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State v. Hardges

Court of Appeals of Oregon

October 17, 2018

STATE OF OREGON, Plaintiff-Respondent,
MARQUES SAVILLE HARDGES, aka Marcus Savelle Hardges, aka Marques Savell Hardges, aka Marques Savelle Hardges, aka Marques Savelle Harges, aka Marques Sevell Hargdes, Defendant-Appellant.

          Argued and submitted July 25, 2017

          Multnomah County Circuit Court 14CR21961, 15CR00250; Jerry B. Hodson, Judge.

          David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         [294 Or.App. 446] DEHOOG, P. J.

         Defendant appeals two judgments arising from a single probation revocation proceeding, in which the trial court revoked defendant's probation and imposed a total of 31 months in prison followed by 36 months' post-prison supervision. Defendant's sole assignment of error raises the question of when a court may find that a defendant has violated the general condition of probation requiring that a probationer “[r]eport as required and abide by the direction of the supervising officer.” ORS 137.540(1)(m) (emphasis added). We conclude that a probationer fails to “abide by the direction of the supervising officer” only when the direction at issue directly relates to the reporting requirement imposed by that condition. Because the direction here was unrelated to the reporting requirement, we reverse and remand.

         Defendant was convicted of public indecency, ORS163.465(2)(b), possession of methamphetamine, ORS 475.894, and harassment, ORS 166.065(3). The trial court sentenced defendant to probation and imposed all of the general conditions of probation listed at ORS 137.540(1), as well as certain special conditions not at issue on appeal. Defendant subsequently agreed to an “action plan” prepared by his probation officer. Among other things, the plan stated: “You must stay at the Medford Building each night and follow the curfew there[:] 9:00 pm. Follow all program rules.”[1] Defendant moved into the Medford Building as directed, but soon violated the curfew and other Medford Building rules, including a prohibition regarding the use of controlled substances. As a result, the Medford Building discharged defendant, preventing him from staying there as contemplated by his action plan and leading to the probation violation proceedings at issue in this case.

         In its motion to revoke probation, the state alleged that defendant had violated two of the general conditions of probation by (1) failing to “abide by the direction” of his probation officer, ORS 137.540(1)(m), and (2) using controlled [294 Or.App. 447] substances, ORS 137.540(1)(b). As to the first allegation, the state contended that defendant had failed to abide by the direction of his probation officer by violating the terms of the action plan requiring him to stay at the Medford Building. In response, defendant argued that the condition in ORS 137.540(1)(m), which requires that a probationer “[r]eport as required and abide by the direction of the supervising officer, ” does not authorize probation officers to impose special conditions of probation unrelated to the reporting requirement. Implicitly rejecting that argument, the trial court specifically found defendant “in willful violation of his probation for failure to abide the directives of his P.O., ” found that the state had also proved its other allegation regarding controlled substances, and revoked defendant's probation.

         Defendant appeals, raising the same argument he made to the trial court. Before addressing the merits of that argument, we first consider the state's argument that defendant's appeal is moot. The state argues that, because defendant is currently on post-prison supervision that will expire before the expiration date of his original probation, a decision from this court “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) (internal quotation marks omitted). We understand the state's argument to be that, because there is no meaningful difference between probation and post-prison supervision for defendant, a decision on appeal returning him to probation-and for a term longer than his remaining time on post-prison supervision-would be of no benefit to him. As the Supreme Court recently made clear in K. J. B., however, a party moving for dismissal on mootness grounds carries the burden of establishing that a case is moot. Id. Here, because the state has not provided us with an adequate basis on which to evaluate its mootness argument, the state has not satisfied its burden.

         Specifically, the state has not provided us with a copy of the terms of defendant's post-prison supervision; as a result, we cannot determine whether those terms are more onerous than the conditions of his original probation, nor can we determine whether there are other practical distinctions between his former status as a probationer and his status as a post-prison supervisee. We do note that, while a sentencing [294 Or.App. 448] court retains ongoing control over the conditions and consequences of probation, it loses that control once an individual is placed on post-prison supervision; at that point, it is the Board of Parole and Post-Prison Supervision, and not the trial court, that may, without judicial oversight, modify the conditions of supervision, ORS 144.102(2), and sanction violations, ORS 144.106(4). Defendant therefore has an arguable interest in being returned to probation, even if another person in his position might reasonably choose to accept the shorter term of post-prison supervision. As a result, we conclude that the state has not established that this matter is moot. See State ex rel Juv. Dept. v. Garcia, 180 Or.App. 279, 285-86, 44 P.3d 591 (2002) (appeal from delinquency adjudication not moot, even though youth had been released from correctional facility, because youth was subject to “a condition of parole that would not exist but for the commitment” and had lost his “statutory entitlement to a judicial hearing” before he could be placed in a correctional facility for a future parole violation).

         Turning to the merits, we review the trial court's conclusion that defendant violated ORS 137.540(1)(m) for errors of law. State v. Stroud, 293 Or.App. 314, 318, ___ P.3d ___ (2018) (“Whether there is sufficient evidence in the record to satisfy the state's burden [to prove that defendant violated a condition of probation] is a legal question.”).

         Defendant argues that this case is controlled by our recent decision in State v. Rivera-Waddle, 279 Or.App. 274, 379 P.3d 820 (2016). Like defendant, the defendant in Rivera-Waddle was convicted of a felony and sentenced to a term of probation that included the condition that she “[r]eport as required and abide by the direction of the supervising [probation] officer.” Id. at 275 (bracketed material in original). The defendant also signed an action plan, prepared by her probation officer, in which she agreed to abstain from the use of intoxicants. Id. The state subsequently moved to revoke the defendant's probation on the ground that the defendant had violated multiple conditions of probation; the state's allegations included the defendant's “failure to abstain from the use of intoxicants, * * * failure to abide by the probation officer's ‘direction,' and * * * failure to report to the probation officer at designated times.” Id. The trial [294 Or.App. 449] court revoked the defendant's probation after finding that she had violated the conditions of her probation “in all * * * particulars alleged.” Id. at 276. On appeal, the defendant argued that the trial court had plainly erred in revoking her probation, because, in her view, the “purported condition requiring her to abstain from intoxicants was imposed by the probation officer and probation [could not] be revoked based on a violation of a condition that the court itself did not impose.” Id. at 277.

         We agreed that the trial court had plainly erred in revoking the defendant's probation. We concluded that the condition requiring the defendant to abstain from the use of intoxicants was “invalid, ” because it was not a condition imposed by the sentencing court; rather, it was a condition that her probation officer had purported to impose after sentencing “pursuant to a catch-all provision that she ‘[r]eport as required and abide by the direction of the supervising officer,' ” i.e., ORS 137.540(1)(m). Id. at 279. Relying on earlier cases recognizing that a probation officer's authority is derivative of-and not in addition to-the sentencing court's, we held that the defendant could not be found in violation of a condition that the sentencing court had not imposed. Id. at 278-79. Moreover, the trial court's error in considering that condition was not harmless, because we could “not tell from the court's ruling whether it would have revoked defendant's probation if it had considered only those allegations that ...

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