State v. Helzer

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NOT DESIGNATED FOR PUBLICATION

No. 120,208

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TROY ALLEN HELZER,
Appellant.

MEMORANDUM OPINION

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed July 5, 2019.
Appeal dismissed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

POWELL, J.: Troy Helzer appeals the district court's revocation of his probation
and imposition of his prison sentence. We granted Helzer's motion for summary
disposition pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State
filed a response not objecting to summary disposition but asking that the district court's
judgment be affirmed.

In December 2016, Helzer was sentenced in three cases. In 16CR500, for one
count of possession of methamphetamine, the district court imposed a sentence of 20
months in prison, with 12 months of postrelease supervision, but placed Helzer on
probation from that sentence for 18 months. In 16CR886, for one count of misdemeanor
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possession of stolen property, the district court imposed a sentence of 12 months in the
county jail but placed Helzer on probation from that sentence for 12 months. And in
16CR945, for one count of aggravated failure to appear, the district court imposed a
sentence of 7 months in prison, with 12 months of postrelease supervision, but placed
Helzer on probation from that sentence for 12 months.

In March 2017, the district court imposed a six-day jail sanction due to Helzer
violating his probation. In October 2017, Helzer again violated his probation, and the
district court extended his probation in all three cases for 18 months and imposed a 120-
day prison sanction.

In December 2017, the State sought to revoke Helzer's probation, alleging that he
had violated the terms and conditions of his probation by, among other things, failing to
appear in drug court, failing to report to his probation officer, and committing new
crimes. The State later alleged Helzer had absconded from supervision after Kentucky
law enforcement arrested him in May 2018 for possession of drug paraphernalia. At the
probation violation hearing conducted in September 2018, Helzer stipulated to these
violations but asked for drug treatment and a jail sanction instead of revocation. The
district court rejected Helzer's request, revoked his probation, and imposed the underlying
prison sentences.

Helzer's sole argument on appeal is that the district court abused its discretion by
revoking his probation and imposing the prison sentences. However, while the case was
pending on appeal, the State filed a custodial status notification indicating that Helzer had
completed his prison sentence as of April 12, 2019, and was currently on postrelease
supervision. We issued a show cause order directing Helzer to explain why the case
should not be dismissed as moot. Helzer did so, arguing that his appeal is not moot
because he remains on postrelease supervision.

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As a general rule, appellate courts do not decide moot questions or render advisory
opinions. Rather, our role is to "'"determine real controversies relative to the legal rights
of persons or properties which are actually involved in the particular case."'" State v.
Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). To be a real controversy, the case
must involve "definite and concrete issues . . . with 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). If it is clearly and convincingly shown that
(1) the actual controversy has ended, (2) the entry of judgment would be ineffectual for
any purpose, and (3) a judgment would have no impact on any of the rights of the parties,
then the case must be dismissed as moot. McAlister v. City of Fairway, 289 Kan. 391,
400, 212 P.3d 184 (2009).

Here, it would appear that we lack the authority to grant Helzer's request that he be
placed back on probation and given an additional sanction because Helzer has already
served his prison sentence. Probation operates as a substitute for a term of imprisonment
and therefore cannot be imposed if the underlying prison sentence has been completed.
See State v. Kinder, 307 Kan. 237, 243-44, 408 P.3d 114 (2018). Moreover, any
additional intermediate sanctions imposed cannot be longer than the time remaining on
the defendant's prison sentence. K.S.A. 2018 Supp. 22-3716(c)(7). Because Helzer has
already served his prison sentence, he cannot be subject to any short-term intermediate
sanction or have his probation reinstated. While it is true that Helzer would not be on
postrelease supervision if his probation had not been revoked, that is not enough to turn
this case into a real controversy given that the relief he seeks cannot be granted by us.

Alternatively, even if the case were not moot, Helzer's appeal would still be
without merit. Once a probation violation has been established, the decision to revoke
probation is within the sound discretion of the district court. See State v. Skolaut, 286
Kan. 219, 227, 182 P.3d 1231 (2008). Judicial discretion is abused if the action "(1) is
arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the
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view adopted by the trial court; (2) is based on an error of law . . . ; or (3) is based on an
error of fact." State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Helzer bears
the burden to show an abuse of discretion by the district court. See State v. Rojas-
Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

A district court's discretion on whether to revoke probation is limited by
intermediate sanctions as outlined in K.S.A. 2018 Supp. 22-3716. A district court is
required to impose graduated intermediate sanctions before revoking an offender's
probation. See K.S.A. 2018 Supp. 22-3716(c); State v. Huckey, 51 Kan. App. 2d 451,
454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). However, there are exceptions
which permit a district court to revoke a defendant's probation without having previously
imposed the statutorily required intermediate sanctions. One exception allows the district
court to revoke probation if the offender commits a new crime while on probation;
another is when the defendant absconds from supervision. See K.S.A. 2018 Supp. 22-
3716(c)(8)(A), (B).

Here, Helzer does not challenge the district court's authority to revoke his
probation, only that it abused its discretion by doing so. Given Helzer's repeated
probation violations, which included absconding and committing new crimes, he fails to
persuade us that no reasonable person would have agreed with the district court's decision
to revoke his probation and order that he serve his underlying sentence.

Appeal dismissed.