Submitted October 4, 2019
Umatilla County Circuit Court CR150957, 17CR29851, 17CR55203;
Eva J. Temple, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sara F. Werboff, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Rolf C. Moan, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi,
Summary: In each of three cases consolidated for appeal,
defendant was convicted of driving while suspended and
sentenced to 90 days in jail. He appeals, arguing that the
trial court erred by ruling that it could not consider
information about the immigration consequences of the number
of days of confinement imposed as part of his sentence.
Held: The trial court erred by concluding that it
could not consider the immigration consequences as part of
its discretionary sentencing decision.
Or.App. 329] ARMSTRONG, P. J.
these cases, consolidated for appeal, defendant challenges
the sentences imposed in three judgments, all relating to
separate convictions for criminal driving while suspended.
ORS 811.182. Defendant contends that in all three cases the
trial court erred by concluding that it could not consider
certain immigration consequences as a mitigating factor when
it imposed defendant's sentences. In Case No. CR150957,
we affirm, and in Case Nos. 17CR29851 and 17CR55203, we
remand for resentencing.
No. CR150957, defendant had previously been convicted for
driving while suspended. The court had previously imposed a
sentence of 180 days' jail, the execution of which was
suspended, and defendant was placed on probation. While he
was on probation, he was charged with two new counts of
criminal driving while suspended, in Case Nos. 17CR29851 and
17CR55203. Defendant pleaded guilty to the new charges, and,
in Case No. CR150957, his probation was revoked.
sentencing hearing for all three cases, defendant argued
that, in considering the imposition of jail time as part of
defendant's sentences, the court should take into account
the immigration consequences to defendant. Defendant had
legal status as a permanent resident alien- commonly referred
to as having a "green card." Defendant explained
that, due to his "numerous prior convictions," he
was "dangerously close" to having been sentenced to
a total of five years' jail time. Defendant reported
that, if he reached a total of five years' jail time, he
would be "rendered inadmissible," meaning that he
might not be readmitted to the United States if he were to
travel abroad. See 8 USC § 1182(a)(2)(B)
(providing in part that "[a]ny alien convicted of 2 or
more offenses * * * for which the aggregate sentences to
confinement were 5 years or more is inadmissible").
Defense counsel had calculated that defendant appeared to
have 1, 750 days' jail time imposed, and because five
years' jail time amounts to 1, 825 days, defendant was
left with "about 75 days" before he would be
rendered inadmissible. Defendant asked, with respect to the
jail terms of his sentences, that the court impose no jail in
the probation [301 Or.App. 330] revocation case, and that it
impose suspended jail terms of 24 days each in Case Nos.
17CR29851 and 17CR55203, in light of the immigration
state objected to the court considering the immigration
information, and the court concluded that it was not allowed
to consider it. In Case No. CR150957, the court revoked and
terminated defendant's probation as unsuccessful, and
sentenced him to 90 days' jail based on the previously
suspended 180-day sentence. In Case No. 17CR29851, defendant
was sentenced to 180 days' jail time, with 90 days of
that suspended. He received an identical jail sentence in
Case No. 17CR55203. The jail sentences were all to run
assigns error to the trial court's ruling that it could
not consider the information defendant presented regarding
immigration consequences. Defendant also argues in his
opening brief that, in this challenge relating to the length
of his sentences, his appeal did not become moot after he had
served the 90-day sentences, because his appeal concerns a
collateral consequence that was triggered by the length of
the sentences imposed, and which is not abated by his having
fully served the sentences. The state concedes that the court
erred in concluding that it could not consider the
immigration consequences as part of its discretionary
sentencing decision, and it agrees that defendant's
completion of the 90-day sentences did not render his appeal
moot. We agree on both points, and accept the state's
concession. See State v. Rice, 114 Or.App. 101, 105,
836 P.2d 731');">836 P.2d 731, [301 Or.App. 331] rev den, 314 Or. 574
(1992) ("For most misdemeanors, the sentence is entirely
a matter of trial court discretion."); ORS 137.010;
State v. Hauskins, 251 Or.App. 34, 36, 281 P.3d 669
(2012) (explaining that, even when the primary matter at
issue has been resolved, in some circumstances collateral
consequences may prevent mootness). We therefore remand for
resentencing in Case Nos. 17CR29851 and 17CR55203.
No. CR150957, affirmed. In Case Nos. 17CR29851 and 17CR55203,