STATE v. WELCH

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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Donald Arthur WELCH, Defendant-Appellant.

A158592

    Decided: November 29, 2017

Before DeHoog, Presiding Judge, and Shorr, Judge, and Aoyagi, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, filed the brief for respondent.

 Defendant appeals a judgment of punitive contempt based on a finding that he violated the terms of a restraining order prohibiting him from, among other things, “knowingly be[ing] or stay[ing] within 500 feet” of his ex-girlfriend. We conclude that defendant's appeal is moot. Therefore, we dismiss.

Defendant was charged with contempt for failing to promptly comply with the terms of the restraining order against him. During the contempt proceeding, defendant moved for a judgment of acquittal, which the trial court denied. The court later found defendant in contempt and entered a judgment against him. Although it was authorized to impose fines, community service, or jail time as a punitive sanction under ORS 33.105, the court chose not to impose any sanctions. Instead, after holding defendant in contempt, the court explained to defendant that “the court's not going to impose any consequence as a result of this.” The court then told defendant that “the restraining order continues in place. *** You need to comply with that restraining order.” The only condition listed on the General Judgment of Contempt entered by the court reflected that statement, in that it required defendant only to “[a]bide by any active restraining order.”

On appeal, defendant argues that the trial court erred when it denied his motion for judgment of acquittal and subsequently entered a punitive contempt judgment against him. The state argues that defendant's appeal is moot. Specifically, the state asserts that defendant did not suffer any adverse collateral consequences from the judgment of contempt because the court did not impose any sanctions on defendant; rather, the court only ordered defendant to comply with the existing restraining order, which he had a preexisting obligation to do. Defendant argues that an appeal from a judgment of punitive contempt is not moot, regardless of whether the court imposes sanctions on the defendant, because “punitive contempt proceedings carry significant social stigma.” In addition, defendant argues that his appeal is not moot because the contempt judgment could have adverse legal consequences for him; specifically,  if he were found in contempt for violating the restraining order a second time, he could simultaneously be held responsible for violating the contempt judgment that ordered him to comply with the restraining order. The state responds that that “mere possibility” is insufficient to prevent defendant's appeal from being moot.

A case is moot if “resolving the merits of a claim will have no practical effect on the rights of the parties.” State v. Langford, 260 Or. App. 61, 66, 317 P.3d 905 (2013). “Even if the main issue in controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances.” State v. Hauskins, 251 Or. App. 34, 36, 281 P.3d 669 (2012) (emphasis in original). For example, when a defendant challenges a punitive sanction for contempt, the sanction having been served does not necessarily render the appeal moot because, in at least some instances, “a punitive contempt sanction carries a collateral consequence of a stigma analogous to a criminal conviction.” Langford, 260 Or. App. at 67, 317 P.3d 905 (internal quotation marks omitted).

We have addressed mootness in the punitive contempt context a number of times in the past. In State ex rel. State of Oregon v. Hawash, 230 Or. App. 427, 215 P.3d 124 (2009), we held that an appeal from a judgment of contempt for failure to pay court-ordered child support was moot. There, as part of the contempt judgment, the trial court imposed bench probation as a sanction. That probation had expired by the time the appeal reached us. We explained that “[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.

In a subsequent case, Hauskins, we reached a different conclusion than in Hawash. In Hauskins, the defendant was sentenced to confinement in the county jail for 180 days as a punitive sanction for violating his probation. The state argued that the appeal was moot because the defendant had been released from confinement. We concluded that, “although punitive contempt is not a ‘crime,’ a judgment imposing a punitive sanction of confinement for contempt *** is sufficiently analogous to a criminal conviction  that it carries a collateral consequence of a stigma that is analogous to a criminal conviction.” 251 Or. App. at 38-39, 281 P.3d 669. Due to that stigma, when a judgment of contempt includes as a punitive sanction a period of confinement, “an appeal of [that] judgment *** is not rendered moot by completion of the confinement.” Id.

In Langford, we took an expansive view of Hauskins. 260 Or. App. at 66-67, 317 P.3d 905. The trial court in Langford found the defendant in contempt for failing to perform court-ordered community service and imposed as a punitive sanction additional community service on a work crew. We concluded that the defendant's appeal was not moot even though he had completed the sanction. Id. at 67, 317 P.3d 905. We were not persuaded by the state's attempt to limit our ruling in Hauskins to only those appeals involving a punitive sanction of confinement. Id. We explained that Hauskins “did not hold that confinement was the only sanction that imposed a stigmatizing collateral consequence.” Id. In both cases, “we were 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.” Id. We were further persuaded by the fact that, “in the context of punitive contempt, all of the procedures applicable to a criminal proceeding (except the right to a jury trial) apply.” Id. Finally, we explained that “assignment to a work crew arguably carries with it a social stigma even greater than confinement, because work crew is served in view of the general public.” Id.

In this case, defendant argues that Langford “calls into doubt the continued validity of Hawash.” Defendant asks that we declare that appeals from judgments of punitive contempt do not become moot, regardless of what sanctions, if any, the court imposes. Defendant reasons that Langford demonstrates that contempt proceedings, on their own, produce sufficient social stigma to prevent appeals from judgments of contempt from becoming moot. We disagree. While we considered the quasicriminal nature of punitive contempt proceedings persuasive in Langford and Hauskins, we also highlighted the public and inherently stigmatizing sanction imposed on the defendants in those cases. Put differently, in those cases we concluded that the  contempt procedures combined with a sufficiently stigmatizing punitive sanction entailed, as a collateral consequence, enough social stigma for us to hold that the appeal was not moot. Langford, 260 Or. App. at 67, 317 P.3d 905 (“[C]onfinement is [not] the only sanction that impose[s] a stigmatizing collateral consequence. * * * [The sanction in this case] carries with it a social stigma even greater than confinement, because [it] is served in view of the general public.” (Emphasis added.)); Hauskins, 251 Or. App. at 38-39, 281 P.3d 669 (“[A] judgment imposing a punitive sanction of confinement for contempt * * * is sufficiently analogous to a criminal conviction that it carries a collateral consequence of stigma that is analogous to a criminal conviction.” (Emphasis added.)).

Significantly, Hawash held that an appeal from a judgment of punitive contempt was moot when a bench sanction for failure to pay child support had expired while the appeal was pending. 230 Or. App. at 428, 215 P.3d 124. We have not overruled Hawash, implicitly or otherwise. In that case, we implied that a judgment of contempt alone may not generate sufficient stigma to save an appeal from being moot. As a result, we dismissed that appeal after concluding that the defendant had not identified, and we were not aware of, any collateral consequences that flowed from the judgment of contempt. Id.

Here, the trial court ordered defendant to comply with the restraining order against him, which defendant had a preexisting obligation to do. The court expressly decided not to impose any sanctions or “consequences” on defendant. Defendant has not identified how a contempt judgment that imposes no sanction and only mandates compliance with a preexisting court order generates sufficient social stigma to save the appeal from being moot. Absent a sufficiently stigmatizing sanction, we are not aware of any collateral consequences that flow directly and solely from the judgment of contempt itself. See Hawash, 230 Or. App. at 428, 215 P.3d 124.1

 Defendant next argues that his appeal is not moot because the contempt judgment might have adverse legal consequences for him. Specifically, defendant argues that, if he is found in contempt for violating the restraining order a second time, he might simultaneously be found in contempt of the contempt judgment reiterating his obligation to comply with that order. Defendant reasons that he might be sanctioned more harshly by a future contempt judgment because the trial court could find that he violated two distinct court orders.

Whether defendant will again violate the restraining order and face another contempt hearing at which the trial court might issue a harsher sanction due to defendant's dual violations is uncertain and, at best, a mere possibility. Defendant has not demonstrated that he is presently the subject of a contempt proceeding, nor is it more than speculation that he might be subjected to such a proceeding in the future. The mere possibility that defendant might once again be found in contempt of the restraining order and, at the same time, be found in contempt of the contempt judgment requiring his full compliance with that restraining order, is not enough to make dismissal for mootness inappropriate. See Brumnett v. PSRB, 315 Or. 402, 407, 848 P.2d 1194 (1993) (“Petitioner is not presently the subject of any order of the state to pay any of the cost of his care [while held in the state hospital]. The mere possibility that the state might seek such an order at some future date is not sufficient to make dismissal [for mootness] inappropriate.”); State v. Smith (A134313), 223 Or. App. 250, 252, 195 P.3d 467 (2008) (holding that an appeal from a probation violation judgment imposing continued probation, when that probation had since expired, was moot because, “[e]ven assuming that * * * defendant's probation violation history might be relevant to some issue presented in a future criminal proceeding involving defendant, the mere possibility of that occurring is not enough to cause a decision in this case to have any practical  effect on the defendant's rights”); Blechschmidt v. Shatzer, 197 Or. App. 536, 544, 106 P.3d 682 (2005) (“The mere possibility that petitioner might at some future date apply for assistance and that his [drug-free zone] exclusion may or may not affect his eligibility is speculative at best and not sufficient to make dismissal inappropriate. Accordingly, the case is moot.”).

In sum, defendant's appeal is moot. Defendant has not identified, and we are not aware of, any collateral consequences that flowed from the judgment of contempt in this case. Under these circumstances, an appeal from a judgment of contempt, on its own and without any sanction on the contemnor, is moot. Further, the mere possibility that the contempt judgment in this case could have adverse legal consequences on defendant in a future contempt proceeding is not sufficient to make dismissal inappropriate.

Appeal dismissed.

FOOTNOTES

1.   Defendant relies in part on State v. Keenan/Waller, 307 Or. 515, 771 P.2d 244 (1989), in which the Supreme Court held that an appeal from a contempt judgment against an attorney who refused to comply with a court order was not moot. Like in this case, the trial court in Keenan/Waller imposed no sanction. But Keenan/Waller is distinguishable from this case because it involved an attorney discipline matter. In reaching its conclusion, the Supreme Court noted that a judgment of contempt might, on its own, have career-specific collateral consequences for an attorney who might face future disciplinary proceedings. 307 Or. at 518, 771 P.2d 244. That is, a contempt judgment could adversely impact a determination on an attorney's fitness to practice law. Defendant has not indicated that his chosen career is susceptible to specific collateral consequences as a result of the contempt judgment against him.

SHORR, J.

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