No. 592 August 28, 2024 545

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

GRANT DEWAYNE ENGLAND,

Defendant-Appellant.

Multnomah County Circuit Court

19CR24470; A178600

Heidi H. Moawad, Judge.

Submitted on January 19, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Stacy M. Du Clos, Deputy Public Defender, 

Office of Public Defense Services, filed the briefs for 

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Robert C. Hansler, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.
546 State v. England

MOONEY, J.

Defendant appeals from a judgment revoking his 

probation and imposing a 180-day jail sanction. In a single 

assignment of error, defendant argues that the trial court 

erred in revoking his probation based on its finding that 

defendant committed a new crime because it did not require 

the state to prove that allegation beyond a reasonable doubt. 

Defendant acknowledges that we have previously held that 

proof beyond a reasonable doubt is not required in probation 

revocation proceedings, State v. Fortier, 20 Or App 613, 533 

P2d 187 (1975), but he asks us to overrule Fortier as plainly 

wrong. The state responds that the case is moot because 

defendant has already served the jail sanction imposed at 

the revocation hearing, and that, regardless, his argument 

fails on the merits. Although we conclude that the case is 

not moot, we decline to overrule Fortier because we are not 

persuaded that it is plainly wrong. We therefore affirm.

“We review a trial court’s decision to revoke probation for an abuse of discretion.” State v. Hammond, 218 

Or App 574, 577, 180 P3d 137 (2008). However, we review any 

legal conclusions predicating the revocation for legal error. 

State v. Martin, 370 Or 653, 657-58, 522 P3d 841 (2022).

In April 2020, to resolve three criminal cases 

against him, defendant pleaded guilty to two counts of 

strangulation constituting domestic violence, two counts of 

fourth-degree assault constituting domestic violence, and 

one count of unlawful use of a weapon. In each case, he was 

sentenced to 60 months of probation, to be served concurrently. The terms of his probation provided that defendant 

was prohibited from having any personal contact with one 

of his victims, E, who also had a stalking protective order 

against defendant. The trial court also required defendant 

to participate in domestic violence treatment.

In April 2022, when E let her dog outside one evening, defendant entered her apartment and refused to leave. 

Police responded to the scene, and defendant’s probation 

officer subsequently filed a report alleging that defendant 

had violated the terms of his probation in all three cases. At 

the subsequent probation revocation hearing, the trial court 
Cite as 334 Or App 545 (2024) 547

continued defendant’s probation in two of the cases. In the 

third case, the trial court revoked defendant’s probation and 

imposed a 180-day jail sanction based on its findings that 

defendant failed to obey all laws by violating the stalking 

protective order and that he violated the condition of his 

probation prohibiting personal contact with E. Defendant 

appeals the revocation in the third case.1

We first address the state’s contention that this 

appeal is moot because defendant has completed the 180-

day jail sanction. Generally, an appeal from a judgment 

revoking probation becomes moot once the defendant has 

served the sanction imposed at the probation violation proceeding. State v. Morter, 319 Or App 454, 455, 508 P3d 598 

(2022). However, if the defendant remains on probation after 

serving the sanction, the trial court’s discretion to consider 

the previous probation violation at a future probation violation proceeding is a collateral consequence that prevents 

the appeal from being moot. State v. Stroud, 293 Or App 314, 

316-17, 428 P3d 949 (2018).

In Stroud, we concluded that the defendant’s appeal 

was not moot where the trial court continued the defendant’s probation but imposed a 30-day jail sentence as an 

additional condition of her probation. Id. at 317. We reasoned 

that because “the court has the discretion to look to [the 

defendant’s] record to determine the sanction for any future 

probation violation[,]” the defendant had met her burden to 

identify a collateral consequence. Id. at 317-18. By contrast, 

in Dunn v. Board of Parole, 310 Or App 249, 251, 487 P3d 

410, rev den, 368 Or 702 (2021), we held that the defendant’s 

challenge to a judgment revoking his post-prison supervision and imposing a 120-day jail sanction was moot. There, 

following the sanction and revocation, the defendant was 

convicted of a series of new offenses and sentenced to 120 

months in prison followed by a term of post-prison supervision, to be served concurrently with his remaining supervision period. Id. The defendant argued that under Stroud, the 

1 Defendant also appealed the judgments continuing his probation in the two 

related cases. Those appeals were dismissed for lack of jurisdiction, and accordingly, those judgments are not directly before us in this appeal. However, as we 

discuss, defendant’s continued probation in those two cases is relevant to the 

issue of mootness in the case that is before us.
548 State v. England

possible adverse legal consequences with respect to future 

sanctions for violations of his post-prison supervision precluded mootness. Dunn, 310 Or App 253. We rejected that 

argument, noting that in Stroud, “the adverse legal consequence related to possible future sanctions for violations of 

the probation the [defendant] was then serving,” whereas in 

Dunn, “the possible adverse effect relate[d] to possible sanctions for future violations of post-prison supervision that 

[the defendant] will serve after he completes a prison term 

of 120 months on his new convictions.” Dunn, 310 Or App at 

253 (emphasis added).

Here, we agree with defendant that the posture of 

his appeal is more analogous to the defendant in Stroud than 

the defendant in Dunn. Defendant remains on probation in 

the two related cases until April 2025, and he is subject to 

the same probation condition prohibiting personal contact 

with the victims in those two cases as he was in the case in 

which his probation was revoked. At defendant’s sentencing 

for the underlying offenses, the trial court emphasized that 

the domestic violence conditions applied in the concurrent 

probation sentences and explained that if he “mess[es] up 

[in] one place, you can get *** dinged in all the cases.” When 

defendant’s probation officer learned that defendant had 

entered E’s apartment, he filed a violation report in all three 

cases, and the court held a single revocation hearing. Under 

those circumstances, it is highly probable that defendant’s 

previous probation violation in the instant case would factor 

into the trial court’s consideration of any future probation 

violation in the related cases, and defendant has therefore 

identified a collateral consequence sufficient to prevent his 

appeal from being moot.

Having concluded that the case is not moot, we turn 

to the merits. Defendant argues, as he did below, that “for 

a trial court to find that a probationer has violated probation by committing a crime, the state must prove that the 

probationer committed the alleged crime beyond a reasonable doubt.” As defendant acknowledges, we have previously 

held that proof beyond a reasonable doubt is not required in 

revocation proceedings—rather, “proof by a preponderance 

of the evidence is sufficient.” Fortier, 20 Or App at 616.
Cite as 334 Or App 545 (2024) 549

We overrule precedent only when it is plainly wrong, 

a rigorous standard satisfied only in exceptional cases, and 

the party seeking to change a precedent must affirmatively 

persuade us that we should abandon our prior decision. 

State v. Civil, 283 Or App 395, 415-17, 388 P3d 1185 (2017).

In asking us to overrule Fortier, defendant contends 

that he raises a new argument that we did not previously 

address. Specifically, defendant argues that while a court 

may apply the preponderance standard to find that a defendant has committed an element of a crime when that element 

constitutes a probation violation, a court is not permitted to 

revoke a defendant’s probation based on the commission of 

a new crime absent a valid criminal conviction. That argument, however, is similarly foreclosed by Fortier, in which 

we also held that the trial court could revoke defendant’s 

probation even though he had been acquitted of the criminal 

charge that formed the basis of the probation revocation. 20 

Or App at 616; see also State v. Donovan, 305 Or 332, 342, 

751 P2d 1109 (1988) (holding that if the state elects and the 

trial court agrees to conduct a probation revocation hearing 

before a criminal trial, a trial court’s finding that the state 

has failed to prove a necessary element by a preponderance 

of the evidence will collaterally estop the state from proving that element in a subsequent criminal trial on a new 

offense). We are not persuaded that Fortier is plainly wrong, 

and thus, we decline to overrule it. The trial court did not 

err in applying a preponderance of the evidence standard at 

defendant’s probation revocation hearing.

Affirmed.