State of Kan. v. Montgomery, 102,119.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by JOHNSON
Citation286 P.3d 866,295 Kan. 837
PartiesSTATE of Kansas, Appellee, v. Travis A. MONTGOMERY, Appellant.
Docket NumberNo. 102,119.,102,119.
Decision Date19 October 2012

295 Kan. 837
286 P.3d 866

STATE of Kansas, Appellee,
Travis A. MONTGOMERY, Appellant.

No. 102,119.

Supreme Court of Kansas.

Oct. 19, 2012.

[286 P.3d 867]

[295 Kan. 837]Syllabus by the Court

1. The interpretation and application of court precedent are legal questions, subject to unlimited review.

2. Generally, appellate courts in Kansas do not decide moot questions or render advisory opinions. Yet, the court-made mootness doctrine is not a question of jurisdiction and is, therefore, subject to court-made exceptions.

3. An appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose.

4. A case is not moot where it may have adverse legal consequences in the future. But the nonstatutory consequences arising from a probation revocation, which consequences will depend upon a judge's exercise of discretion in a future criminal proceeding rather than upon the mere fact of the prior probation revocation, are insufficient to perpetuate a controversy for purposes of the mootness doctrine, if the case has otherwise ceased.

5. The issue of the propriety of the sanction imposed by the district court for an admitted violation of probation becomes moot upon the completion of the sanction and the termination of State supervision, subject to the recognized exceptions to the mootness doctrine. The sanction imposed for an admitted probation violation is not sufficiently relevant to an assessment of amenability to probation in a future criminal proceeding so as to negate the application of the mootness doctrine.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

[295 Kan. 838]Travis A. Montgomery pled nolo contendere to and was convicted of a second drug offense that required his participation in a mandatory drug treatment program. He was sentenced to an underlying prison term of 11 months and placed on 18 months' probation. By his own admissions, Montgomery failed to comply with the terms of his probation, prompting the district court to revoke his probation and order him to serve his 11–

[286 P.3d 868]

month prison sentence. Montgomery appealed, claiming that the district court should have imposed a different sanction for his probation violation. By the time the matter came before the Court of Appeals, Montgomery had completed his prison sentence and had been released from State custody and supervision. The Court of Appeals dismissed the appeal as moot, and Montgomery petitioned for our review of that decision. State v. Montgomery, 43 Kan.App.2d 397, 402, 225 P.3d 760 (2010). Finding that Montgomery has failed to refute the State's contention that the actual controversy has ceased or to establish an exception to the general rule that precludes appellate review of moot issues, we affirm.

Factual and Procedural Overview

On February 9, 2007, the district court sentenced Montgomery to probation pursuant to a plea agreement. The conditions of probation included the requirements that the defendant report as directed by his probation supervisor, that he abstain from illegal drug use, that he participate in drug and alcohol treatment, and that he obtain legal employment.

Some 4 months later, the State filed a motion to revoke probation, alleging that the defendant failed to report as directed, failed to abstain from illegal drug use, failed to participate in drug and alcohol treatment, and failed to obtain legal employment. At the revocation hearing, the defendant stipulated to violating his probation as alleged by the State.

[295 Kan. 839]The district court deferred disposition for 30 days to give Montgomery an opportunity to demonstrate his seriousness about the probation. The dispositional hearing was further delayed, however, because the defendant missed several court dates and was placed on absconder status. When the dispositional hearing was finally conducted on the admitted probation violations, defense counsel argued that if the district court sent Montgomery to prison, he would not get the drug treatment that he needed. Counsel requested that the court place Montgomery in either the county jail or an in-patient treatment facility. Pointing out that Montgomery had reported sporadically and had not shown any attempt to get treatment, the district court rejected the defense's request and ordered Montgomery to serve the original 11–month prison sentence.

Montgomery appealed the revocation of his probation on January 28, 2009. Prior to the case being heard on appeal, Montgomery was released from prison on September 28, 2009. Montgomery, 43 Kan.App.2d at 397–98, 225 P.3d 760. In response to the Court of Appeals' directive for the parties to brief the issue of mootness, Montgomery argued that the issue of his probation revocation was not moot because some judge in a future case may use the revocation to support a finding of nonamenability to probation and thereby either deny probation or impose an upward dispositional sentence in that future case.

The Court of Appeals acknowledged an apparent conflict among panels on whether such future use was sufficient to refute mootness but nevertheless held that Montgomery's case was “clearly moot” because “Montgomery has served his entire sentence.” Montgomery, 43 Kan.App.2d at 402, 225 P.3d 760. This court granted Montgomery's petition for review, in part to attempt to resolve the conflict in the Court of Appeals.

Mootness of Probation Revocation Appeal After Completion of Sentence

In his petition for review, Montgomery contends that the revocation of his probation can have consequences that are similar to those caused by a criminal conviction. Specifically, he argues that [295 Kan. 840]the probation revocation in this case could be used in the future to deny Montgomery probation or to subject him to an upward departure sentence. See State v. Snow, 40 Kan.App.2d 747, 757, 195 P.3d 282 (2008) (“nonamenability to probation may constitute a substantial and compelling reason for an upward durational departure, as well as a substantial and compelling reason for a dispositional departure”), rev. denied 289 Kan. 1285 (2009). Therefore,...

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