State v. Brown
| Decision Date | 10 September 2021 |
| Docket Number | 106,123 |
| Parties | State of Kansas, Appellee, v. Shaun Michael Brown, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
W Brad Sutton, assistant county attorney, Jeff Ebel, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and ISHERWOOD, JJ.
On appeal from the revocation of his probation, Shaun Michael Brown argues that his underlying sentence is possibly illegal because the State neglected to independently offer sufficient evidence to support the propriety of converting his three prior misdemeanor offenses to a single person felony for criminal history purposes. Brown also asserts that the district court abused its discretion by revoking his probation rather than allow him more time on probation to re-enter drug abuse treatment. Given that Brown has satisfied his sentence and he has failed to show the dismissal of his appeal would lead to impairment of a substantial interest, we conclude the issues raised are moot. Brown's appeal is dismissed.
Shaun Michael Brown pled guilty to attempted aggravated battery interference with a law enforcement officer, and theft for acts he committed in May 2019. The district court accepted Brown's pleas and convicted him of these crimes.
A presentence investigation (PSI) report revealed that Brown had a criminal history score of B, based on one prior person felony conviction and the conversion of three prior person misdemeanor convictions. The district court granted Brown's motion for a downward dispositional departure and placed him on probation for 12 months, with an underlying prison sentence of 14 months, followed by 12 months of postrelease supervision.
A few months after sentencing, the State alleged that Brown did not report to his probation officer or refrain from violating the law and moved to revoke his probation. Brown stipulated to the State's allegations, and the district court ordered Brown to serve a five-day jail sanction. The court permitted Brown to resume probation upon completion of his sanction but ordered an extension of his probation term by requiring that he serve a full 12 months once released.
Not long after, the State filed its second motion to revoke and alleged Brown committed a series of drug related technical violations, as well as several new crimes, which were also largely drug related offenses.
Following an evidentiary hearing, the district court determined that Brown violated his probation in the manner alleged in the State's motion to revoke and that he acquired a new conviction while on probation. Noting Brown's initial sentence resulted from a dispositional departure, the court revoked Brown's probation under K.S.A. 2018 Supp 22-3716(c)(9)(B) and ordered Brown to serve his 14-month prison sentence followed by 12 months of postrelease supervision.
Brown timely appeals, challenging the accuracy of his criminal history score and the reasonableness of the district court's decision to revoke his probation. Brown completed the prison and postrelease portions of his sentence during this appeal. Because that term is expired and he has failed to carry his burden to reveal that an actual, specific controversy remains in his case, his issues are moot and his appeal is dismissed.
For the first time on appeal, Brown argues that the State failed to prove he was represented by counsel or otherwise waived that right when he was convicted of his prior misdemeanor offenses in a municipal court. From this, Brown asserts that the State failed to prove his criminal history by a preponderance of the evidence as statutorily required and as directed by State v. Obregon, 309 Kan. 1267, Syl. ¶ 4, 444 P.3d 331 (2019), and State v. Ewing, 310 Kan. 348 Syl. ¶ 4, 446 P.3d 463 (2019). See K.S.A. 2020 Supp. 21-6814(b). Brown also contends that because the PSI report listed "Salina Municipal Court Records" and "Prior PSIs" as the source of the information provided for the convictions, it triggered an obligation for the State to attach prior PSI reports or journal entries to his current report to verify the legal effect of that information. K.S.A. 2020 Supp. 21-6813(b)(5).
The State responds by arguing that this issue is moot because Brown has finished serving his sentence. Alternatively, the State maintains that the issue should still be dismissed because Brown admitted to his criminal history at sentencing and fails to effectively show that he received an illegal sentence, citing State v. Roberts, No. 121, 682, 2020 WL 5268197, at *4 (Kan. App. 2020) (unpublished opinion), rev. granted 312 Kan. 899 (2021). Brown acknowledged Roberts in his brief but asserts that it was wrongly decided because it disregarded the rule announced in Obregon and misinterpreted the argument the appellant raised in that appeal. Brown did not respond to the State's assertion that his issues are moot.
We find the State provided reliable evidence that reflects Brown is no longer serving his sentence and, therefore, sufficiently established its mootness claim. Brown did not respond to the State's mootness assertion claim. Thus, he failed to sustain his burden to show that dismissal of his appeal would lead to impairment of a meaningful interest.
Although it alternatively argues that Brown waived his criminal history challenge by admitting to the accuracy of the score at sentencing, it is not the State's position that Brown is precluded from challenging his criminal history score for the first time on appeal. See State v. Rankin, 60 Kan.App.2d 60, Syl. ¶ 1, 489 P.3d 471 (2021) (); see also K.S.A. 2020 Supp. 21-6820(e)(3) (); State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) (); K.S.A. 2020 Supp. 22-3504(a) ("The court may correct an illegal sentence at any time while the defendant is serving such sentence.").
The Legislature recently amended K.S.A. 22-3504, the statute governing correction of illegal sentences. K.S.A. 2020 Supp. 22-3504(a) now reads: "(a) The court may correct an illegal sentence at any time while the defendant is serving such sentence." A new subsection, K.S.A. 2020 Supp. 22-3504(d), states: "The amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively." L. 2019, ch. 59, § 15. This amendment relates to statutory authority to file a motion to correct an illegal sentence. State v. Roat, 311 Kan. 581, 602, 466 P.3d 439 (2020). In this case, Brown properly raised his criminal history challenge while he was serving his sentence.
Classification of prior convictions for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq. When that scheme is at issue, it presents an issue of statutory interpretation which is a question of law, subject to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).
When a defendant challenges the accuracy of his or her criminal history score, the State bears the burden to establish that criminal history by a preponderance of the evidence. See K.S.A. 2020 Supp. 21-6814; Ewing, 310 Kan. at 359. On appeal from claims alleging insufficiency in this regard, we determine whether substantial competent evidence supports the district court's finding that the State met this burden. Obregon, 309 Kan. at 1275.
A case is moot when a court determines that "'it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.'" State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 (2012). "Generally, Kansas appellate courts do not decide moot questions or render advisory opinions." State v. Tracy, 311 Kan. 605, 607, 466 P.3d 434 (2020). Mootness is a discretionary policy used to avoid unnecessary issues but allows a court to "'determine real controversies relative to the legal rights of persons and properties which are actually involved in a particular case brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.'" Roat, 311 Kan. at 590. The applicability of the doctrine presents a question of law over which this court exercises unlimited review. 311 Kan. at 590.
The State-as the party asserting mootness-"bears the initial burden of establishing that the case is moot in the first instance." Roat, 311 Kan. at 593. After the State makes such a showing by establishing that the defendant completed the terms and conditions of their sentence "the burden shifts to the defendant to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies." 311 Kan. at 593; State v. Castle, 59 Kan.App.2d 39, 47, 477...
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