State of Kan. v. Hilton, s. 102,256

• Court: United States State Supreme Court of Kansas
• Citation: 295 Kan. 845,286 P.3d 871
• Docket Number: 102,257.,Nos. 102,256,s. 102,256
• Parties: STATE of Kansas, Appellee, v. Heather Page HILTON, Appellant.
• Decision Date: 19 October 2012

295 Kan. 845
286 P.3d 871

STATE of Kansas, Appellee,
v.
Heather Page HILTON, Appellant.

Nos. 102,256, 102,257.

Supreme Court of Kansas.

Oct. 19, 2012.

[286 P.3d 872]

[295 Kan. 845]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.

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 and an idle act insofar as rights involved in the action are concerned.

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. Application of the court-made mootness doctrine does not raise a jurisdictional question; the doctrine is subject to exceptions. One exception to the general rule that

[286 P.3d 873]

an appellate court will not review a moot issue is where the question is capable of repetition and is of public importance. In the context of the mootness doctrine, public importance means something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.

6. Providing guidance to the district courts on the lawful manner in which the probations in two cases with consecutive prison terms may be structured is a matter of public importance.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Thomas J. Drees, county attorney, and Steve Six, attorney general, were on the brief for appellee.

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

[295 Kan. 846]Heather Page Hilton was sentenced to serve two consecutive 12–month probation terms. During the first term, the district court revoked both probations and ordered Hilton to serve her underlying prison sentences. Hilton appealed, claiming that the second probation term had not commenced when she violated the terms of the first probation term, so that the district court erred in sending her to prison on the second case. Hilton completed serving her prison terms before the case could be heard on appeal, and the Court of Appeals dismissed the appeal as moot. Finding that the issue raised by Hilton is one capable of repetition and of public importance, we reverse and remand to the Court of Appeals to reinstate the appeal.

Factual and Procedural Overview

As an initial matter, we note that documents in the record refer to the appellant by the surnames of Hilton, Page, and Page–Hilton. Given that the caption on the petition for review filed with this court uses the name, “Heather Hilton,” we will refer to the petitioner as Hilton.

This appeal involves two separate criminal cases. In the first, which we will refer to as the 2005 case, Hilton pled nolo contendere to felony criminal damage to property and was sentenced to an underlying prison term of 10 months and ordered to serve 12 months' probation. The sentence included a rather large restitution order, which Hilton was unable to satisfy during the initial 12 months of probation, and the court extended the term of probation to April 16, 2009.

[295 Kan. 847]While on probation for the 2005 case, Hilton pled nolo contendere to attempted reckless aggravated battery, hereinafter referred to as the 2007 case. On January 12, 2009, the district court sentenced Hilton in the 2007 case to an underlying prison term of 8 months and ordered her to serve 12 months' probation. During the same hearing, the district court revoked Hilton's probation in the 2005 case but reinstated the probation for 12 months. The district court indicated that both the probation periods and the sentences were to be served consecutively, making a total probation time of 24 months with a combined underlying prison sentence of 18 months. The court did not clearly pronounce which sentence was to be served first. The “Additional Comments” section of the sentencing journal entry in the 2007 case stated:

“Probation of 12 [months] consecutive to the probation of 12 [months] in 05 CR 264, revoked and reinstated. Total of 24 [months] probation to begin today. Probation through 1/12/11 total both cases. Sentence of 8 [months] also consecutive to the sentence of 10 [months] in 05 CR 264, total 18 [months] underlying.”

On the other hand, the journal entry in the 2005 case suggested the other order of service:

“Probation 05 CR 264 consecutive to probation in 07 CR 312 (12 + 12 = 24 [months] ). Sentence 05 CR 264 consecutive to sentence 07 CR 312 (10 + 8 = 18 [months] ). Probation starts over today.”

A little over a month later, on February 20, 2009, the State moved to revoke Hilton's probation based upon her admission to drinking

[286 P.3d 874]

alcohol at a bar and being arrested for driving under the influence, both violations of her terms and conditions of probation. At the March 9, 2009, revocation hearing, Hilton's attorney argued that because the probation in the 2007 case was ordered to run consecutive to the 12 months' probation in the 2005 case, the 2007 probation would not begin until the completion of the 2005 probation. Therefore, the defense argued that the 2007 probation could not be revoked for an act that occurred before the probation even began. The district...