State v. Lomack

596

Submitted June 29, appeal dismissed as moot November 18, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANDRE J. LOMACK,

aka Andre Kelly Lomack,

Defendant-Appellant.

Multnomah County Circuit Court

16CR30449, 17CR71934;

A170551 (Control), A169998

477 P3d 1222

Defendant appeals a judgment adding a new probation condition to his pro-

bationary sentence for felon in possession of a firearm. The challenged condition

prohibited him from having any contact with his girlfriend. During the pen-

dency of this appeal, defendant was found to have violated that condition, and,

as a result, his probation was revoked. Defendant did not appeal the probation-

revocation judgment. The state contends that the present appeal is moot, while

defendant contends that it is not moot due to collateral consequences. Held: The

appeal is moot. Because defendant did not appeal the probation-revocation judg-

ment, prevailing in the present appeal would not avoid the direct consequences of

the challenged judgment. Further, the three collateral consequences that defen-

dant identifies are too speculative to make the appeal not moot.

Appeal dismissed as moot.

Shelley D. Russell, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stacy M. Du Clos, Deputy Public Defender,

Office of Public Defense Services, filed the briefs for

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Shannon T. Reel, Assistant Attorney

General, filed the briefs for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

AOYAGI, J.

Appeal dismissed as moot.

Cite as 307 Or App 596 (2020) 597

AOYAGI, J.

Defendant appeals a judgment adding a new pro-

bation condition to his probationary sentence for felon in

possession of a firearm (FIP). The contested condition pro-

hibits him from any contact with his girlfriend, L. The same

condition was imposed in a separate criminal case in which

defendant was convicted of assaulting L, but, after defen-

dant’s probation was revoked in the assault case, the trial

court added the no-contact condition to defendant’s proba-

tion in the FIP case. Defendant contends that the trial court

erred in doing so, because the FIP conviction has nothing to

do with L.

During the pendency of this appeal, defendant was

found to have violated the challenged condition by contact-

ing L, and, as a result, his probation was revoked in the

FIP case. Defendant did not appeal the probation-revocation

judgment. For the following reasons, we conclude that this

appeal is moot and, accordingly, dismiss it.

FACTS

This is a consolidated criminal appeal, involving two

cases.

In Case No. 16CR30449, defendant was indicted for

felon in possession of a firearm, based on his having a fire-

arm in his possession or control on May 22, 2016. The fire-

arm was found in defendant’s vehicle during a traffic stop.

Defendant pleaded guilty in June 2016 and was convicted

and sentenced to three years of probation. His original pro-

bation conditions are not at issue.

Over a year later, in Case No. 17CR71934, defen-

dant was convicted of misdemeanor fourth-degree assault

constituting domestic violence, based on his assaulting L on

October 28, 2017. He was sentenced to two years of proba-

tion. One of his probation conditions was that he have no

contact with L.

On January 9, 2019, defendant was found in viola-

tion of his probation in both cases—for failure to report in

Case No. 16CR30449, and for failure to report and violation of

the no-contact condition in Case No. 17CR71934. Defendant

598 State v. Lomack

was sanctioned but kept on probation with extended terms.

The court emphasized that defendant was prohibited from

contacting L, and defendant assured the court that it would

not be an issue again.

Defendant resumed contacting L within minutes

after the January 9 hearing. As a result, later the same

month, the trial court entered two judgments. The first

revoked defendant’s probation in the assault case and sent

him to jail on the assault conviction. The second added a

condition to defendant’s probation in the FIP case that pro-

hibited him from contacting L. Regarding the latter, defen-

dant objected to the condition as improper, arguing that the

FIP conviction had nothing to do with L, but the court said

that it could “see them being linked” in that it would be dan-

gerous to L for defendant to possess a weapon. Defendant

appealed both judgments, which is the present appeal. He

raises a single assignment of error, challenging the imposi-

tion of the no-contact probation condition in the FIP case.

On November 13, 2019, during the pendency of this

appeal, defendant’s probation was revoked in the FIP case,

based on his contacting L and thus violating the no-contact

condition. Defendant stipulated to the violation and did

not appeal the probation-revocation judgment. Upon learn-

ing of that intervening event, we requested supplemental

briefing on the issue of mootness, which both parties pro-

vided. The state contends that the appeal is now moot, while

defendant contends that it is not moot due to collateral

consequences.

ANALYSIS

A case becomes moot “when a court’s decision 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); see

also Garges v. Premo, 362 Or 797, 801, 421 P3d 345 (2018)

(“Mootness results when a change in circumstance or some

intervening event has eliminated the possibility that the

requested relief can be provided.”). Here, because the trial

court has revoked defendant’s probation on his FIP convic-

tion, and because defendant did not appeal the revocation

judgment, defendant’s challenge to a condition of his FIP

Cite as 307 Or App 596 (2020) 599

probation appears on its face to be moot. That is, even if we

were to agree with defendant that the no-contact condition

should not have been imposed in the FIP case, defendant

is no longer on probation, so the probation condition no lon-

ger applies. Moreover, because defendant did not appeal the

revocation judgment, he cannot obtain any relief from the

direct consequence of the imposition of that probation condi-

tion: the revocation of his probation for violating it.1

But direct consequences of a judgment are not the

only consequences relevant to mootness. Collateral conse-

quences are also relevant. “Even if the main issue in con-

troversy has been resolved, collateral consequences may

prevent the controversy from being moot under some cir-

cumstances.” Barnes v. Thompson, 159 Or App 383, 386,

977 P2d 431, rev den, 329 Or 447 (1999); see also K. J. B.,

362 Or at 785 (practical effects of a court’s decision include

both direct and collateral consequences). To avoid moot-

ness, a collateral consequence must be probable, not merely

possible—“a speculative consequence does not prevent a

case from being moot.” State v. Hauskins, 251 Or App 34, 36,

281 P3d 669 (2012).

When the issue of mootness arises on appeal, gener-

ally, the appellant must identify any practical consequences

that he or she believes that our decision would have, and

then the respondent may seek to establish that the iden-

tified collateral consequences “either do not exist or are

legally insufficient.” K. J. B., 362 Or at 786. It is then for us

to “determine the existence and significance of [the iden-

tified] effects or consequences and to decide, as a pruden-

tial matter, whether [the] appeal is moot.” Dept. of Human

Services v. A. B., 362 Or 412, 426, 412 P3d 1169 (2018).

In this case, defendant has identified three practi-

cal consequences that he believes a decision on the merits in

this appeal would have. We address each in turn, explaining

why, ultimately, we agree with the state that the appeal is

moot.

1

Neither party has identified, nor are we are aware of, any authority by

which reversal of a judgment imposing a probation condition would result in

reversal of a subsequent judgment revoking probation for violation of that condi-

tion, absent both judgments having been appealed.

600 State v. Lomack

Defendant first contends that, if he prevails in this

appeal and thus establishes that the trial court should not

have required him to have no contact with L as a condi-

tion of his FIP probation, then, even though that would not

result in direct relief from the FIP probation-revocation

judgment, defendant “could possibly obtain relief from the

[revocation] judgment through a post-conviction claim for

inadequate assistance of counsel,” which could lead to his

release from prison and return to probation. The difficulty

with that argument lies in the standard for post-conviction

relief. Whether counsel’s performance fell below the consti-

tutional standard must be determined from the perspective

of counsel at the time that counsel acted or failed to act, not

in hindsight. Jackson v. Franke, 364 Or 312, 327 n 9, 434

P3d 350 (2019).

If defendant decides to pursue post-conviction

relief, the post-conviction court will have to determine

whether his counsel’s performance fell below the constitu-

tional standard—with respect to defendant stipulating to

the probation violation and not appealing the revocation

judgment—and, if so, whether defendant was prejudiced as

a result. Knowing how this court would rule on the mer-

its of this appeal might be useful to the hypothetical post-

conviction court, in that it would supply one piece of the

prejudice analysis (which, unlike the performance prong,

may be informed by later events), but the post-conviction

court having to assess for itself the merits of defendant’s

dismissed appeal is not an adverse consequence to defen-

dant for mootness purposes. Although a lesser consider-

ation, we also note that, as a practical matter, given that

defendant must be nearing completion of his 14-month

prison sentence on the FIP conviction, and given that

defendant has not yet filed any petition for post-conviction

relief, it is virtually impossible that defendant could obtain

post-conviction relief before completing his prison sentence.

That reality makes it all the more speculative that a merits

decision in defendant’s favor in this case would have any

practical effect on whether he obtains post-conviction relief.

The second collateral consequence claimed by defen-

dant relates to the potential terms of post-prison supervision

(PPS) that the Board of Parole and Post-Prison Supervision

Cite as 307 Or App 596 (2020) 601

may impose on him when he is released from prison. Under

ORS 144.102(4)(a), the board may impose PPS terms that

it considers necessary to promote public safety or to assist

in defendant’s reformation, given his individual circum-

stances. Penn v. Board of Parole, 365 Or 607, 635, 451 P3d

589 (2019). Defendant contends that the board is more likely

to impose a PPS term prohibiting him from contact with L

if we issue a decision that the no-contact probation condition

was lawful than if we issue a decision that the no-contact

probation condition was unlawful. But, in dismissing this

appeal as moot, we are not deciding that the no-contact pro-

bation term was lawful—we are expressing no opinion on

that issue. In any event, PPS terms are independent of pro-

bation conditions, and we doubt that our resolving this case

on the merits would have any practical effect on what PPS

terms the board chooses to impose.

Finally, the third collateral consequence claimed by

defendant is that he may be liable for PPS fees when he is

released from prison and placed on PPS. Defendant argues

that “[a]n appeal from a probation revocation is not moot

when the defendant is subject to PPS fees to which he would

not have been subject had the court not revoked probation.”

This is not an appeal from a probation revocation, however,

and defendant does not explain how the outcome of this

appeal practically affects the imposition of PPS fees. To the

extent that defendant’s argument implicitly hinges on his

successfully obtaining post-conviction relief as to the FIP

probation-revocation judgment, we refer back to our discus-

sion of the first claimed collateral consequence.

In sum, by not appealing the probation-revocation

judgment, defendant has lost the ability to continue chal-

lenging the lawfulness of the former probation condition

itself, because there would be no direct benefit to defendant

in our deciding this appeal in his favor, and because the

collateral benefits identified by defendant are too specula-

tive. We therefore conclude that, as a prudential matter, the

appeal is moot.

Appeal dismissed as moot.