792 March 12, 2025 No. 217 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOEL CRISTIAN NIETO, aka Joel Christian Nieto, Defendant-Appellant.

Washington County Circuit Court 19CR78914; A179144 Brandon M. Thompson, Judge.

Submitted April 29, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Francis C. Gieringer, Deputy Public Defender, Office Of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

Appeal dismissed as moot.

Nonprecedential Memo Op: 338 Or App 792 (2025) 793 PAGÁN, J.

Defendant appeals from a judgment that found him in violation of the terms of his probation and then modified his probation. Defendant assigns error to the court’s finding that defendant violated the terms of his probation, arguing that there was insufficient evidence. The state argues that defendant’s appeal is moot because he has finished serving his probation. Defendant counters that he may face collat- eral consequences as a result of the judgment, and therefore the appeal is not moot. Under the circumstances, we agree with the state, and dismiss this appeal as moot.

Defendant was convicted of driving under the influ- ence of intoxicants (DUII), ORS 813.010, and sentenced to months of bench probation. As a condition of his pro- bation, he was required to undergo an alcohol evaluation and engage in any resulting treatment recommendations.

Although alcohol treatment was recommended, the treat- ment program refused to accept defendant into the pro- gram because he had outstanding untreated mental health issues—namely that he was not taking a prescribed mental health medication. Defendant thus did not enter the alco- hol treatment program. As a result, the trial court ordered defendant to show cause for why he should not be found in violation of his probation. Defendant argued that receiving mental health treatment was not a condition of his pro- bation and that he had received an alcohol evaluation as required. The court reasoned that defendant had willfully chosen to stop taking his prescribed medication, which “would have helped him take the path forward” to alcohol treatment, and, accordingly, found defendant in violation of his probation. In turn, the court converted the bench proba- tion into formal probation, and imposed new mental health conditions as part of probation—but kept the length of pro- bation the same. Defendant’s probation ended in January 2024, after he filed this appeal, but before its submission for consideration.

On appeal, defendant argues that there was insuffi- cient evidence to support a finding that he had violated the terms of his probation because the trial court did not impose mental health conditions as part of the initial probation 794 State v. Nieto package. The state counters that the appeal is moot, and that in the alternative, the evidence was sufficient. At the request of the Appellate Commissioner, the parties filed supplemental briefing on the issue of mootness.

We do not typically decide cases that have become moot. State v. Preston-Mittasch, 319 Or App 507, 508, 510 P3d 931, rev den 370 Or 212 (2022). “An issue is moot if the court’s decision on the matter will no longer have a practi- cal effect on the rights of the parties.” Id. Once probation has ended, any errors stemming from it are typically moot.

See, e.g., State v. Smith, 223 Or App 250, 252, 195 P3d 467 (2008) (dismissing as moot a challenge to a probation vio- lation after probation ended). Collateral consequences of a judgment may prevent a controversy from being moot. Dept. of Human Services v. A. B., 362 Or 412, 427, 412 P.3d 1169 (2018). “A collateral consequence for purposes of mootness is a probable adverse consequence to the defendant as a result of the challenged action.” State v. Hauskins, 251 Or App 34, 36, 281 P3d 669 (2012) (emphasis added). “The record must show more than a ‘mere possibility’ that collateral conse- quences will occur.” Id. The burden of persuasion is borne by the party alleging mootness, but “it will be up to the appel- late court to determine the existence and significance of * * * [collateral] consequences and to decide, as a prudential mat- ter, whether an appeal is moot.” A.B., 362 Or at 426.

Defendant identifies the following collateral conse- quences: 1) the imposition of the mental health conditions, 2) that the sentence was served in public, and 3) he requires an exoneration in order to succeed in any future malpractice claim. We address each briefly.

First, Defendant argues that the imposition of men- tal health conditions is a collateral consequence that would not have existed if not for the finding of a probation violation.

Putting aside whether the imposition of the condition itself was an adverse consequence, the court had the power to implement a mental health requirement even in the absence of a probation violation. See ORS 137.540(9)(a) (“The court may at any time modify the conditions of probation.”); State v. Laizure, 246 Or App 747, 753, 268 P3d 680 (2011), rev den 352 Or 33 (2012) (court could change terms of probation for Nonprecedential Memo Op: 338 Or App 792 (2025) 795 cause, even in the absence of a probation violation). The record demonstrates that the court had cause to modify pro- bation to include mental health conditions, and because it had such power regardless of whether a violation was found, we cannot say that the outcome would have been different.

Thus, there is no probable adverse consequence here.

Second, defendant argues that the sanction was effectively served in public, relying on State v. Langford, 260 Or App 61, 67, 317 P3d 905 (2013). But Langford is inappo- site because it is not a probation case, and regarded a sen- tence in which the defendant was placed on a work crew, which was in the view of the general public, which is unlike the probation at issue here. We are not persuaded by defen- dant’s contention.

Third, defendant argues that in order to succeed on a malpractice claim against defense counsel, he will need an exoneration, and thus the appeal is not moot. See Gwynne v. Myers, 331 Or App 561, 563 n1, 546 P3d 918, rev den 372 Or 763 (2024) (discussing that to sue for malpractice regard- ing a probation revocation, a plaintiff must first obtain an exoneration); Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993) (originating the exoneration rule for malpractice claims). But defendant hasn’t identified what malpractice might have been committed. The mere assertion that a mal- practice claim could be brought is insufficient, especially in a posture where a party is not inherently challenging the effectiveness of their counsel.

In any event, a ruling of this court would not pro- vide exoneration. That is because the violation finding did not result in revocation of probation and a term of incarcer- ation; the court merely modified the conditions of probation and continued it, something that the court had the author- ity to do regardless of whether the court was correct to view defendant’s conduct as a violation of the terms of probation.

Accordingly, on these facts, it would be difficult to view a cor- rection of any error in the violation finding as resulting in the type of “exoneration” required to pursue a malpractice claim.1 Moore-Reed v. Griffin, 332 Or App 258 (unpublished), rev allowed 373 Or 154 (2024), concerned application of the Stevens “exoneration” rule; the plain- tiff in that case petitioned for review, arguing that the Supreme Court should 796 State v. Nieto Lastly, defendant argues in the alternative that this error is capable of repetition yet likely to evade judicial review and asks us to reach the merits under ORS 14.175.

Even assuming without deciding that the criteria in ORS 14.175 have been met, we decline to exercise the authority that ORS 14.175 affords us to decide the otherwise moot issue.

Appeal dismissed as moot.

consider abandoning that rule. We note that the Supreme Court recently allowed review in that case.