State v. Hauskins

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Billy Ray HAUSKINS, Defendant–Appellant.
• Citation: 281 P.3d 669,251 Or.App. 34
• Docket Number: 096364,A144002.
• Court: Oregon Court of Appeals
• Decision Date: 05 July 2012

251 Or.App. 34

281 P.3d 669

STATE of Oregon, Plaintiff–Respondent,

v.Billy Ray HAUSKINS, Defendant–Appellant.

096364; A144002.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 2011.

Decided July 5, 2012.

Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Ryan Kahn, Assistant Attorney General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

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 some 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 deniedthe 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 P.2d 1194 (1993), the Supreme Court stated that “[d]etermining 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 P.3d 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 P.3d 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 P.2d 431,rev. den.,329 Or. 447, 994 P.2d 126 (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 P.3d 753 (2009); see also State v. Gibbens, 25 Or.App. 185, 187–88, 548 P.2d 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, 848 P.2d 1194. 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 P.3d 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, although 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, 223 Or.App. 250, 252, 195 P.3d 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, 848 P.2d 1194 (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, 548 P.2d 523 (crime); State v. E.A.L., 179 Or.App. 553, 556, 41 P.3d 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 P.3d 631,adh'd to on recons.,236 Or.App. 461, 240 P.3d 1099,rev. den.,349 Or. 370, 246 P.3d 482 (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, the 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, 229 P.3d 631, citing two cases, State v. Meyer, 31 Or.App. 775, 777 n. 1, 571 P.2d 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, 571 P.2d 550 (citing Sibron v. New York, 392 U.S. 40, 50–58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)); State v. Meyer, 12 Or.App. 486, 492–93, 507 P.2d 824 (1973). Our implicit conclusion in Meyer, 31 Or.App. at 777 n. 1, 571 P.2d 550, 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, we held in a per curiam opinion that the appellant's appeal of a contempt judgment in a dissolution matter, in which the appellant had been sentenced to two years bench probation, was moot, because the bench probation had expired, the “[a]ppellant has not identified any collateral consequences that flow from the judgment of contempt, and we are aware of none.” 230 Or.App. at 428, 215 P.3d 124.

Reconciling those cases, we now conclude expressly that, although punitive contempt is not a “crime,” State v. Campbell, 246 Or.App. 683, 684, 267 P.3d 205 (2011), a judgment imposing a punitive sanction of confinement for contempt (like Phillips but unlike Hawash) is sufficiently analogous to a criminal conviction that it carries a collateral consequence of a stigma that is analogous to a criminal conviction and, for that reason, an appeal of a judgment of punitive contempt is not rendered moot by completion of the confinement. In reaching that conclusion, we are particularly persuaded by the fact that, in the context of punitive contempt, the statutes authorize a sanction as punishment for past conduct and for a definite period of confinement of up to six months. ORS 33.105(2); see also Brown v. Multnomah County Dist. Ct., 280 Or. 95, 103, 570 P.2d 52 (1977) (punitive confinement for an act indicates the act is a crime). We also note that, in the context of punitive contempt, all the procedures applicable to a criminal proceeding (except the right to a jury trial) apply, ORS 33.065(5), (6), including the standard of proof beyond a reasonable doubt, ORS 33.065(9). Those factors lead us to conclude that the collateral consequence that flows from the imposition of a sanction of confinement for punitive contempt is analogous to that which flows from a criminal conviction. In this case, the sanction of confinement imposed for contempt adds six months to the sanction of confinement imposed as a result of the probation violation. For that reason, we reject the state's contention that the contempt sanction does not give rise to stigma in addition to that already resulting from the probation conviction. See E.A.L., 179 Or.App. at 556, 41 P.3d 440 (the larger the period of commitment, the greater the stigma). We conclude that the sanction having been served does not render the appeal moot.

On the merits, defendant contends that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to establish a contempt; the court having ruled that the test result itself was inadmissible as substantive evidence, the only evidence that he had...