S058179, Opinion — State v. Portis

559
Argued and submitted June 30, petition for review dismissed as moot July 29, 2010
STATE OF OREGON,
Respondent on Review,
v.
AISHISH MONIQUE PORTIS,
Petitioner on Review.
(CC 0802300706; CA A143558; SC S058179)
236 P3d 718
En Banc
On review from the Court of Appeals.*
Jedediah Peterson, Office of Public Defense Services,
Salem, argued the cause for petitioner on review. With him
on the briefs were Peter Gartlan, Chief Defender, and Eric
Johansen, Senior Deputy Public Defender.
* Appeal from Multnomah County Circuit Court, Eric J. Bloch, Judge. 233 Or
App 256, 225 P3d 841 (2010).

State v. Portis
Leigh A. Salmon, Assistant Attorney General, Salem,
argued the cause for respondent on review. With her on the
brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.
DE MUNIZ, C. J.
The petition for review is dismissed as moot.

Cite as 348 Or 559 (2010) 	561
DE MUNIZ, C. J.
Defendant seeks review of a Court of Appeals deci-
sion concluding that that court lacked jurisdiction over defen-
dant's appeal of a circuit court judgment. The circuit court
had determined that defendant was not entitled to be consid-
ered by the Department of Corrections (DOC) for increased
earned time credit under Oregon Laws 2009, chapter 660,
sections 17 and 18. State v. Portis, 233 Or App 256, 225 P3d
841 (2010). We allowed defendant's petition for review and,
for the reasons stated below, now conclude that defendant's
claim on review is moot and that we must dismiss her peti-
tion for review.
In 2008, a grand jury indicted defendant on 62
counts of identity theft. ORS 165.800. In March 2008, pursu-
ant to a plea agreement, defendant pleaded guilty to five
counts of identity theft, and the trial court dismissed the
other counts. On three of the five counts to which defendant
pleaded guilty, the judgment of conviction sentenced defen-
dant to consecutive terms of 13 months each, for a total of 39
months of incarceration. 1 The sentences on the remaining
two counts were made concurrent. The judgment also pro-
vided that defendant could be considered for any form of
reduction in her sentence for which she was "otherwise eligi-
ble at the time of sentencing."
When 	defendant 	committed 	her 	crimes, 	ORS
421.121(2) (2007) provided that the maximum amount of
reduction in a term of incarceration that could be earned for
appropriate institutional behavior (so called "earned time
credit") could not exceed 20 percent of the total term of incar-
ceration. In 2009, the legislature amended ORS 421.121 to
potentially increase the maximum to 30 percent for inmates
not convicted of certain violent felonies. 	Or Laws 2009,
ch 660, §§ 17, 18 (House Bill (HB) 3508). 2 Section 18 of the
1 Although defendant is no longer incarcerated, she remains under post-prison
supervision. If we were to agree with defendant's argument that the Court of
Appeals otherwise had jurisdiction over her appeal, and were she to prevail on the
merits of her appeal and be eligible for increased earned time credit, her term of
post-prison supervision would be reduced. Consequently, defendant's case is not
moot based on the fact that she is no longer incarcerated.
2 Or Laws 2009, ch 660, § 17(2)(a), provided (deleted text in brackets and ital-
ics; new text in boldface type):

562 	State v. Portis
amendment set out the procedure for determining whether
an inmate would be considered for the additional 10 percent
earned time credit. In accordance with section 18, the DOC
was required to provide notice of the inmate's potential eligi-
bility for the additional earned time credit to the inmate and
to the victim of the crime, as well as the district attorney, the
presiding judge, and the trial court administrator for the
county in which the inmate had been convicted. On timely
objection by the victim or the district attorney, the court was
required to hold a hearing to decide whether to authorize the
DOC to consider the inmate for "a reduction in the term of
incarceration under ORS 421.121 that exceeds 20 percent of
the total term of incarceration[.]"
Defendant's crimes were not among those statuto-
rily excluded from eligibility for the additional earned time
credit. However, upon learning that defendant could claim
eligibility for increased earned time credit under the 2009
legislation, the Multnomah County District Attorney filed an
objection opposing defendant's eligibility for the increased
earned time credit. Following a hearing on the record and in
open court, the trial court found that, given the nature of
defendant's crimes, the large number of victims involved, and
the number of counts dismissed as part of her plea agree-
ment, there was a substantial reason to deny defendant eli-
gibility to earn the additional 10 percent earned time credit
available under the 2009 legislation. The trial court there-
after entered a supplemental judgment providing that defen-
dant "may not be considered" for the additional earned time
credit.
Defendant appealed from the supplemental judg-
ment and moved for an expedited appeal. The Appellate
Commissioner for the Court of Appeals sua sponte issued an
order requiring defendant to show cause why her appeal
should not be dismissed for lack of jurisdiction. 3 See State v.
"The maximum amount of time credits earned for appropriate institu-
tional behavior or for participation in the adult basic skills development pro-
gram described in ORS 421.084 may not exceed [20] 30 percent of the total
term of incarceration in a Department of Corrections institution."
3 ORS 19.235(3) provides, in part:
"When * * * the appellate court on its own motion raises the issue whether
the decision is appealable, the appellate court may make a summary determi-
nation of the appealability of the decision."

Cite as 348 Or 559 (2010) 	563
Hart, 188 Or App 650, 653, 72 P3d 671 (2003) (only post-
judgment orders that impose a sentence, suspend imposition
or execution of a sentence, or affect probation can be appealed
under ORS 138.053(1)). Defendant and the state each filed
responses to the order to show cause. The Court of Appeals
then dismissed the case, concluding that "[t]here is no right of
appeal when the trial court denies eligibility for additional
earned time credit[] to an inmate, because the ruling does
not alter the original judgment." Portis, 233 Or App at 260
(emphasis in original). Reasoning that "HB 3508, section 18,
provides for entry of a supplemental judgment only when the
trial court determines that it is appropriate to allow the
Department of Corrections to consider the inmate for a sen-
tence reduction," the court held that HB 3508 does not pro-
vide for entry of a supplemental judgment when a trial court
determines that an inmate is ineligible for the additional
earned time credit. Id. (emphases in original). The Court of
Appeals therefore remanded the case to the trial court with
instructions to vacate the supplemental judgment and to
reenter its decision as a nonappealable order. Id. at 261. As
noted, we allowed defendant's petition for review.
On review, defendant challenges that disposition,
asserting that an appeal may be taken from a judgment or a
post-judgment order if the order or judgment includes the
"[i]mposition of a sentence." ORS 138.053(1). She argues that
the supplemental judgment rendered by the circuit court in
this case "added a term" to her sentence that was not there
before. According to defendant, the circuit court's conclusion
that the DOC may not consider her for the additional earned
time credit, and therefore a sentence reduction, added a new
term to her original sentence. We do not reach that question,
however, because, as we shall explain, defendant's case has
become moot. See Yancy v. Shatzer, 337 Or 345, 349, 97 P3d
1161 (2004) (when 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 dis-
miss the claim as moot).
During the 2010 special legislative session, the leg-
islature amended HB 3508 and ORS 421.121 to reduce the
potential maximum earned time credit from 30 percent to
20 percent of an inmate's total term of incarceration. Or Laws

564 	State v. Portis
2010, ch 2, § 5(5) (Senate Bill (SB) 1007). 4 The legislature pro-
vided, however, that inmates who had already been granted
eligibility for the additional earned time credit would retain
them. More specifically, SB 1007 provides, in part:
"Section 18 [ofHB 3508] is amended to read:
"Sec. 18. (l)(a) 	Notwithstanding section 49(6), [of HB
3508], and except as provided in paragraph (b) of this sub-
section, the amendments to ORS 421.121 by section 17 [of
HB 3508] apply to inmates who were sentenced before July 1,
2009, and are not prohibited by any other provision of law
from obtaining a reduction in the term of incarceration
under ORS 421.121 if, before the effective date of this 2010
Act:
"(A) 	The court has entered the supplemental judg-
ment described in subsection (5)(b)r 5l of this section; or
"(B) 	The court has, pursuant to subsection (7)(b) of
this section, ordered on the record in open court that the
Department of Corrections may consider the inmate for a
reduction in the term of incarceration under ORS 421.121
that may not exceed 30 percent of the total term of incarcer-
ation in a department institution."
Or Laws 2010, ch 2, § 7. Thus, SB 1007 divides into two
groups those inmates initially identified under HB 3508 as
potentially eligible for the additional earned time credit. One
group-those inmates, who before the effective date of SB
1007, were determined by a court to be eligible for additional
4 Section 5(5) did so by advancing the operative date of Oregon Laws 2009,
chapter 660, section 19, from July 1, 2013, to the effective date of SB 1007, or
February 17, 2010. Section 19 provides, in part (deleted text in brackets and italics;
new text in boldface type):
"The maximum amount of time credits earned for appropriate institu-
tional behavior or for participation in the adult basic skills development pro-
gram described in ORS 421.084 may not exceed [30] 20 percent of the total
term of incarceration in a Department of Corrections institution."
5 Subsection 5(b) provides:
"If a notice of objection is not filed with the court within the time period
described in subsection (4) of this section and the sentencing court determines
that it is appropriate to authorize the department to consider an inmate for a
reduction in the term of incarceration under ORS 421.121 that may not exceed
30 percent of the total term of incarceration in a department institution, the
court shall enter a supplemental judgment using the form of judgment submit-
ted by the department under subsection (14)(a) of this section."

Cite as 348 Or 559 (2010) 	565
earned time credit-retains the benefit ofHB 3508. However,
a second group-those inmates who had not obtained the
necessary court approval before the effective date of SB
1007-lost their eligibility for additional earned time credit
under HB 3508. Defendant is in that second group of inmates,
viz., the inmates who no longer are eligible for additional
earned time credit under HB 3508. Before February 17,
2010, the trial court did not enter a supplemental judgment
under subsection (5)(b) determining defendant to be eligible
for additional earned time credit (section 18(a)); and the trial
court did not order on the record in open court that the DOC
may consider defendant for a reduction in her term of incar-
ceration (section 18(b)). Thus, any decision by this court
would have no practical effect on her rights under that law.
For that reason, the petition for review must be dismissed as
moot.
The petition for review is dismissed as moot.