477 P.3d 1222
Or. Ct. App.2020Background
- Lomack pleaded guilty to felon in possession of a firearm (FIP) and was sentenced to three years’ probation in Case No. 16CR30449.
- He was later convicted of misdemeanor assault (domestic violence) against his girlfriend L in Case No. 17CR71934 and received two years’ probation with a no-contact condition as to L.
- After repeated violations, the trial court revoked his probation in the assault case and then added a no-contact condition as to L to Lomack’s FIP probation, over Lomack’s objection that the FIP conviction was unrelated to L.
- Lomack appealed the imposition of the no-contact condition in the FIP case; while that appeal was pending, the trial court revoked Lomack’s FIP probation for violating the no-contact condition.
- Lomack did not appeal the FIP probation-revocation judgment. He argues this appeal is not moot because of potential collateral consequences (post-conviction relief, post-prison supervision terms, and PPS fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Lomack’s appeal challenging the no-contact probation condition in the FIP case moot? | The appeal is moot because Lomack’s probation was revoked and he did not appeal that revocation; any decision on the condition cannot undo the revocation. | The appeal is not moot: collateral consequences (possible post-conviction relief, PPS terms, PPS fees) make a merits decision practically relevant. | Appeal dismissed as moot. The revocation judgment remains; identified collateral consequences are too speculative to avoid mootness. |
Key Cases Cited
- State v. K. J. B., 362 Or 777 (2018) (mootness occurs when a decision will no longer have a practical effect)
- Garges v. Premo, 362 Or 797 (2018) (mootness when intervening events eliminate relief)
- State v. Hauskins, 251 Or App 34 (2012) (collateral consequences must be probable, not speculative)
- Dept. of Human Services v. A. B., 362 Or 412 (2018) (appellant must identify practical consequences; court assesses significance)
- Jackson v. Franke, 364 Or 312 (2019) (post-conviction counsel-performance standard judged from counsel’s perspective at the time)
- Penn v. Board of Parole, 365 Or 607 (2019) (board may set PPS terms to promote public safety or assist reformation)