State v. Roat

Decision Date19 June 2020
Docket Number531,113,532,Nos. 113,s. 113
Citation466 P.3d 439
Parties STATE of Kansas, Appellee, v. Tony R. ROAT, Appellant.
CourtKansas Supreme Court

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause, and Corrine E. Gunning, of the same office, was on the brief for appellant.

Lance J. Gillet,, assistant district attorney, argued the cause, and Julie A. Koon, and Boyd K. Isherwood, assistant district attorneys, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

In 2009, Tony Roat was charged with one count of making a criminal threat, charged as a severity level 9, nondrug person felony. He eventually entered into a plea agreement to that charge. On December 18, 2009, he was sentenced to a term of 11 months, with a 12-month probation period. In determining his criminal history, the district court relied on a 1984 Kansas burglary conviction that the presentence investigation report (PSI) classified as a person felony. On August 4, 2010, his probation was revoked and the prison term was imposed.

On May 17, 2011, Roat entered into a plea agreement in a separate case to one count of possession of a controlled substance, a severity level 4 drug felony. Prior to sentencing, he filed a motion to withdraw his plea, arguing that he was actually innocent because he did not possess methamphetamine. The motion was denied. On April 26, 2012, the district court sentenced him to 34 months in prison, with an effective beginning sentence date of December 16, 2011. The district court again relied on the 1984 burglary classification. In both cases, Roat did not object to his criminal history score. The district court's denial of his motion to withdraw his plea was affirmed in State v. Roat , No. 108102, 2013 WL 4046450 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1273 (2015).

On June 9, 2014, Roat filed through counsel a motion to correct an illegal sentence, alleging that the court had improperly calculated his criminal history when imposing his sentence, in light of State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), and State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015). Counsel filed a similar motion in November 2014, arguing that both sentences were illegal. The district court denied the motions.

Roat appealed to the Court of Appeals. On January 15, 2016, the State filed a notice of change of custodial status, informing the court that, as of February 28, 2015, Roat was no longer subject to Kansas Department of Corrections supervision because he had satisfied both the prison and post-release supervision provisions of his sentences in the two cases. On January 20, 2016, the Court of Appeals issued an order directing him to show cause why the appeal should not be dismissed as moot. Roat filed a response, in which he argued that his sentence could have an impact on future sentences and that he might want to pursue a legal malpractice claim against his trial attorney for not raising the Murdock and Dickey issues when he was sentenced. The Court of Appeals noted the response and dismissed his appeal. This court granted review over this dismissal.

Both before and after oral argument, the parties filed letters and responses under Rule 6.09 (2020 Kan. S. Ct. R. 39), in which they cited to cases and statutory amendments relating to the effect that possible changes in the law might have on this appeal. On July 17, 2019, this court issued an order directing the parties to file supplemental briefing on the impact that 2019 amendments to K.S.A. 22-3504 might have on the appeal. Both parties filed supplemental briefs as directed, and their positions are noted.


The sole issue in this appeal is whether Roat's appeal has become moot as a consequence of the expiration of his sentencing conditions. It is tempting to take shortcuts when addressing such a question, either by adopting a bright line rule that expiration of a sentence necessarily renders an appeal moot or by holding that any asserted legal interest in continuing appellate review suffices to preserve an appeal.

We consider either approach improper, however, both in terms of protecting the rights of parties to have their day in court and in terms of protecting courts from burdensome and fruitless litigation. Our analysis includes the following: a discussion of the basis and application of the mootness doctrine, and the consequent standard of review; an examination of the ruling by the Court of Appeals in light of that discussion; an analysis of Roat's claims as they relate to mootness; and the effect of the 2019 amendments to K.S.A. 22-3504 on Roat's appeal. We will conclude that the Court of Appeals properly dismissed the appeal as moot, despite engaging in either erroneous or insufficient analysis of the question.

The Mootness Doctrine

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). A case that is moot is properly subject to a motion to dismiss. Hanson v. Griffing , 129 Kan. 597, 283 P. 659 (1930).

A. Mootness Is a Discretionary Policy Based on Judicial Economy

Kansas has historically considered the mootness doctrine as grounded in preserving court resources and time. As early as 1899, this court stated its basis for declining to consider "mere moot questions": " ‘The time of this court ought not to be occupied by the consideration of abstract questions of law, however important and interesting they may be.’ " State, ex rel., v. Railway , 90 Kan. 20, 56 P. 755 (1899) (quoting Hurd v. Beck, 88 Kan. 11, 12, 45 P. 92 [1896] ).

In 1945, this court explicitly rejected a jurisdictional component to mootness and described mootness as a "rule of court policy," explaining that "[t]he fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it." Moore v. Smith , 160 Kan. 167, 170-71, 160 P.2d 675 (1945). This understanding of mootness was consistently maintained for about 15 years. See, e.g., State ex rel. Anderson v. Engler , 181 Kan. 1040, 1042, 317 P.2d 432 (1957).

But this court began to stray from that course in 1961, when it stated that a trial court "had no authority to enter any judgment other than a dismissal of the action" when an issue was moot. Graves v. State Bd. of Pharmacy , 188 Kan. 194, 197, 362 P.2d 66 (1961). With that holding, the Graves court implied that mootness is a question of jurisdiction.

From that point, the court bounced between the two lines of thought. In 1976, it confirmed Moore , explaining that mootness does not deprive a court of jurisdiction to decide an issue. Knowles v. State Bd. of Ed. , 219 Kan. 271, 278, 547 P.2d 699 (1976). But, in 1980, it reverted to the opinion that a "court is without constitutional authority to render advisory opinions," explaining that "[s]uch an opinion would go beyond the limits of determining an actual case or controversy and would violate the doctrine of separation of powers." Nat'l Ed. Ass'n-Topeka, Inc. v. U.S.D. 501 ., 227 Kan. 529, 531-32, 608 P.2d 920 (1980). In 1985, it cited Knowles and recognized mootness as a question of court policy. Kimberlin v. City of Topeka , 238 Kan. 299, 301, 710 P.2d 682 (1985). But in 1991, it cited Nat'l Ed. Ass'n-Topeka, Inc. and described mootness as a jurisdictional consideration. Miller v. Ins. Mgmt. Assocs., Inc. , 249 Kan. 102, 109-10, 815 P.2d 89 (1991).

In these decisions, the court has not acknowledged the tension between the two lines of thought. To the contrary, in 1991, it appeared to embrace both. It said " ‘the court is without constitutional authority to render advisory opinions[,] [but] [a]n exception to this general rule is recognized where the case involves a question of public interest even though it has become moot as to the parties involved." State ex rel. Stephan v. Johnson , 248 Kan. 286, 290-91, 807 P.2d 664 (1991). In stating that the court has no constitutional authority to decide a moot issue but then recognizing that it will decide a moot issue when a certain exception applies, the court apparently regarded mootness as both jurisdictional and prudential.

From there, this court's decisions embraced one or the other of these positions without acknowledging the existence of the other. See, e.g., Allenbrand v. Zubin Darius Contractor , 253 Kan. 315, 317, 855 P.2d 926 (1993) ; Sheila A. v. Finney , 253 Kan. 793, 796-97, 861 P.2d 120 (1993) (mootness is jurisdictional); Board of County Commissioners v. Duffy , 259 Kan. 500, 504, 912 P.2d 716 (1996) (mootness is court policy); Smith v. Martens , 279 Kan. 242, Syl. ¶ 1, 106 P.3d 28 (2005) (mootness is court policy).

In 2008, this court expanded on its position that mootness is a jurisdictional question. In State ex rel. Morrison v. Sebelius , 285 Kan. 875, 888-98, 179 P.3d 366 (2008), this court that the "separation of powers doctrine embodied in the Kansas constitutional framework" imposes a "constitutional case-or-controversy requirement" and explained that, if an issue fails to present a case or controversy, a Kansas court is without power to decide that issue. This court then set out four requirements of a case or controversy. It said, "As part of the Kansas case-or-controversy requirement, courts require: (a) parties must have standing; (b) issues cannot be moot ; (c) issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues cannot present a political question." ( Emphasis added.) 285 Kan. at 896, 179 P.3d 366.

This court has cited Sebelius a number of times for the notion that there is no case or controversy when an issue is moot. See Creecy v. Kansas Department of Revenue , 310 Kan. 454, 460, 447...

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