concurring.
I concur in the result reached by the majority but take a somewhat different path to the conclusion that youth’s appeal is not moot.
As the dissent points out, if youth’s only objective was release from secure confinement in a youth correctional facility, he has — at least for now — obtained that result by virtue of his return to a treatment placement. If youth’s objective is so characterized, it is difficult to quarrel with the dissent’s view that the appeal is moot. See, e.g., Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den 329 Or 447 (1999). However, youth’s request is not so limited. He also is concerned with the effect of the challenged order on his status while he remains subject to the risk that he may be returned to a correctional facility. That adverse effect on his status precludes the conclusion that youth’s appeal is moot.
To explain why, it is useful to analogize youth’s predicament to that of a convicted adult offender. In the criminal justice system, mootness by reason of release from custody generally occurs in the following circumstances: (1) in the case of a pre-guidelines indeterminate sentence, if the offender has completed his or her prison sentence and has been discharged from parole or otherwise is not subject to the risk of parole revocation, see, e.g., State v. Chase, 120 Or App *289523, 525, 851 P2d 637 (1993); (2) also in the case of an indeterminate sentence, if the offender remains subject to the possibility of parole revocation but has challenged only the date of his release from prison, not the court’s authority to imprison him in the first place or the proper date of parole expiration, see, e.g., Barnes, 159 Or App at 386; or (3) in the case of a guidelines sentence, the offender cannot be revoked because his period of post-prison supervision has expired and, thus, the sentence is discharged. Baty v. Slater, 161 Or App 653, 656-57, 984 P2d 342 (1999), adhered to on recons 164 Or App 779, 984 P2d 342, rev den 331 Or 191 (2000). In other cases, an appeal from an erroneous decision is not made moot by virtue of the offender’s release from confinement, if he or she remains subject to the type of collateral consequence that creates a cognizable practical effect. Brumnett v. PSRB, 315 Or 402, 405-06, 848 P2d 1194 (1993); Barnes, 159 Or App at 386.
Here, youth originally was placed on probation and, incidentally, placed in a treatment facility. He was then, in effect, “revoked” from probation by the juvenile court and ordered to be confined in a youth correctional facility. Now, he has been “paroled” from the young correctional facility and has been returned to a residential treatment placement. On the merits of his appeal, youth challenges the authority of the juvenile court, in the first instance, to order his confinement in a youth correctional facility. His appeal is not moot, because his status as a parolee subjects him to the possibility of a higher level of custody in a correctional facility should his parole again be revoked.
If the juvenile court’s order is upheld, youth will lose the valuable right to a court recommendation before he can be returned to a youth correctional facility. See State ex rel Juv. Dept. v. Anzaldua, 109 Or App 617, 619-20, 820 P2d 869 (1991) (holding that commitment to a youth correctional facility “will affect the child’s liberty interest as much as an adjudicatory hearing”). That type and probability of a collateral consequence is sufficient, despite youth’s present release to a treatment facility, to preserve a practical effect of the order.
*290Barnes is not to the contrary. There, the plaintiff challenged only the Board of Parole’s determination of his release date. Because he identified no other collateral consequence of the Board’s decision, his appeal became moot when he was released. 159 Or App at 386. We went beyond the plaintiffs arguments to speculate about the existence of any cognizable collateral consequence and sua sponte rejected the possibility of instructing the Board to place the plaintiff on inactive supervision status at an earlier date. Id. at 387. We reached that conclusion because we believed that the Board had discretion as to whether and when to effect a change in supervision status. Although our understanding about the existence of Board discretion may have been erroneous,1 Barnes has nothing to do with the circumstances here. As noted, youth here is not challenging merely the designation of his release date; instead, he appeals from the underlying order revoking his probation. That revocation has, despite his subsequent return to treatment, caused a status change that will follow him throughout his remaining parole period, indeed throughout the remainder of his juvenile disposition.
Nor does the fact that youth largely controls the risk that his conduct will result in further revocation proceedings furnish a basis for concluding that the juvenile court’s order has no practical effect. Again, cases involving adult offenders provide a useful analogy. For example, in State v. Meyer, 12 Or App 486, 507 P2d 824 (1973), this court held that a judgment that erroneously failed to merge certain convictions was not moot merely because the defendant remained incarcerated on a separate valid judgment of conviction. The court reasoned:
“Whether defendant stands convicted of one or two felonies can have a variety of collateral consequences for him; for example in those states that do have habitual criminal laws. As we said in State v. Farr, [8 Or App 78, 82 n 1, 492 P2d 305 (1971)]:
*291“‘* * * The error substantially affects defendant’s status by placing one felony conviction against him which should not exist.’ ” Id. at 493.
Of course youth, like the defendant in Meyer, ultimately has the choice whether to engáge in conduct that might expose him to further confinement. Nonetheless, his appeal is not moot for that reason.
Because I also agree with the majority’s conclusion that the trial court erred in denying youth’s request for a set-over of the commitment hearing, I concur.
Linder, J., joins in this concurrence.As noted in Odie v. Thompson, 174 Or App 506, 510 n 2, 26 P3d 177 (2001), the plaintiff in Barnes did not rely on ORS 144.085, and we did not discuss it. That statute may significantly limit the Board’s discretion to defer a change to inactive supervision for offenders who have been convicted of most felony offenses. See ORS 144.085(2).