State v. Hardges

432 P.3d 268, 294 Or. App. 445
Court of Appeals of Oregon·Decided October 17, 2018·No. A160998 (Control); A160999·Published·Cited by 9 cases

Opinion

DEHOOG, P. J.

*446Defendant 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, ORS 163.465(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 *270rules."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 *447substances, 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.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Hardges, 432 P.3d 268, 294 Or. App. 445 (Or. Ct. App. 2018).

432 P.3d 268 (State v. Hardges) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Linfoot
Court of Appeals of Oregon, 2026
State v. Cunningham
345 Or. App. 546 (Court of Appeals of Oregon, 2025)
State v. Austin
344 Or. App. 368 (Court of Appeals of Oregon, 2025)
State v. Johnson
527 P.3d 811 (Court of Appeals of Oregon, 2023)
State v. Hamilton
518 P.3d 618 (Court of Appeals of Oregon, 2022)
State v. Jackson
511 P.3d 82 (Court of Appeals of Oregon, 2022)
State v. Adams
462 P.3d 761 (Court of Appeals of Oregon, 2020)
State v. Kelemen
437 P.3d 1225 (Court of Appeals of Oregon, 2019)