State v. Montgomery (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,119

STATE OF KANSAS,
Appellee,

v.

TRAVIS A. MONTGOMERY,
Appellant.


SYLLABUS BY THE COURT

1.
The interpretation and application of court precedent are legal questions, subject to
unlimited review.

2.
Generally, appellate courts in Kansas do not decide moot questions or render
advisory opinions. Yet, the court-made mootness doctrine is not a question of jurisdiction
and is, therefore, subject to court-made exceptions.

3.
An appeal will not be dismissed as moot unless it clearly and convincingly appears
that the actual controversy has ceased and the only judgment which could be entered
would be ineffectual for any purpose.

4.
A case is not moot where it may have adverse legal consequences in the future.
But the nonstatutory consequences arising from a probation revocation, which
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consequences will depend upon a judge's exercise of discretion in a future criminal
proceeding rather than upon the mere fact of the prior probation revocation, are
insufficient to perpetuate a controversy for purposes of the mootness doctrine, if the case
has otherwise ceased.

5.
The issue of the propriety of the sanction imposed by the district court for an
admitted violation of probation becomes moot upon the completion of the sanction and
the termination of State supervision, subject to the recognized exceptions to the mootness
doctrine. The sanction imposed for an admitted probation violation is not sufficiently
relevant to an assessment of amenability to probation in a future criminal proceeding so
as to negate the application of the mootness doctrine.

Review of the judgment of the Court of Appeals in 43 Kan. App. 2d 397, 225 P.3d 760 (2010).
Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed October 19, 2012. Judgment
of the Court of Appeals dismissing appeal is affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of
the same office, was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district
attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

JOHNSON, J.: Travis A. Montgomery pled nolo contendere to and was convicted
of a second drug offense that required his participation in a mandatory drug treatment
program. He was sentenced to an underlying prison term of 11 months and placed on 18
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months' probation. By his own admissions, Montgomery failed to comply with the terms
of his probation, prompting the district court to revoke his probation and order him to
serve his 11-month prison sentence. Montgomery appealed, claiming that the district
court should have imposed a different sanction for his probation violation. By the time
the matter came before the Court of Appeals, Montgomery had completed his prison
sentence and had been released from State custody and supervision. The Court of
Appeals dismissed the appeal as moot, and Montgomery petitioned for our review of that
decision. State v. Montgomery, 43 Kan. App. 2d 397, 402, 225 P.3d 760 (2010). Finding
that Montgomery has failed to refute the State's contention that the actual controversy has
ceased or to establish an exception to the general rule that precludes appellate review of
moot issues, we affirm.

FACTUAL AND PROCEDURAL OVERVIEW

On February 9, 2007, the district court sentenced Montgomery to probation
pursuant to a plea agreement. The conditions of probation included the requirements that
the defendant report as directed by his probation supervisor, that he abstain from illegal
drug use, that he participate in drug and alcohol treatment, and that he obtain legal
employment.

Some 4 months later, the State filed a motion to revoke probation, alleging that the
defendant failed to report as directed, failed to abstain from illegal drug use, failed to
participate in drug and alcohol treatment, and failed to obtain legal employment. At the
revocation hearing, the defendant stipulated to violating his probation as alleged by the
State.

The district court deferred disposition for 30 days to give Montgomery an
opportunity to demonstrate his seriousness about the probation. The dispositional hearing
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was further delayed, however, because the defendant missed several court dates and was
placed on absconder status. When the dispositional hearing was finally conducted on the
admitted probation violations, defense counsel argued that if the district court sent
Montgomery to prison, he would not get the drug treatment that he needed. Counsel
requested that the court place Montgomery in either the county jail or an in-patient
treatment facility. Pointing out that Montgomery had reported sporadically and had not
shown any attempt to get treatment, the district court rejected the defense's request and
ordered Montgomery to serve the original 11-month prison sentence.

Montgomery appealed the revocation of his probation on January 28, 2009. Prior
to the case being heard on appeal, Montgomery was released from prison on September
28, 2009. Montgomery, 43 Kan. App. 2d at 397-98. In response to the Court of Appeals'
directive for the parties to brief the issue of mootness, Montgomery argued that the issue
of his probation revocation was not moot because some judge in a future case may use
the revocation to support a finding of nonamenability to probation and thereby either
deny probation or impose an upward dispositional sentence in that future case.

The Court of Appeals acknowledged an apparent conflict among panels on
whether such future use was sufficient to refute mootness but nevertheless held that
Montgomery's case was "clearly moot" because "Montgomery has served his entire
sentence." Montgomery, 43 Kan. App. 2d at 402. This court granted Montgomery's
petition for review, in part to attempt to resolve the conflict in the Court of Appeals.

MOOTNESS OF PROBATION REVOCATION APPEAL AFTER COMPLETION OF SENTENCE

In his petition for review, Montgomery contends that the revocation of his
probation can have consequences that are similar to those caused by a criminal
conviction. Specifically, he argues that the probation revocation in this case could be
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used in the future to deny Montgomery probation or to subject him to an upward
departure sentence. See State v. Snow, 40 Kan. App. 2d 747, 757, 195 P.3d 282 (2008)
("nonamenability to probation may constitute a substantial and compelling reason for an
upward durational departure, as well as a substantial and compelling reason for a
dispositional departure"), rev. denied 289 Kan. 1285 (2009). Therefore, Montgomery
argues that the Court of Appeals erred in dismissing this appeal just because the State's
supervision had terminated in this case.

Standard of Review/Legal Maxims

Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). This
court has previously described the mootness doctrine as a court policy, which recognizes
that the role of a court is to "'determine real controversies relative to the legal rights of
persons and properties which are actually involved in the particular case properly brought
before it and to adjudicate those rights in such manner that the determination will be
operative, final, and conclusive.'" State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009)
(quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716
[1996]).

A justiciable controversy has definite and concrete issues between the parties and
"adverse legal interests that are immediate, real, and amenable to conclusive relief." State
ex rel. Morrison v. Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008). The Court of
Appeals relied on this court's previous declaration that "[a]n appeal will not be dismissed
as moot unless it clearly and convincingly appears the actual controversy has ceased and
the only judgment which could be entered would be ineffectual for any purpose and an
idle act insofar as rights involved in the action are concerned." In re M.R., 272 Kan.
1335, Syl. ¶ 2, 38 P.3d 694 (2002). Subsequently, we phrased the test for mootness as
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being whether "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." McAlister v. City of Fairway, 289 Kan. 391, 400,
212 P.3d 184 (2009).

Yet, the mootness doctrine is not a question of jurisdiction. Therefore, it is
amenable to exceptions. One commonly applied exception is the circumstance where a
moot issue "is capable of repetition and raises concerns of public importance." State v.
DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007). In
that context, public importance means "'"something more than that the individual
members of the public are interested in the decision of the appeal from motives of
curiosity or because it may bear upon their individual rights or serve as a guide for their
future conduct as individuals."'" Skillett v. Sierra, 30 Kan. App. 2d 1041, 1048, 53 P.3d
1234, rev. denied 275 Kan. 965 (2002) (quoting State ex rel. Stephan v. Johnson, 248
Kan. 286, 290, 807 P.2d 664 [1991]).

A court policy necessarily comes about through prior opinions of the court, i.e.,
the mootness doctrine developed through court precedent. Accordingly, our review is
unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) ("To the extent our
decision involves . . . the interpretation and application of . . . court precedent, we are
resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks
Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].").

Analysis

Montgomery has fully satisfied the sanction imposed for his probation violation,
which was serving the entire underlying prison term of his original sentence.
Montgomery's debt to society has been paid in full, even if his claim that he was
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overcharged is correct. Likewise, the State of Kansas has no authority to punish or
supervise Montgomery any further in this case. Accordingly, the Court of Appeals
correctly stated that "[a]ny action this court might take in regards to his probation
revocation would be an idle act insofar as Montgomery's rights in this action are
concerned." Montgomery, 43 Kan. App. 2d at 402.

But citing to State v. Flanagan, 19 Kan. App. 2d 528, 529, 873 P.2d 195 (1994),
Montgomery contends that his case is not moot because it "may have adverse legal
consequences in the years to come." Flanagan was a challenge to a contempt conviction
where the defendant was sentenced to time served. Challenging the efficacy of a
conviction is simply a different proposition than is presented here. The possible collateral
consequences of a conviction are "too obvious to declare [an] appeal [of the conviction]
moot simply because defendant cannot be subjected to additional jail time." 19 Kan. App.
2d at 530. The impact of a conviction is tangible and immediate.

For instance, a conviction is immediately added to the defendant's criminal history
score and will thereafter accompany the defendant as a fact that speaks for itself. The
criminal history score will be a fact that subsequent courts must use to calculate future
sentences; a district court cannot exercise its discretion to disregard a prior conviction.
Cf. K.S.A. 21-4713(f) (prosecutor is not permitted to "make any agreement to exclude
any prior conviction from the criminal history of the defendant"). Prior convictions are
much more than merely factors to consider when assessing a defendant's likelihood to
perform on probation.

But Montgomery can also point to State v. White, 41 Kan. App. 2d 943, 206 P.3d
553 (2009), to support his claim that a probation revocation can have future adverse
consequences that negate mootness. The White panel opined:

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"Arguably, because the probation revocation will remain on his record, it could affect his
rights in the long run. For example, if he should become eligible for probation at anytime
in the future, the trial court could refuse probation based on a finding that this revocation
showed [the defendant] was not amenable to probation." 41 Kan. App. 2d at 946.

The State counters with two bases for us to reject the holding in White. First, the
State contends that White is factually distinguishable because the defendant in that case
was still serving a concurrent prison term at the time the Court of Appeals considered
mootness. We find that argument to be unpersuasive because the White panel did not rely
on or utilize the alleged distinguishing fact to reach its decision. Rather, the opinion
clearly relied on the potential impact of the current revocation on an assessment of
amenability to probation in future cases.

Secondly, the State points us to the decision of another Court of Appeals panel in
State v. Brown, No. 95,985, 2008 WL 2422761, at *2 (Kan. App. 2008) (unpublished
opinion), rev. denied 287 Kan. 766 (2008), for the proposition that this question of
mootness has already been resolved by the United States Supreme Court in Spencer v.
Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998). See also Lee v. State, No.
106,274, 2012 WL 2476991, at *2 (Kan. App. 2012) (unpublished opinion) (potential use
of probation revocation to argue in a future case that the defendant is not amenable to
probation is "too speculative to refute a finding of mootness"). Pointedly, the State does
not discuss that Spencer was a federal habeas corpus proceeding or that mootness in
federal jurisprudence emanates from the case or controversy language in Article III, § 2
of the Constitution of the United States. In other words, the United States Supreme
Court's rulings on the issue of mootness are not binding authority on this court.

Nevertheless, we can consider Spencer for whatever persuasive effect it might
have on our rationale. Spencer distinguished between two types of collateral
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consequences that may be present after the expiration of a sentence: (1) concrete or
continuing consequences that are "imminently threatened, or that [are] imposed as a
matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or
to engage in certain businesses)," 523 U.S. at 8; or (2) hypothetical consequences that are
speculative or mere possibilities, such as the potential use of a parole revocation as a
factor to deny parole in a future case. 523 U.S. at 13. The Court pointed out that
hypothetical or speculative consequences, such as the possibility that a parole revocation
would affect a sentence imposed in a future criminal proceeding, are "nonstatutory
consequences," dependent upon the sentencing judge's discretion, rather than the mere
presence of a prior parole revocation. 523 U.S. at 13. Moreover, that future decision
might well be more directly influenced by "'the underlying conduct that formed the basis
for the parole violation.'" 523 U.S. at 13.

Spencer's observation—that the fact of a parole revocation may not be as
influential or consequential in a subsequent criminal proceeding as the underlying
conduct giving rise to the revocation—is particularly cogent in this case. Montgomery
contends that, if the district court's order of imprisonment is allowed to stand, a future
court will use that fact to find that he is not amenable to probation. But the reason a prior
probation revocation is relevant to a defendant's future amenability to probation is that
revocation necessarily follows a probation violation, and a probation violation reveals
that the probationer was unable or unwilling to conform to and comply with the terms
and conditions of probation. Here, Montgomery admitted violating his probation in a
number of ways, effectively establishing that he was not amenable to his current
probation. Regardless of the sanction that the district court imposed for those probation
violations, its finding that probation was violated was sufficient to demonstrate that
Montgomery cannot always follow the rules and may not be amenable to probation in the
future.

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In this appeal, Montgomery complains that, after he admitted to breaking the rules
of probation, the district court did not grant his request to go to drug treatment or the
county jail, instead of prison. In other words, Montgomery does not challenge the fact
that he violated the terms and conditions of his probation; he merely complains about the
resulting punishment. We cannot change the sanction imposed for the probation violation
because the prison term that Montgomery was ordered to serve has been completed.
Likewise, as noted above, any answer that we might give on the appropriateness of the
sanction imposed will not impact any future assessment of his amenability to probation.
Therefore, this appeal presents a request for an advisory opinion on a moot issue.
Moreover, Montgomery has not shown, nor do we discern, any reason to invoke an
exception to the rule that appellate courts will not entertain moot issues. Accordingly, we
affirm the Court of Appeals' dismissal for mootness.

Affirmed.