State v. Castle, No. 121,380

• Decision Date: 06 November 2020
• Docket Number: No. 121,380
• Citation: 477 P.3d 266,59 Kan.App.2d 39
• Parties: STATE of Kansas, Appellee, v. Jason Floyd CASTLE, Appellant.
• Court: Kansas Court of Appeals

59 Kan.App.2d 39

477 P.3d 266

STATE of Kansas, Appellee,

v.Jason Floyd CASTLE, Appellant.

No. 121,380

Court of Appeals of Kansas.

Opinion filed November 6, 2020.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Malone, J., and Walker, S.J.

Malone, J.:

In this direct sentencing appeal, Jason Floyd Castle claims the district court erred by classifying his two prior California convictions of sex crimes as person felonies when calculating his criminal history score. The State disagrees and argues that Castle's release from prison moots this appeal. To support its mootness claim, the State has filed with this court a notice of change in custodial status under Kansas Supreme Court Rule 2.042 (2020 Kan. S. Ct. R. 18) with a written certification from the Kansas Department of Corrections (KDOC) records custodian stating Castle has been released from custody. Castle contends the State has failed to meet its burden to show he is released from custody, but he does not otherwise argue that his appeal is not moot.

The Kansas Supreme Court has acknowledged that an appellate court must sometimes make factual findings necessary to confirm a change in circumstances that a party has alleged renders an appeal moot. We hold that a written certification from the KDOC records custodian is reliable evidence that may support appellate fact-finding for the limited purpose of deciding whether an appeal is moot. Without any evidence offered by Castle challenging the accuracy of the information in the KDOC certification, we accept the written certification as reliable evidence sufficient to show that Castle is no longer in prison. Because Castle is now on postrelease supervision and he makes no claim that his appeal challenging his criminal history score has an impact on his current or future rights, we dismiss his appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 2019, pursuant to a plea agreement, Castle pled no contest to one count of possession of methamphetamine and the district court found him guilty. The presentence investigation report showed a criminal history score of B based on California convictions in 2002 for rape and oral copulation, which were scored as person felonies. Castle filed a written objection to his criminal history score, arguing that the California crimes should not be classified as person felonies because the elements of those crimes were broader than the comparable Kansas offenses. If the district court classified the California crimes as nonperson felonies, Castle's criminal history score would be F, leading to presumptive probation instead of a presumptive prison sentence.

The district court held a sentencing hearing on May 24, 2019, and Castle renewed his objection to his criminal history score. The district court overruled Castle's objection to his criminal history score but granted his motion for a downward durational departure and sentenced him to 17 months' imprisonment and 12 months' postrelease supervision. The term of Castle's sentence was the same that he would have received with a criminal history score of F, but the district court imposed the presumptive imprisonment based on Castle's criminal history score of B. Castle timely appealed his sentence.

Proceedings on appeal

This appeal was docketed on June 19, 2019. Castle filed his appellate brief on December 30, 2019, claiming the district court erred by classifying his California convictions of sex crimes as person felonies when calculating his criminal history score. Castle asked to be resentenced under a criminal history score that would allow for presumptive probation. The State filed its appellate brief on April 9, 2020, arguing that the district court did not err in sentencing Castle. The State also asserted that Castle's earliest date of release from prison was April 25, 2020, so this appeal "will likely become moot a few weeks after the State completes its brief." The State argued that "once Castle has served his entire prison sentence, he cannot obtain relief." Castle did not file a reply brief or otherwise respond to the State's mootness argument.

On April 28, 2020, the State filed a "Notice of Change in Custodial Status," alleging that according to the KDOC website, commonly called KASPER, Castle was placed on postrelease supervision on April 24, 2020, so this appeal is moot. On June 8, 2020, this court ordered Castle to show cause why the appeal should not be dismissed as moot. But on June 23, 2020, before Castle responded, this court withdrew its order because of the Kansas Supreme Court's June 19, 2020 decisions in State v. Roat , 311 Kan. 581, 466 P.3d 439 (2020), and State v. Yazell , 311 Kan. 625, 465 P.3d 1147 (2020). We will address those decisions in detail in this opinion.

Five days after the Kansas Supreme Court issued its opinions in Yazell and Roat , the State filed a second "Notice of Change in Custodial Status," arguing that its previous notice was accurate and attaching a "Certification of Time Served" the State had obtained from the KDOC that stated Castle was released on "[p]arole" on April 24, 2020. The certification included the following signed statement:

"I, the undersigned Vickie Belanger, of lawful age being duly sworn, do hereby, declare and certify that I am designated as a Public Service Administrator for the Kansas Department of Corrections and by virtue of my said office I am the legal keeper of all official records and files of the Office of the Secretary of Corrections. The foregoing is true and correct information from the records of: CASTLE, Jason F. KDOC# 122171 ."

On June 30, 2020, this court ordered Castle to show cause why this court should not dismiss his appeal as moot. In his response, Castle contended that the State had failed to meet its burden under Yazell to prove his release. Castle also pointed out that Kansas Supreme Court Rule 5.05(b) (2020 Kan. S. Ct. R. 32) addresses involuntary dismissals and states: "If dismissal depends on an issue of fact, the appellate court may remand the case to the district court with direction to make findings of fact." Thus, Castle argued, if mootness depends on his custodial status, it depends on a question of fact, so this court should remand to the district court for an evidentiary hearing.

The State replied to Castle's response, complaining that if the KDOC certification is insufficient under Yazell , the State "is unclear how it can ever avoid an evidentiary hearing on whether a case is moot." After noting that Castle's counsel did "nothing to refute the fact that [Castle] is not in prison," the State argued that remand for an evidentiary hearing on a fact that is not disputed would waste judicial resources. The State asked that this court hold any necessary evidentiary hearing itself and order Castle's appellate counsel to represent him at any such hearing.

In minute orders dated July 15, 2020, this court noted the response and reply, retained the appeal, and stated: "The panel of judges assigned to this case may revisit the issue of mootness." On August 31, 2020, the State filed a "Motion to Determine if an Evidentiary Hearing is Needed to Decide if Castle Remains in Prison." This motion informed this court that "what the State actually wants is a ruling by this Court on whether an evidentiary hearing is required that can be reviewed by the Kansas Supreme Court." The State sought clarification on whether the KDOC certification was sufficient to establish Castle's custodial status, "either in an order making the finding of the court clear or in the court's decision on this appeal."

Castle responded to the motion, arguing that an evidentiary hearing in this court would be improper because this court is not a fact-finding court. On September 9, 2020, this court issued an order stating the hearing panel would address the issue in its opinion.

IS THE APPEAL MOOT ?

Castle's substantive claim on appeal is that the district court erred by classifying his two prior California convictions of sex crimes as person felonies when calculating his criminal history score. But the State claims the appeal is moot because Castle has been released from prison. The determination of whether a case is moot is subject to unlimited review by an appellate court. Roat , 311 Kan. at 590, 466 P.3d 439.

"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." ’

....

"The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance. In an appeal solely challenging a sentence, the party asserting mootness may establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of his or her sentence. The burden then shifts to the party opposing the mootness challenge to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies. [Citations omitted.]" Roat , 311 Kan. at 584, 593, 466 P.3d 439.

To support its claim that Castle has been released from prison, the State has filed with this court a notice of change of custodial status under Supreme Court Rule 2.042 with a written certification from the KDOC records custodian stating Castle has been released from custody. Castle contends the State has failed to meet its burden to show he is released from custody. Castle argues that whether he is released from custody is a question of fact, so this court should remand to the district court for an evidentiary hearing to resolve this issue.

Our Supreme Court recently addressed the mootness issue in Yazell and Roat , so we will address those decisions in detail. While Corey...