City of Ottawa v. Lester
Decision Date | 27 November 1991 |
Docket Number | No. 66614,66614 |
Citation | 822 P.2d 72,16 Kan.App.2d 244 |
Parties | CITY OF OTTAWA, Appellee, v. Steven L. LESTER, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
1. An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.
2. Under K.S.A. 22-3210, a trial court is required to inform the defendant of the direct penal consequences of a guilty plea before accepting the guilty plea. The trial court is not required to inform a defendant of the collateral consequences of a guilty plea.
3. The tests for whether consequences are collateral are whether the consequences imposed are a definite, immediate, and largely automatic result of the guilty plea and whether the consequences require application of a legal provision extraneous to the definition of the criminal offense and the provisions for sentencing.
4. The suspension of driving privileges pursuant to K.S.A.1990 Supp. 8-1567 upon a conviction for driving under the influence is a collateral consequence of a guilty plea.
William K. Rork, Topeka, for appellant.
John W. Cole, Anderson, Byrd, Richeson & Flaherty, Ottawa, for appellee.
Before ELLIOTT, P.J., GERNON, J., and PHILIP L. SIEVE, District Judge, Assigned.
Steven L. Lester appeals from the district court's ruling affirming the municipal court's denial of his motion to withdraw his guilty plea. The basis of Lester's motion was his claim that the municipal court misinformed him concerning the consequences of entering a plea. We affirm.
We must first consider whether Lester's appeal should be dismissed as moot.
Our appellate decisions have addressed the doctrine of mootness on many occasions. " " Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985) (quoting City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 [1981].
Gonzales v. State, 11 Kan.App.2d 70, 70-71, 713 P.2d 489 (1986).
However, the appellate decisions have also cautioned: "An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned." Reeves v. Board of Johnson County Comm'rs, 226 Kan. 397, 405, 602 P.2d 93 (1979); Puritan-Bennett Corp. v. Richter, 8 Kan.App.2d 311, 315, 657 P.2d 589, rev. denied 233 Kan. 1092 (1983).
Here, if Lester should prevail and subsequently be found not guilty, he would be restored to the status of a first-time offender. This change in and of itself could alter the potential penalties given a subsequent prosecution and his liability under a habitual traffic offender proceeding. It can also be argued that his insurance availability or price could be affected by these proceedings. Given these considerations, we conclude that the appeal is not moot.
So far as the merits are concerned, Lester contends that he should have been permitted to withdraw his guilty plea because he was not informed that his driving privileges would be suspended. Lester maintains this violates K.S.A. 22-3210.
This court recently concluded:
Cox v. State, 16 Kan.App.2d 128, Syl. p 1, 819 P.2d 1241 (1991).
In Cox, the defendant argued his guilty plea should be set aside because he was not informed of the plea's effect on certain "unspecified civil rights." 16 Kan.App.2d 128, 819 P.2d 1241. This court rejected the defendant's contention, concluding that:
16 Kan.App.2d at 130-31, 819 P.2d 1241.
The federal courts have consistently held that the trial court is not required to inform a defendant of the collateral consequences of a guilty plea. See, e.g., United States v. United States Currency, the amount of $228,536.00, 895 F.2d 908, 914-15 (2d Cir.) (civil forfeiture), cert. denied 495 U.S. 958, 110 S.Ct. 2564, 109 L.Ed.2d 747 (1990); United States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir.1989) ( ); Holmes v. United States, 876 F.2d 1545, 1549 (11th Cir.1989) (ineligibility for parole); United States v. Woods, 870 F.2d 285, 288 (5th Cir.1989) ( ); United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir.) (possible exposure to federal prosecution), cert. denied 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988) (deportation); United States v. Persico, 774 F.2d 30, 33 (2nd Cir.1985) ( ); United States v. Suter, 755 F.2d 523, 525 (7th Cir.) (treble damages in related civil action), cert. denied 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); George v. Black, 732 F.2d 108, 111 (8th Cir.1984) (civil commitment proceedings); United States v. King, 618 F.2d 550, 552 (9th Cir.1980) ( ); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977) (revocation of parole); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.) (deportation), cert. denied 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Redwine v. Zuckert, 317 F.2d 336, 338 (D.C.Cir.1963) ( ).
Various state courts also have concluded that a trial court is not required to inform a defendant of the collateral consequences of a guilty plea. See, e.g., Minnifield v. State, 439 So.2d 190, 192 (Ala.Crim.App.1983) ( ); State v. Hatch, 156 Ariz. 597, 599, 754 P.2d 324 (Ariz.App.1988) ( ); People v. McKnight, 200 Colo. 486, 498, 617 P.2d 1178 (1980) ( ); Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990) ( ); Blackshear v. State, 455 So.2d 555, 556 (Fla.Dist.App.1984) ( ); Davis v. State, 151 Ga.App. 736, 737, 261 S.E.2d 468 (1979) ( ); State v. Jackson, 362 So.2d 1082, 1088 (La.1978) ( ); Moore v. State, 72 Md.App. 524, 526-27, 531 A.2d 1026 (1987) ( ); State v. Fournier, 118 N.H. 230, 231, 385 A.2d 223 (1978) ( ); State v. Heitzman, 209 N.J.Super. 617, 622, 508 A.2d 1161 (1986), aff'd 107 N.J. 603, 527 A.2d 439 (1987) ( ); Griffin v. Martin, 278 S.C. 620, 621, 300 S.E.2d 482 (1983) (parole eligibility); State v. Barton, 93 Wash.2d 301, 305, 609 P.2d 1353 (1980) (habitual criminal charge); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856 (Wis.App.1987) (deportation); Carson v. State, 755 P.2d 242, 244 (Wyo.1988) (deportation).
In State v. Elliott, 133 N.H. 190, 193, 574 A.2d 1378 (1990), the New Hampshire Supreme Court held that exposure to habitual traffic offender proceedings was a collateral consequence of a guilty plea to driving under the influence. In Elliott, Justice Souter reasoned:
"The possible significance of a guilty verdict for purposes of the habitual offender act is a classic example of a conviction's consequence that is collateral [...
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