State v. Yazell
| Decision Date | 19 June 2020 |
| Docket Number | No. 116,761,116,761 |
| Parties | STATE of Kansas, Appellee, v. Corey Leroy YAZELL, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen A. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
Corey Leroy Yazell appealed from the revocation of his probation following an out-of-state arrest. The Court of Appeals issued an order dismissing the appeal as moot. We reverse and remand to the Court of Appeals.
On January 4, 2016, Yazell entered into a plea agreement, pleading guilty to one count of possession of methamphetamine and one count of driving while suspended. On March 4, 2016, the district court sentenced Yazell to 14 months of prison for the methamphetamine charge and a concurrent 90 days for the driving charge. The court then suspended the imposition of that sentence and placed Yazell on 12 months of probation.
On September 12, 2016, the State filed a motion to revoke Yazell's probation. The motion alleged several violations of his probation conditions. It alleged he was arrested in Missouri on July 7, 2016, on drug charges, he failed to report to his probation officer on multiple occasions, he was associating with individuals with criminal histories, and he failed to satisfy outstanding warrants in Missouri.
On October 6, 2016, the district court conducted a hearing on the State's motion. Over Yazell's hearsay objections, Yazell's compact officer, who was the Kansas officer entrusted with managing his case while Yazell continued to live in Missouri, testified to information she had received in interstate compact reports from Missouri. The court elected to impose the original sentence of 14 months of prison for the methamphetamine charge and a concurrent 90 days for the driving charge, with 12 months of postrelease supervision. Yazell took a timely appeal to the Court of Appeals.
On May 2, 2017, Yazell filed a brief with the Court of Appeals. He raised one argument: that the district court improperly relied on hearsay testimony to support probation revocation, and the consequence was inconsistent with due process requirements. On September 1, 2017, the State filed its responsive brief, in which it argued that Yazell's due process rights had been satisfied.
On December 13, 2017, the Court of Appeals issued an order sua sponte directing the parties to show cause why the appeal should not be dismissed as moot due to Yazell's release from custody. Answering the order to show cause, the State relied on the website maintained by the Kansas Department of Corrections—Kansas Adult Supervised Population Electronic Repository (KASPER). The State averred: The response continued: "The State confirmed as much with a phone call to Cherryl Hensley—Senior Administrative Specialist with the Kansas Department of Corrections Sentence Computation Unit—on December 19, 2017."
Yazell responded by asserting that the State had not proved he was no longer affected by revocation. He pointed out that, by its own conditions, KASPER is not to be relied on for accuracy. He also questioned the legal reliability of Cherryl Hensley and pointed out that it was an unsworn ex parte communication not subject to cross-examination. Yazell neither confirmed nor denied that he was still in custody. He, instead, suggested that a remand for a hearing was the appropriate procedure.
The Court of Appeals noted the responses and dismissed the appeal without revealing any analysis. It simply informed the parties: "Response to Show Cause considered by the Court and case dismissed as moot." We granted Yazell's petition for review.
Yazell argues that the Court of Appeals erred when it relied on a printout from KASPER and the State's factual assertion about a phone call with Hensley to find that Yazell had completed his sentence. Yazell also argues that, even if this was not an error and he has completed his sentence, his case is not moot because a finding that he violated probation could be used as evidence that he is not amenable to probation in future cases.
We turn to his first allegation of error. This issue contemplates the legal effect of an evidentiary submission to the appellate courts. The standard of review is de novo because there is no district court factual finding. See In re Burnette , 73 Kan. 609, Syl. ¶ 5, 85 P. 575 (1906).
Generally, Kansas appellate courts do not make factual findings. This task is reserved for district courts, where evidence is offered and tested. See State v. Thomas , 288 Kan. 157, 161, 199 P.3d 1265 (2009) (). If an appellate court reviews the district court's factual findings, it generally does so only to ensure that substantial competent evidence supported those findings; it does not reweigh or reassess the evidence. State v. Jenkins , 311 Kan. 39, 45, 455 P.3d 779 (2020) (); State v. Galloway , 311 Kan. ––––, 459 P.3d 195, 202 (2020) ().
But there are times when an appellate court is called upon to make a finding of its own. One of those times occurs in this appeal—where a party alleges that a change in circumstance since the district court proceedings has rendered an action moot. Before the appellate court may consider mootness, it must confirm the change in circumstance.
Appellate fact-finding is simple when both parties agree that a change has taken place, or the change is so ubiquitous the court may take judicial notice of its happening. K.S.A. 60-409(a) (). When the parties do not agree that a change has occurred, appellate fact-finding becomes more difficult. The appellate forum is not conducive to the taking or testing of evidence. For this reason, appellate courts must carefully scrutinize the reliability of evidence before making the rare finding of fact.
The Court of Appeals order dismissing Yazell's appeal was brief and vague. For this reason, we do not know on what the panel relied on to conclude that Yazell's case was moot. Yazell insists the panel looked to the KASPER printout and the State's description of its alleged phone call confirming the KASPER information to find that he had been released from custody. To the extent this is what occurred, it was an error.
Kansas appellate courts have taken inconsistent positions on the reliability of KASPER and similar sources from off the record.
Without explaining why KASPER is reliable, several Court of Appeals decisions have cited to it as a proper source of information about inmates, including such details as time of incarceration and disciplinary issues.
In State v. Upham , No. 97961, 2008 WL 1847703 (Kan. App. 2008) (unpublished opinion), the Court of Appeals confronted a question essentially the same as in the present appeal. The State presented printouts from KASPER as well as a form from the Department of Corrections showing the defendant was on supervised parole. The defendant neither confirmed nor denied his noncustodial status. Without analyzing the reliability of KASPER as a source, the Court of Appeals dismissed the appeal as moot. 2008 WL 1847703, at *2.
In State v. Flores , No. 100496, 2009 WL 1766258 (Kan. App. 2009) (unpublished opinion), the Court of Appeals reached factual conclusions about the defendant's jail time credit based on KASPER documents furnished by defense counsel. The court did not question or analyze the reliability of KASPER records. 2009 WL 1766258, at *1.
In State v. Harbacek , No. 111687, 2015 WL 3632321 (Kan. App. 2015) (unpublished opinion), the Court of Appeals relied heavily on a KASPER printout in examining whether the defendant was entitled to jail time credit. The appellate court eventually found the evidence insufficient to answer the question before it and remanded to the district court for a factual hearing. 2015 WL 3632321, at *6.
Again, in State v. Hastings , No. 112222, 2016 WL 852857 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1324 (2017), the State submitted a KASPER printout purporting to show that the defendant was no longer under sentence as the appeal proceeded. The Court of Appeals considered it "important" that the defendant made no effort to rebut the State's assertion of noncustodial status and dismissed the sentencing portion of the appeal as moot. 2016 WL 852857, at *6.
But both the Court of Appeals and this court have also rejected turning to sources outside official records and the evidence introduced at trial.
In In re K.B.J. , No. 102922, 2010 WL 348294, at *2 (Kan. App.) (unpublished opinion), rev. denied 290 Kan. 1094 (2010), the Court of Appeals held, in a parental rights proceeding, that the district court erred in taking judicial notice of information the court services officer obtained from KASPER. The court wrote:
...
To continue reading
Request your trial
-
Macomber v. State
...do not make factual findings. This task is reserved for district courts, where evidence is offered and tested." State v. Yazell , 311 Kan. 625, 627, 465 P.3d 1147 (2020). When the trial court denied Macomber's K.S.A. 60-1507 motion in early 2019, it could not have cited Carter because Carte......
-
State v. Spears
...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......
-
State v. Morley
...generally does so only to ensure that substantial competent evidence supported those findings." (Emphasis added.) State v. Yazell , 311 Kan. 625, 627, 465 P.3d 1147 (2020). Moving to step three, the panel correctly held that the accepting of responsibility factor by itself does not reasonab......
-
State v. Foster
...of mootness. Our Supreme Court discussed the standard for sufficiently reliable evidence to show mootness in State v. Yazell , 311 Kan. 625, 465 P.3d 1147 (2020) (Yazell I ).In Yazell I , the State claimed that Corey Leroy Yazell's appeal was moot because he was released from custody, relyi......