State v. Preston-Mittasch

319 Or.App. 507

510 P.3d 931

STATE of Oregon, Plaintiff-Respondent,

v.Trent Theophulis PRESTON-MITTASCH IV, Defendant-Appellant.

A173418

Court of Appeals of Oregon.

Submitted October 27, 2021.

May 11, 2022

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.

Defendant appeals from a judgment revoking his probation 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 addressing 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 sentenced defendant to a jail term when it revoked his probation. 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 P.3d 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 , 223 Or. App. 250, 195 P.3d 467 (2008) (dismissing appeal from probation-violation judgment that was mooted by completion of sentence); State v. Dick , 169 Or. App. 649, 10 P.3d 315 (2000) (same). ORS 14.175 allows us to address the merits of a moot action under specified circumstances.¹ When 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 P.3d 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 P.3d 1034 (2021), rev. den. , 369 Or. 504, 506 P.3d 412 (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 repetition in that the statutory framework giving rise to the challenged 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 misdemeanor classes, ranging from 30 days to 364 days); see also Geddry v. Richardson , 296 Or. App. 134, 142, 437 P.3d 1163, rev. den. sub nom. Geddry v. Clarno , 365 Or. 369, 451 P.3d 983 (2019) (similarly concluding that specific challenges to initiative petitions 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 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 considering the issue. See Eastern Oregon Mining Assoc. v. DEQ , 285 Or. App. 821, 830-32, 398 P.3d 449 (2017), aff'd , 365 Or. 313, 445 P.3d 251 (2019), cert. den. , ––– U.S. ––––, 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, 398 P.3d 449 (discussing the "judicial economy" factor). Further, resolution of the issue will affect other defendants who have had their probation revoked. See id. at 831, 398 P.3d 449 ("[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 parties 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 sentencing 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 P.3d 1042 (2009) (outlining the methodology for statutory interpretation and discussing the primacy of text and context). First, ORS 137.540 provides the trial court authority to impose conditions of probation, including a special condition of probation that includes confinement in jail. ORS 137.540 provides, in part:

"(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 reformation 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 restriction, 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 sentencing authority when it revokes probation. ORS 137.545 provides, in part:

"(5)(a) For defendants sentenced for felonies committed prior to November 1, 1989, and for any misdemeanor, the court that imposed the probation, after summary hearing, 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 confinement to jail as a special condition of probation. See State v. Frier , 264 Or. App. 541, 543, 333 P.3d 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...