledges
that he has completed the jail placement and the juvenile
court did not impose probation. “A moot issue may, how-
ever, be reviewed when it satisfies the requirements of ORS
14.175 and the court exercises its discretion to consider the
moot issue.” State v. J. R., 318 Or App 21, 27, 507 P3d 778
(2022). There are three requirements under ORS 14.175: (1)
the party had standing to commence the action; (2) the act
challenged by the party is “capable of repetition”; and (3)
the challenged act is “likely to evade judicial review.” ORS
14.175. “When those three requirements are met, the legis-
lature has expressly stated that we may exercise discretion
to review the case.” B. Y., 371 Or at 371.
1
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Yother, 310 Or App 563, 484 P3d 1098 (2021) (deciding
matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 254 Or App 402, 295 P3d 115 (2012), rev den, 353 Or 747 (2013) (same).
Nonprecedential Memo Op: 336 Or App 105 (2024) 107
Here, those requirements are satisfied. Certainly,
youth had standing to challenge his placement in jail for 10
days, that disposition is capable of repetition in other juvenile
delinquency cases, and, given that youth’s placement in jail
was for a relatively short period of time, the issue is likely
to evade judicial review in the future. We further conclude
that we should exercise our discretion under ORS 14.175 to
address the moot issue. ORS 419C.453 articulates specific
requirements for placing an adjudicated youth in a detention
facility or a jail. The issue is an important one to address to
ensure that there is no repetition of unlawful use of deten-
tion for juveniles. See, e.g., State v. B. H. C., 288 Or App 120,
131-33, 404 P3d 1110 (2017) (noting that the “the propriety
of ever using detention to punish children” was controver-
sial, and concluding that “the legislature has not authorized
detention to punish a youth for a probation violation, except in
the manner specifically provided by statute”); B. Y., 371 Or at
372 (“Clarifying the scope of the juvenile court’s dispositional
authority is important to the public and will have implications
for future cases.”); Benjamin v. O’Donnell, 372 Or 764, 768, ___
P3d ___ (2024) (exercising discretion to address moot issue in
part because it “concerns a matter of importance to the courts,
the state, defendants, and others involved in criminal cases”).
Accordingly, we exercise our discretion to address the issue.
Youth did not object when the juvenile court ordered
him placed in jail for 10 days, so he requests plain-error
review. An error is plain when it is an error of law, the legal
point is obvious and not reasonably in dispute, and the error
is apparent on the record without our having to choose
among competing inferences. State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013). If the trial court plainly erred,
it is a matter of discretion whether we will correct it. State
v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006).
Here, we agree with youth that the juvenile court
committed plain error. ORS 419C.453(2) expressly provides
that a juvenile court’s placement of an adjudicated youth
who is at least 18 years of age in jail “may not exceed eight
days[.]” The legislature “intended to authorize the use of
detention to punish a youth * * * only in the manner pro-
vided for by that statute[.]” State v. D. R. M., 292 Or App 887,
108 State v. D. F. P. C.
888, 426 P3d 250 (2018) (internal quotation marks omitted).
Thus, when the juvenile court ordered youth placed in jail
for 10 days, it committed an error of law that is obvious and
not reasonably in dispute, and the error is apparent on the
face of the record without our having to choose among com-
peting inferences. Vanornum, 354 Or at 629.
However, we do not exercise our discretion to cor-
rect the plain error. Factors relevant to whether an appellate
court properly should exercise its discretion to correct plain
error include the nature of the case, the competing interests
of the parties, the gravity of the error, and the ends of justice
in the particular case. Ailes v. Portland Meadows, Inc., 312
Or 376, 382 n 6, 823 P2d 956 (1991). “As pertinent to sentenc-
ing issues, we also consider whether the defendant encour-
aged the trial court’s imposition of the erroneous sentences,
the possibility that the defendant made a strategic choice
not to object to the sentences, the role of other sentences in
the case, and the interests of the judicial system in avoid-
ing unnecessary repetitive sentencing proceedings.” State v.
Camacho-Alvarez, 225 Or App 215, 217, 200 P3d 613 (2009)
(citing State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007)).
In this instance, youth through his counsel encour-
aged or invited the error. At disposition, the state noted that
youth had turned 18 during the pendency of the case and
recommended that the court should impose one year of pro-
bation. Youth’s counsel argued against probation and instead
requested an executed sentence for a short period of time,
noting that he had expected the state to request a 10-day
jail sentence. The state indicated that it did not have “strong
feelings” about whether the court should impose probation
or a 10-day executed sentence, and the state noted that it
sounded like youth was “willing to do” a 10-day sentence.
The court stated that it did not think that juve-
nile probation was appropriate for youth’s circumstances.
Accordingly, it imposed a 10-day executed jail sentence with
credit for time served, as well as restitution. Taking into
account the nature of the case, the interests of the parties and
the judicial system, and because youth encouraged or invited
the error, we decline to exercise our discretion to correct it.
Affirmed.