State v. Hauskins

281 P.3d 669, 251 Or. App. 34, 2012 WL 2583367, 2012 Ore. App. LEXIS 853
CourtCourt of Appeals of Oregon
DecidedJuly 5, 2012
Docket096364; A144002
StatusPublished
Cited by25 cases

This text of 281 P.3d 669 (State v. Hauskins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hauskins, 281 P.3d 669, 251 Or. App. 34, 2012 WL 2583367, 2012 Ore. App. LEXIS 853 (Or. Ct. App. 2012).

Opinion

SCHUMAN, P. J.

While on probation for possession of controlled substances, defendant produced a urine sample that tested positive for drugs. When his probation officer told him the test results, defendant stated, “Yes. I used.” On the basis of that confession, the court found defendant in contempt of court under ORS 33.0651 and ORS 33.105(2)2 for violating a condition of his probation, and it imposed a punitive contempt sanction of 180 days in jail.3 On appeal, defendant argues that the trial court erred in denying his motion for judgment of acquittal; in particular, he maintains that his confession was not corroborated (the urinalysis was not offered into evidence) and, under ORS 136.425, “a confession only [is not] sufficient to warrant the conviction without [36]*36some other proof that the crime has been committed.” We reverse.

As a preliminary matter, the state moved to dismiss the appeal, asserting that it is moot because defendant has served his contempt sanction and has been released from custody. The Appellate Commissioner denied the motion but gave the state leave to renew the argument in its merits brief. The state has done so, and we begin by addressing that argument.

In Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993), the Supreme Court stated that “[determining mootness is one part of the broader question of whether a justiciable controversy exists.” In order for a matter to present a justiciable controversy, a decision in the matter has to “have some practical effect on the rights of the parties to the controversy.” Id.-, see also Corey v. DLCD, 344 Or 457, 464, 184 P3d 1109 (2008) (“If it becomes clear in the course of a judicial proceeding that resolving the merits of a claim will have no practical effect on the rights of the parties, this court will dismiss the claim as moot.” (Citing Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004).)) “Even if the main issue in a controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances.” Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den, 329 Or 447 (1999) (emphasis in original). A collateral consequence for purposes of mootness is a probable adverse consequence to the defendant as a result of the challenged action. See Rondeau v. Board of Parole, 232 Or App 488, 491, 222 P3d 753 (2009); see also State v. Gibbens, 25 Or App 185, 187-88, 548 P2d 523 (1976). However, the record must show more than a “mere possibility” that collateral consequences will occur; a speculative consequence does not prevent a case from being moot. Brumnett, 315 Or at 407. It is the defendant’s burden to show a collateral consequence, and we will not assume one. State ex rel State of Oregon v. Hawash, 230 Or App 427, 428, 215 P3d 124 (2009) (dismissing appeal of contempt judgment as moot when defendant failed to identify collateral consequences).

In the state’s view, defendant has not made a showing of collateral consequences. The state points out that, [37]*37although the judgment in this case refers to the determination of contempt as an “unclassified misdemeanor,” the contempt sanction is not a crime and can have no future impact on a sentence that might be imposed for future criminal conduct; in any event, a potential collateral consequence on a defendant’s “prior violation” history is purely speculative and will not, by itself, preclude mootness. State v. Smith (A134313), 223 Or App 250, 252, 195 P3d 467 (2008). Further, although the contempt judgment orders defendant to “pay any required per diem fees” associated with his incarceration, there is no indication in the record on appeal that defendant has actually been assessed fees or has paid, or owes, any. See Brumnett, 315 Or at 407 (mere possibility that the state might seek an order requiring payment of fees is not sufficient to preserve a live controversy).

Defendant’s primary assertion, however, is that the stigma associated with the contempt judgment is a collateral consequence, and that a reversal of the judgment of contempt would eliminate that stigma. He compares the stigma associated with a punitive contempt to the stigma associated with a conviction for a crime or a mental commitment, neither of which becomes moot because the resulting confinement has been served. Gibbens, 25 Or App at 187-88 (crime); State v. E. A. L., 179 Or App 553, 556, 41 P3d 440 (2002) (mental commitment). The state counters that any possible stigma associated with defendant’s contempt sanction is of no consequence, in light of defendant’s uncontested probation violation on which the contempt is based.

In two recent cases, State v. Phillips, 234 Or App 676, 683 n 2, 229 P3d 631, adh’d, to on recons, 236 Or App 461, 240 P3d 1099, rev den, 349 Or 370 (2010), and Hawash, we reached apparently conflicting conclusions on the question whether a defendant’s completion of a punitive contempt sanction rendered an appeal moot. In Phillips, the defendant was summarily convicted of two counts of contempt for using profanity in the presence of the trial court, ORS 33.096, and was sentenced to confinement in the county jail for 60 days as a punitive sanction. The defendant asserted on appeal that the second count of contempt was not supported by the record. Because the defendant had completed his sanction, [38]*38the state filed a notice of probable mootness. ORAP 8.45. The Appellate Commissioner determined that the case was not moot, and neither party sought reconsideration of that order. Without amplification, we agreed with the Appellate Commissioner’s conclusion, 234 Or App at 683 n 2, citing two cases, State v. Meyer, 31 Or App 775, 777 n 1, 571 P2d 550 (1977), and Hawash. Meyer held without discussion that a defendant’s appeal of a punitive contempt order for which the sanction of confinement had been served was not moot, because the “conviction” had collateral consequences.4 As authority for that holding, Meyer, in turn, cited two cases holding that collateral consequences prevent an appeal of a criminal conviction from becoming moot, even though the defendant had served the sentence at the time of appeal. 31 Or App at 777 n 1 (citing Sibron v. New York, 392 US 40, 50-58, 88 S Ct 1889, 20 L Ed 2d 917 (1968)); State v. Meyer, 12 Or App 486, 492-93, 507 P2d 824 (1973). Our implicit conclusion in Meyer, 31 Or App at 777 n 1, which we implicitly accepted in Phillips, was that a punitive contempt sanction of confinement has collateral consequences analogous to those of a criminal conviction.

In contrast to Phillips, in Hawash,

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Bluebook (online)
281 P.3d 669, 251 Or. App. 34, 2012 WL 2583367, 2012 Ore. App. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hauskins-orctapp-2012.