State v. Spears
| Citation | 495 P.3d 415 (Table) |
| Decision Date | 24 September 2021 |
| Docket Number | No. 123,030,123,030 |
| Parties | STATE of Kansas, Appellee, v. Russell Franklin SPEARS II, Appellant. |
| Court | Court of Appeals of Kansas |
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before Bruns, P.J., Gardner and Cline, JJ.
Russell Franklin Spears II appeals his sentence, challenging the accuracy of his criminal history score and the constitutionality of the Kansas Sentencing Guidelines Act (KSGA). Finding no error, we dismiss the appeal.
Spears pleaded no contest to felony fleeing or attempting to elude police and driving while suspended, crimes he committed in December 2019. Pursuant to the terms of the plea agreement, the State dismissed other charges against Spears in a separate criminal case.
A presentence investigation report (PSI) found Spears' criminal history score was A. The three person felonies which made up Spears' A score included convictions from Texas for sexually assaulting a child between 14 and 17 and for twice failing to register as a sex offender. Spears did not object to the classification of these offenses or his overall criminal history score in the district court. He did, however, move for a dispositional and durational departure from the sentencing guidelines. But the district court denied his motion and sentenced Spears according to the severity level of his felony offense and his criminal history score of A. Spears thus received a 15-month prison sentence plus 12 months' postrelease supervision.
Spears timely appealed the district court's sentence.
Spears argues on appeal that the district court relied on an erroneous criminal history score in determining his sentence. Spears argues that the PSI incorrectly classified his two out-of-state convictions for failing to register as a sex offender as person instead of nonperson felonies. He contends that those convictions did not fall within the circumstances defined in the relevant statutory provisions, as was necessary after May 2019. See K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)-(ii). According to Spears, had his registration convictions been properly classified, he would have had a criminal history score of C, rather than A. He argues that as a C, his presumptive term would have been probation rather than prison, and he would have had a maximum prison term of 13 months. Instead, he served 15 months.
During his appeal, the State filed a certification from the Kansas Department of Corrections, notifying this court that Spears finished serving the prison portion of his sentence on May 7, 2021. The State claims that Spears' criminal history issue is moot because Spears finished serving the prison portion of his sentence on May 7, 2021, and his criminal history has no impact on the postrelease portion of his sentence. But in the alternative, if the issue is not moot, the State concedes that Spears' Texas convictions for failing to register should not have been counted as person felonies, so his criminal history score should be corrected on remand.
We ordered Spears to show cause why we should not find his challenge to his criminal history score moot. Spears responded only that this issue is not moot because he needs a favorable appellate ruling to preserve his right to file a legal malpractice claim against his sentencing counsel.
Classification of prior convictions for criminal history purposes typically involves interpretation of the revised KSGA, K.S.A. 2019 Supp. 21-6801 et seq. Statutory interpretation is a question of law subject to unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018).
Mootness is a discretionary policy used to avoid unnecessary issues but allows a court to consider an issue "when judicial economy would benefit from a decision on the merits." State v. Roat , 311 Kan. 581, 587, 466 P.3d 43 (2020). It is also a legal question we review de novo. 311 Kan. at 590.
Kansas courts do not consider moot questions or render advisory opinions. We thus dismiss an issue on appeal as moot if " ‘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).
An appeal from a sentence is not necessarily rendered moot when the offender completes his or her sentence. State v. Yazell , 311 Kan. 625, Syl. ¶¶ 1, 3, 465 P.3d 1147 (2020). Rather, a "determination of mootness must ... include analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including future implications." Roat , 311 Kan. at 592-93.
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. Then, the party opposing dismissal must show why it is not warranted:
State v. Castle , 59 Kan. App. 2d 39, 47, 477 P.3d 266 (2020), rev. denied 313 Kan. –––– (March 31, 2021).
The Roat court held that the State can satisfy its burden to establish a prima facie showing of mootness by showing that the defendant has "fully completed the terms and conditions of his or her sentence." 311 Kan. at 593. On May 18, 2021, the State filed a written and sworn certification from the Kansas Department of Corrections (KDOC) record keeper, Vickie Belanger, showing the KDOC released Spears to supervision on May 7, 2021. This document is sufficient to meet the State's prima facie case. See Castle , 59 Kan. App. 2d 39, Syl. ¶ 4. The State has thus shown that Spears has fully completed the terms and conditions of his prison sentence.
The State also correctly notes that although Spears is still serving postrelease supervision, his criminal history score had no effect on the district court's determination regarding the length of that term. See K.S.A. 2019 Supp. 22-3717(d) (). So even a remand for resentencing would have no effect on his postrelease supervision—the only remaining portion of his sentence. See Castle , 59 Kan. App. 2d at 48 (); State v. Hollinshed , No. 121,706, 2020 WL 5849361, at *2-3 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. –––– (August 10, 2021). Because the State has made a prima facie case of mootness, the burden shifts to Spears to show that this issue is not moot.
Spears does not dispute the State's assertion that he finished serving the prison portion of his sentence. Nor does he rely on any exception to the mootness doctrine. Rather, Spears argues only that he needs relief from his illegal sentence to preserve his right to file a legal malpractice claim. See Garcia v. Ball , 303 Kan. 560, 573, 363 P.3d 399 (2015) ().
Spears contends that his counsel breached his duty to protect him from an illegal sentence by failing to object to his criminal history score, and that he sustained damages by serving a longer prison term than he would have with his correct criminal history score of C. Roat recognized that "the prospect of a suit for damages may create a sufficient interest in the case pending before the court to allow the case to survive assertions of mootness." 311 Kan. at 595.
311 Kan. at 596.
See Lewis v. Casey , 518 U.S. 343, 353 n.3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996) ( ). Spears thus bears the burden to show he has "a substantial interest that would be impaired by dismissal." Roat , 311 Kan. at 593.
Roat fell short of meeting that requirement. He provided few details of a factual basis for a legal malpractice claim and left it to the appellate courts to flesh out the nature of his claims against his trial counsel. 311 Kan. at 596-97. Roat thus failed to show his "interest in a malpractice suit [was] a vital, or substantial, right requiring a judgment in this appeal." 311 Kan. at 596. The Supreme Court found that Roat 311 Kan. at 599. So his claim was moot and the appeal was dismissed. 311 Kan. at 601.
Similarly in State v. Tracy , 311 Kan. 605, 466 P.3d 434 (2020), and State v. Sanders...
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