State v. Ludes

1

NOT DESIGNATED FOR PUBLICATION

Nos. 114,287
114,288

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTINA M. LUDES,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed October 14, 2016.
Appeal dismissed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., MCANANY and GARDNER, JJ.

Per Curiam: This appeal is from two consolidated cases that were the subject of
one plea agreement. Christina Ludes raises three issues relating to her sentence: that the
State breached the plea agreement by statements made at her sentencing and probation
revocation hearing; that the district court abused its discretion in revoking her probation;
and that the district court violated her constitutional rights by using her prior convictions
in calculating her criminal history score. Without reaching the merits of these arguments,
we find the appeal moot.

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Factual and procedural background

In her 2013 case, Ludes pleaded guilty to felony theft and was sentenced to 12
months' probation with an underlying 10-month prison sentence. The State twice moved
to revoke her probation due to several violations, including new criminal charges. Ludes
stipulated to having violated her probation.

In her 2014 case, Ludes was charged with another felony theft and agreed to plead
no contest in exchange for the State's promise to recommend probation in that case and to
recommend reinstatement to probation after a 120-day dunk in prison in the 2013 case. In
the 2014 case, probation was the presumptive sentence based on her criminal history. But
Ludes' commission of this property crime while she was on felony probation, and her
status as a repeat offender based on the requisite prior convictions of specific property
crimes, moved her to presumptive prison.

The plea agreement stated: "The State agrees to recommend probation in [the
2014] case. [In the 2013 case], the State will agree to reinstatement on probation after
[Ludes serves] a 120-day DOC sanction." Ludes' counsel filed a motion for a downward
dispositional departure to probation and argued that substantial and compelling reasons
existed for her to be placed on probation. The State did not object to the motion.

At sentencing, the court heard from Ludes, her counsel, and her court services
officer (CSO). Ludes' counsel argued that probation was appropriate for a variety of
reasons: She would not be a safety risk in the community, treatment in the community
was sufficient, Ludes could be "properly and adequately supervised" in the community,
her offenses were nonperson and nonviolent, Ludes was repentant, and she would submit
to any kind of recommended treatment.

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However, the CSO disagreed. He itemized Ludes' continued commission of
similar crimes, her flagrant attitude toward court personnel, and her poor performance on
probation in the 2013 case and prior cases, including the fact that she had not reported for
the last year. He concluded Ludes was "not amenable to probation" and asked the court to
remand her to serve her underlying sentences on both cases.

The court then heard from the State. Regarding sentencing for the 2014 case, it
stated: "As the plea tender contemplated, the State would not object to placement on
probation . . . . That being done and said, I would just note for the record that the
defendant does have a relatively lengthy criminal history with similar type crimes."
(Emphasis added.) The court twice asked the State if it was recommending probation, and
the State twice replied it was not objecting to probation.

Regarding the probation revocation disposition for the 2013 case, the State told the
district court, "the plea tender did contemplate that the defendant would serve the 120-day
prison dunk, and the State would request that, at a minimum, the Court require that of her
before reinstating her on probation." (Emphasis added.).

The State concedes the phrase—"at a minimum"— was stated in error. The
italicized statements form the basis for Ludes' argument that the State breached the plea
agreement. Ludes raised no objection to the State's comments at the time of sentencing.

The district court's statements at the time of sentencing reflect its understanding
that the State was "requesting" that Ludes be placed on probation pursuant to the terms of
the plea agreement.

"Well, Ms. Ludes, the Court has reviewed the motion for downward/dispositional
departure, and the Court has considered the arguments made in favor of your motion,
including that you accepted responsibility for your behavior. And the Court understands
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that the State is also requesting you be placed on probation pursuant to the terms of the
plea agreement.

Nonetheless, it denied probation based on the defendant's failure to report and her
extensive criminal history, stating:

"And the Court considered the other arguments made by your attorney. But I simply do
not find in your case that there are substantial and compelling reasons for the Court to
place you on probation in this case. Unfortunately, if you can't—if you're not bothering to
report in to your probation officer when you already were on probation, I don't see why
you should—say now that you want to be on probation, when, clearly, you didn't want to
be on probation if you weren't even bothering to report.
"And I'm looking at your criminal history. And you have 27 convictions, if I
counted correctly. You have seven previous convictions for theft. You have two previous
convictions for attempted theft, along with another—a number of other convictions. . . .
"And if you're not bothering to report in for probation, I just do not find in this
case that there are substantial and compelling reasons for this Court to place you on
probation."

Accordingly, in both cases, the district court rejected the sentences recommended
in the plea agreement. In the 2013 case, the district court revoked Ludes' probation and
reinstated the underlying sentence of 10 months in prison. In the 2014 case, the court
gave the standard Guidelines sentence of 12 months in prison and 12 months of
postrelease supervision and ordered the sentence to run consecutive to the sentence in the
2013 case. After imposing the sentence, the court emphasized Ludes' history in stating:

"And at some point, Ms. Ludes, you will learn that you've got to change your behavior
and stop your actions. . . . Well you haven't gotten it up to this point, and you're not going to
probably get it unless you learn that you're going to be serving your sentences."

Ludes timely appeals, contending the State breached the plea agreement, that the
district court abused its discretion in revoking her probation, and that the district court
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violated her constitutional rights by using her prior convictions in calculating her criminal
history score.

Mootness

Before reaching Ludes' claims of error, we address the preliminary issue of
mootness. After the briefs were filed but before oral argument was heard, we ordered
Ludes to show cause why this case should not be dismissed as moot because Ludes
challenges only her sentence and it appeared from the record that Ludes had been
released from imprisonment. Ludes responded, acknowledging that she had completed
her incarceration and was serving postrelease supervision.

Ludes contends her appeal is not moot, however, for two related reasons: (1) she
is still on postrelease supervision, so she has not completed her sentence in its entirety;
and (2) she seeks specific performance of the plea agreement at a new
sentencing/probation revocation disposition hearing, in which relief could still be granted.
Ludes maintained the same position at oral argument.

Our court does not view mootness as jurisdictional, but as a court policy to be
enforced.

"Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). This is
a court policy recognizing the judiciary's role 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.' Board of Johnson County
Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996). The mootness test has been
described as a determination whether '"it is clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
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any purpose, and it would not impact any of the parties' rights. [Citation omitted.]"'
Montgomery, 295 Kan. at 840-41." State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528
(2014).

Although several exceptions to the mootness doctrine have been established, Ludes does
not rely on any of them. See State v. Montgomery, 295 Kan. 837, Syl. ¶¶ 2, 4, 286 P.3d
866 (2012) (explaining the concrete collateral consequences exception and the exception
for matters capable of repetition and raises concerns of public importance; dismissing
appeal as moot because Montgomery had completed his sentence, thus the State had no
authority to punish or supervise him).

We do not agree with Ludes that the mere fact of being on postrelease supervision
necessarily saves Ludes' appeal from being moot. Our cases demonstrate this is not so.
See State v. Nicolaides, No. 114,239, 2016 WL 3856612, at *3 (Kan. App. 2016)
(unpublished opinion) (finding defendant's probation revocation appeal moot where
defendant had been released from imprisonment but was still on postrelease supervision);
State v. Her, No. 112,815, 2016 WL 3365755, at *4. (Kan. App. 2016) (unpublished
opinion) (finding defendant's challenge to his criminal history moot because defendant
had served the prison portion of his sentence and resentencing could not affect his
postrelease supervision); Dunn v. State, No. 104,853, 2011 WL 2206640, at * 1 (Kan.
App. 2011) (unpublished opinion) (finding Dunn's claim that the State breached the plea
agreement moot because Dunn had completed the prison aspect of his sentence although
he was still on postrelease supervision).

Ludes does not contend that her term of postrelease supervision could be
abbreviated if she prevails on this appeal. Because she received a 12-month period of
postrelease supervision, which is the statutory minimum, see K.S.A. 2015 Supp 22-
3717(d)(1)(C), remand and resentencing could not shorten that period. See United States
v. Williams, 475 F.3d 468, 479 (2d Cir. 2007) (finding that defendant's appeal was
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rendered moot upon his release from prison because even if the case were remanded,
there was no possibility that the district court could impose a reduced term of supervised
release; defendant had initially been sentenced to the minimum period of supervised
release permitted by statute and district court could not impose lesser term).

Ludes does not tell us why being on postrelease supervision saves her appeal from
mootness. The thrust of her argument is that she should be resentenced to probation, yet
she does not show how being on probation is meaningfully different from or preferable to
being on postrelease supervision. She does not show that the terms and conditions of one
is better than another. Nor does she show that if she were on probation and probation
were revoked, the result would be more favorable to her. If Ludes were to receive a new
sentence of probation in the 2013 case, and violate her probation, the district court would
theoretically revoke her probation and reinstate the underlying sentence of 10 months in
prison. Ludes has now served 2 months of postrelease supervision and if she violates her
supervision and is revoked, she will have to serve the remainder of her underlying 12-
month sentence, i.e., approximately 10 months. See K.S.A. 2015 Supp. 22-3716; K.S.A.
2015 Supp. 75-5217 (requiring a defendant to serve postrelease supervision time in
custody after violating the terms of postrelease supervision). The effect of revocation has
thus not been shown to be demonstrably different whether she is on probation or
postrelease supervision.

In any event, it appears that any collateral consequence of Ludes being on
probation rather than on postrelease supervision would not be a concrete consequence
that is sure to follow, which could save her case from mootness, but merely a
hypothetical consequence that is a mere possibility, which would not save her case from
mootness. See Montgomery, 295 Kan. at 843, citing Spencer v. Kemna, 523 U.S. 1, 118
S. Ct. 978, 140 L. Ed. 2d 43 (1998) (distinguishing between those two types of collateral
consequences).

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We also fail to believe that Ludes' desired relief of specific performance saves her
appeal from mootness. Specific performance is, of course, generally an appropriate
remedy when the State breaches a plea agreement. See State v. Peterson, 296 Kan. 563,
567, 293 P.3d 730 (2013) (describing resentencing in front of a different judge as one of
two typical remedies, the other being withdrawal of the plea). But Ludes has shown no
authority that imposing this remedy could be appropriate here, where she has already
served her entire underlying sentence and the only goal in having the State comply with
the plea agreement is to put her on probation. Any recommendation of probation by the
State would be ineffective, as addressed below. See Bomasuto v. Perlman, 680 F. Supp.
2d 449, 457 (W.D.N.Y. 2010) (finding appeal moot by defendant's release from custody
during the pending of the habeas petition because the only remedy he sought was specific
performance of the trial court's original sentence promise of 5 years).

Ludes, in her responses to our show cause order, is careful to frame her desired
relief as solely receiving a new hearing at which the State would make the
recommendation of probation as it agreed to do in the plea agreement. The logical
extension of this argument is that a claim that the State breached its plea agreement may
never be found moot because the defendant merely seeks a new hearing, which the court
has the authority to order. But cases demonstrate this is not so.

"Lastly, Juan Alcala-Velasquez argues that the Government breached its plea
agreement. We agree. Such error is not harmless, United States v. Myers, 32 F.3d 411,
413 (9th Cir.1994), and ordinarily requires us to vacate the sentence and remand for
resentencing to a different judge. See United States v. Johnson, 187 F.3d 1129, 1136 (9th
Cir.1999). However, because the district court sentenced Juan Alcala-Velasquez to the
statutory mandatory minimum, which is the sentence that must be imposed if we were to
remand, we conclude that this claim is moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.
Ct. 978, 140 L. Ed. 2d 43 (1998) (explaining that an issue is moot when the injury
complained of cannot be 'redressed by a favorable judicial decision'). Accordingly, we
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dismiss this claim." United States v. Alcala-Velasquez, 142 Fed. Appx. 966, 967-68 (9th
Cir. 2005) (unpublished opinion).

See Dunn, 2011 WL 2206640, at *1 (finding Dunn's claim that the State breached the
plea agreement moot because Dunn had completed the prison aspect of his sentence
although he was still on postrelease supervision); see also Lewis v. State Through Dept. of
Public Safety & Corrections, 602 So. 2d 68, 74 (La. App.) (1992) ("At the time Lewis
sought specific performance of his state plea bargain in state court, he had already served
his state sentence, and the State had no authority to compel the federal authorities to give
him credit for his state time on his federal sentence. In this procedural posture, the State
could not give specific performance and the question of granting that remedy was
moot.").

These cases demonstrate that the relief of specific performance involves not
merely obtaining a new sentencing hearing, but obtaining a new sentencing hearing at
which the outcome could benefit the defendant. "[I]f an event occurs while a case is
pending on appeal that makes it impossible for the court to grant any effectual relief
whatsoever to a prevailing party, we should dismiss the case as moot rather than issue an
advisory opinion. See Smith v. Martens, 279 Kan. 242, 244-45, 106 P.3d 28 (2005)." In
re N.A.C., 49 Kan. App. 2d 699, 716, 316 P.3d 771 (2013), rev'd on other grounds and
appeal dismissed 299 Kan. 1100, 329 P.3d 458 (2014). Compare State v. Zirkle, 15 Kan.
App. 2d 674, 676-77, 814 P.2d 452 (1991) (finding appeal of parolee's challenge to the
length of his sentence not moot because if his contentions on appeal were correct, he
would be entitled to resentencing where the original sentence or a lesser sentence would
be imposed), with State v. Brown, No. 112,825, 2015 WL 9286987, at *4 (Kan. App.
2015) (unpublished opinion) (dismissing appeal because "Brown has completely served
the confinement portion of his sentence, any remand for resentencing would be
ineffectual for any purpose"); see Lee v. State, No. 106,274, 2012 WL 2476991, at *2
(Kan. App. 2012) (unpublished opinion) ("Given Lee successfully has completed his
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probation, the appeal of his probation revocation seeks a judgment upon a matter which,
if rendered, could not have any practical effect upon any existing controversy.").

Although the Kansas Supreme Court cases have not examined whether a
defendant's claim of breach of a plea agreement is moot under these circumstances, the
cases in which the court has remanded for a new hearing due to the State's breach of a
plea agreement demonstrate the underlying premise that the outcome of the new hearing
could somehow benefit the defendant. See, e.g., State v. Jones, 302 Kan. 111, 114, 351
P.3d 1228 (2015) (Jones was sentenced to 59 months' imprisonment, the mid-range term
in the applicable grid box, and 36 months' postrelease supervision); Peterson, 296 Kan. at
563-64 (Peterson was sentenced to 52 months in prison, with lifetime postrelease
supervision); State v. Urista, 296 Kan. 576, 581-82, 293 P.3d 738 (2013) (Urista was
subject to a controlling sentence of 204 months). None of these cases examined facts
similar to those here, where the court's judgment would not affect the outcome of the
parties' controversy. See Manly v. City of Shawnee, 287 Kan. 63, Syl. ¶ 4, 194 P.3d 1
(2008) (finding an issue is moot when the court's judgment would not affect the outcome
of the parties' controversy).

We apply those principles to our determination in this case. Let us assume solely
for purposes of argument that the State breached its plea agreement in this case, thus the
appropriate remedy is to vacate the sentence and remand for a new sentencing hearing
with directions that the State comply with the provisions of the plea agreement. Ludes
envisions a new sentencing hearing/probation revocation disposition hearing at which the
State would recommend probation in her 2014 case and would recommend a 120-day
dunk for her probation violation in her 2013 case.

That is a recommendation the State cannot make, given the intervening events.
When a defendant violates her probation, the ultimate sanction is revocation of probation
and imposition of the underlying sentence. But if Ludes were to violate her probation, as
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she has done repeatedly in the past, the State could not employ the sanction of revocation
because Ludes has already served her full underlying sentence. Surely the district court
could not require Ludes to serve her underlying sentence again. Thus Ludes would lack
the substantive incentive to comply with the terms and conditions of her probation, yet
the State would have no full sanction in the event she violated them. To remand for a new
hearing in this case would require the parties and the district court to engage in a futile
act—something the law does not require. See Anderson v. Dugger, 130 Kan. 153, 156,
285 P. 546 (1930) ("the law does not require the performance of a futile or useless act.").
Because the State cannot give specific performance, the question of granting the remedy
Ludes seeks is moot.

In so ruling, we make no finding of whether any breach by the State is harmless.
See Urista, 296 Kan. at 594-95 (finding "if the State breaches its plea agreement
promise—and the defendant raises a timely objection to the breach—such a breach will
constitute harmless error only if a court can say beyond a reasonable doubt that the State's
promise had little, if any, influence on the defendant's decision to enter into the plea
agreement") (Emphasis added.). Here, Ludes did not raise a timely objection to any
breach, and the State has not alleged harmless error. We merely find Ludes' claim moot
because it cannot be redressed by a favorable judicial decision.

Accordingly, we dismiss this case as moot and do not reach the remaining issues.

Appeal dismissed.

* * *

ARNOLD-BURGER, J., concurring: I agree with my colleagues that the issues raised
in this case are moot, but I write separately simply to outline more specifically why I
believe that to be so.
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Christine Ludes was convicted of felony theft in 14-CR-866 (2014 case), while
she was on probation for another felony theft, 13-CR-1160 (2013 case). It is important to
outline what happened on each of those cases to understand why we cannot provide
Ludes any relief—even if we agreed that the State violated the plea agreement in this
case. I will examine each in turn.

The 2013 Case

Ludes was convicted of felony theft, a severity level 9 nonperson felony for an
offense that occurred on November 30, 2013. See K.S.A. 2015 Supp. 21-5801(b)(6).
Based on the severity level of the offense and her criminal history of E, the revised
Kansas Sentencing Guidelines Act (KSGA) provided that her case was presumptive
probation, with a 10-month mid-range sentence. K.S.A. 2015 Supp. 21-6804(a). As a
presumptive probation case, the court was required to impose the prison term and the
duration of probation. K.S.A. 2015 Supp. 21-6804(e)(3). The judge sentenced her to
10 months in prison and gave her 12 months of probation. The judge also sentenced her
to 12 months of postrelease supervision. Clearly, one generally does not usually get both
probation and postrelease supervision. But K.S.A. 2015 Supp. 22-3716(f) provides that
on a felony committed after July 1, 2013, if a nonprison sanction is revoked, the person
must be placed on a term of postrelease supervision after serving his or her underlying
sentence or sanction. Probation is defined as a nonprison sanction. K.S.A. 2015 Supp.
21-6803(o). So if a person is given a nonprison sanction of probation (even if it is
presumptive) and does not violate that probation, at the end of the probation term, if no
extensions are granted during the term, the case would end, with the sentence fully
satisfied. But if a felony offender violates a felony probation and he or she has served the
underlying sentence or portions thereof as a sanction, the court is still required to impose
a term of postrelease supervision. For a severity level 9 nondrug felony, that term is
12 months. K.S.A. 2015 Supp. 21-6608(c)(3). So the postrelease supervision term only
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comes into play in a nonprison sentence when the defendant violates the nonprison
sanction.

When Ludes violated her probation by committing another felony, the court was
entitled to revoke her probation without imposing any intermediate sanctions. K.S.A.
2015 Supp. 22-3716(c)(8). But the plea agreement set forth a recommendation by the
State of a 120-day sanction. See K.S.A. 2015 Supp. 22-3716(c)(1)(C). Regardless of the
sanction, serving the full 10 months or only 120 days, K.S.A. 2015 Supp. 22-3716(f)
required that Ludes serve a 12-month postrelease supervision term at the completion of
her period of incarceration. Not only was this the amount already ordered by the court,
but 12 months is the minimum postrelease supervision period that is allowed by statute.
See K.S.A. 2015 Supp. 22-3717(d)(1)(C); K.S.A. 2015 Supp. 21-6608(c)(3).

So we next must ask what would happen if we found that Ludes was right and the
State violated the plea agreement? We would remand the case for resentencing. But even
if Ludes' served an unnecessarily long prison sentence because of the violation of the plea
agreement, the excess time of incarceration could not be applied to reduce a mandatory
period of postrelease supervision. See State v. Gaudina, 284 Kan. 354, 368, 160 P.3d 854
(2007); State v. Reed, No. 113,845, 2016 WL 2775148, at *2 (Kan. App. 2016)
(unpublished opinion); State v. Brown, No. 112,825, 2015 WL 9286987, at *3-4 (Kan.
App. 2015) (unpublished opinion), petition for rev. filed January 14, 2016; State v. Dunn,
No. 111,283, 2015 WL 2414362, at *2 (Kan. App. 2015) (unpublished opinion), rev.
denied 303 Kan. 1080 (2016). Accordingly, because it is undisputed that Ludes has
served the prison portion of her sentence and her postrelease supervision could not be less
than 12 months, the district court could not provide her any relief on resentencing. Ludes'
claim on the 2013 case is, therefore, moot.



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The 2014 Case

This was also a felony theft, severity level 9 nonperson felony, but because Ludes
committed the offense while she was on probation and she had three prior felony thefts,
the KSGA required a presumptive prison sentence. K.S.A. 2015 Supp. 21-5801(b)(6);
K.S.A. 2015 Supp. 21-6604(f)(1); K.S.A. 2015 Supp. 21-6804(p); K.S.A. 2015 Supp.
22-3716(c)(5). With a criminal history score of C, her mid-range sentence was
12 months. K.S.A. 2015 Supp. 21-6804(a). So in order for the court to give Ludes
probation, it had to grant a dispositional departure. See K.S.A. 2015 Supp. 21-6815(a). It
did not do so in this case and instead sentenced her 12 months in prison and 12 months of
postrelease supervision. The sentence was ordered to run consecutive to the sentence in
her 2013 case, which the court was also required to do under K.S.A. 2015 Supp.
21-6606(c).

In a multiple conviction case, which we have here, even if the sentences are
ordered to run consecutively, a person is only required to serve one postrelease
supervision term, the longest one assessed on the various convictions. See K.S.A. 2015
Supp. 21-6819(b)(1). Ludes is already serving 1-year postrelease supervision on the 2013
case, so the 2014 case adds nothing to her term of postrelease supervision. She has
already served the 12 months in prison. If we were to remand for specific performance on
the plea agreement and the judge followed the plea agreement, she would get a nonprison
sanction, probation, on her 2014 case. She would not have to serve a term of postrelease
supervision unless she violated her probation and had to serve her term. Since she has
served the whole 12 months, apparently with no violations, the 2014 case is over, closed,
and finished. A postrelease supervision term is already being served as part of the 2013
case and that would not be increased or decreased by any resentencing in this case. So
Ludes' 2014 case is also moot.