Opinion
A166946
10-13-2021
STATE of Oregon, Plaintiff-Respondent, v. Ted Edward LOGAN, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, for motion.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, for motion.
Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
PER CURIAM In this criminal appeal, we issued an opinion affirming defendant's conviction for driving under the influence of intoxicants. See State v. Logan , 314 Or. App. 72, 496 P.3d 1 (2021). Defense counsel now moves under ORAP 8.05(2)(c)(ii) to vacate the conviction and dismiss the appeal on the ground that defendant has died and, in fact, died nearly a year ago. Defense counsel represents that, had defendant not died, he would have sought to challenge his conviction in the Supreme Court. The state does not oppose the motion. For the reasons that follow, we vacate our opinion, vacate the judgment of conviction, and dismiss the appeal.
Defense counsel has not specifically requested that we vacate our opinion, just that we vacate the judgment of conviction and dismiss the appeal. We nevertheless conclude that, under State v. Hemenway , 353 Or. 498, 302 P.3d 413 (2013), vacatur of our opinion is warranted. There, similar to the situation here, the Supreme Court issued its opinion in the case after, unbeknownst to the court, the defendant had died. Id . at 500, 302 P.3d 413. The defendant's counsel moved under ORAP 8.05(2)(c)(ii) to vacate the conviction at issue and dismiss the appeal. Id. at 503, 302 P.3d 413. In addition, the defendant's counsel argued that that court's opinion, as well as the opinion of our court, should be vacated. Id .
The court agreed. It explained that, as to its decision, vacatur was required because the case had been moot, and therefore outside the judicial power to resolve under Yancy v. Shatzer , 337 Or. 345, 362, 97 P.3d 1161 (2004), at the time the opinion issued. Hemenway , 353 Or. at 503-04, 302 P.3d 413. Alternatively, the court reasoned that equitable considerations counseled vacatur of its decision and our decision. Those equitable considerations were (1) that mootness did not result from the defendant's voluntary action and (2) that "the concern underlying [ ORAP 8.05(2)(c)(ii) ] that the criminal judgment should be vacated if a criminal defendant dies while pursuing a direct appeal that might result in the reversal of the conviction" supported the notion that appellate opinions should also be vacated if a criminal defendant dies during the pendency of an appeal. Id. at 505-06, 302 P.3d 413. Hemenway ’s mootness analysis—specifically, its conclusion, based on Yancy , that moot cases are completely outside the scope of the judicial power of Oregon courts to resolve—has not survived Couey v. Atkins , 357 Or. 460, 520, 355 P.3d 866 (2015) (abrogating Yancy ). Accordingly, Hemenway ’s conclusions that it is beyond the judicial power for a court to issue an opinion in a case after the defendant has died and that an opinion issued after the death of a criminal defendant must be vacated, may no longer be correct. Nevertheless, the equitable considerations in favor of vacatur identified in Hemenway have not changed and are equally present in this case. Further, we see no grounds for taking an approach different from the one taken by the Hemenway court, even if we might have the discretion to weigh the equities differently.
Our decision in State v. Logan , 314 Or. App. 72, 496 P.3d 1 (2021), is vacated as moot; the judgment of conviction is vacated; appeal dismissed as moot.