State v. Walker

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NOT DESIGNATED FOR PUBLICATION

Nos. 114,931
114,933

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EARNEST E. WALKER, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT and STEPHEN J. TERNES, judges.
Opinion filed 23, June 2017. Affirmed in part and dismissed in part.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Defendant Earnest E. Walker, Jr., appeals the revocation of his
probation, the calculation of credit for jail time, and the denial of his motions to withdraw
his pleas in two Sedgwick County District Court cases. This consolidated appeal presents
a convoluted procedural record. But Walker's appeal provides no vehicle for relief in part
because he has satisfied the sentences imposed and in part because the district court
lacked jurisdiction to consider the withdrawal of the pleas. We, therefore, affirm in part
and dismiss in part for the reasons we explain.

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The factual circumstances underlying the criminal charges are largely irrelevant.
In March 2014, Walker was involved in separate incidents resulting in his being charged
in one case with felony fleeing or attempting to elude a law enforcement officer and two
lesser traffic offenses and in a second case with felony theft for shoplifting from a home
improvement supply store. Although the cases were never formally consolidated in the
district court, they were handled in joint hearings.

Pursuant to an agreement with the State, Walker pleaded guilty to felony fleeing or
attempting to elude and to felony theft in exchange for a sentencing recommendation that
included probation. At the sentencing hearing in October 2014, the district court followed
the agreement and imposed a sentence of 12 months in prison on the felony driving
offense to be served consecutive to a 12-month prison sentence for the felony theft and
placed Walker on probation in both cases for 12 months. Walker timely filed direct
appeals in each of those cases.

While those appeals were pending, Walker repeatedly ran afoul of the conditions
of his probation. The district court revoked and reinstated Walker's probation in
December 2014 and March 2015, imposing sanctions and extending the probationary
period each time. In July 2015, the district court again revoked Walker's probation,
declined to reinstate probation, and ordered Walker to serve the underlying prison
sentences in the cases. Walker timely filed notices of appeal of those rulings, but the
appeals were not docketed in this court until December 2015.

In July and August 2015, Walker drafted and filed motions to withdraw his pleas,
for a calculation of jail time credit, and to correct illegal sentences. The district court
denied the motion to withdraw the pleas and to correct the illegal sentences on the
grounds that it lacked jurisdiction in the face of Walker's ongoing direct appeals that he
filed in October 2014. Walker filed pro se notices of appeal from those rulings. At the
State's request, the district court continued Walker's jail time credit motion and denied it
in late September. The record does not include a notice of appeal from that ruling.
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In May 2016, Walker filed his opening brief in this case and challenged the
revocation of his probation, his jail time credit, and the district court's denial of his
motions to withdraw his pleas.

In September 2016, the State filed a notice with this court that Walker had served
his entire sentence. See Kansas Supreme Court Rule 2.042 (2017 Kan. S. Ct. R. 18).
Walker does not dispute the notice.

Walker concedes that his challenge to the computation of jail time credit is moot,
since he has completed his sentence. Now, there is no sentence to be reduced by any
additional jail time Walker might have been entitled to. This court has so recognized, and
we agree. See State v. Ramsey, No. 111,163, 2015 WL 6444242, at *2 (Kan. App. 2015)
(unpublished opinion), rev. denied 304 Kan. 1021 (2016). That part of Walker's appeal is
dismissed as moot.

The State submits that Walker's challenge to his probation revocation is similarly
moot because he has served his sentence. The Kansas Supreme Court has recognized that
after a defendant has completed his or her sentence, any challenge to the revocation of
probation resulting in the defendant's incarceration must be considered moot. State v.
Montgomery, 295 Kan. 837, 838, 844, 286 P.3d 866 (2012). And this court has applied
the rule in Montgomery as controlling authority. See, e.g., State v. Cotton, No. 109,934,
2014 WL 4916447, at *2 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan.
1013 (2015). We conclude that Montgomery governs here.

Walker contends the issue is not moot because he would have to obtain a court
order holding the revocation to be legally improper to file a civil malpractice action
against the lawyer who represented him. We presume Walker's premise to be correct—
exoneration on the probation revocation would be a condition precedent to filing a
malpractice claim. See Garcia v. Bell, 303 Kan. 560, 573, 363 P.3d 399 (2015); Canaan
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v. Bartee, 276 Kan. 116, Syl. ¶ 2, 72 P.3d 911 (2003). But the abstract proposition that
Walker conceivably might wish to file a malpractice action in the indeterminate future
fails to keep his appeal from being moot. The prospect is entirely speculative and
hypothetical, and that's not good enough. See Montgomery, 295 Kan. at 843 (noting that
speculative consequences insufficient to prevent otherwise concluded legal dispute from
being moot); State v. Reed, No. 113,845, 2016 WL 2775148, at *3 (Kan. App. 2016)
(unpublished opinion) (mere possibility defendant might sometime consider pursuing
legal malpractice action too remote to keep challenge to sentence already served from
being moot).

Walker has not outlined a colorable legal malpractice claim in his briefing to us.
Nor has Walker sought leave to supplement or expand the record on appeal to show that
he, in fact, has taken steps to pursue such a claim or that a lawyer has reviewed the
circumstances and believes there may be a claim or would be willing to represent him.
Walker's assertion is simply too indefinite to retrieve his challenge to the probation
revocation from the realm of the moot.

Walker also argues that his probation revocation presents an issue of sufficient
legal importance that we should consider it because it likely will recur in other cases but
continue to evade appellate review. See Montgomery, 295 Kan. at 841. Walker contends
the district court erred in believing it could revoke his probation without first imposing
intermediate sanctions under K.S.A. 2015 Supp. 22-3716(c) because his sentences were
dispositional departures to probation. He contends the district court was both factually in
error here and legally mistaken. But the district court also found that Walker's continued
probation violations demonstrated he was not amenable to the rehabilitative opportunities
probation offered and continuing him on probation had ceased to serve his welfare in
trying to become law-abiding. That provides a wholly independent and legally adequate
basis for requiring Walker to serve his underlying sentences. See 2016 Supp. K.S.A. 22-
3716(c)(9). Although the district court's findings in that respect couldn't be described as
thorough, they were adequate. Accordingly, the record in this case isn't well suited for
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deciding the recurrent issue Walker posits, since a ruling on it would technically be dicta
in light of the district court's alternative ground for revoking Walker's probation.

Taking account of the circumstances, we find Walker's appeal of his probation
revocation to be moot, and we discern no reason for excusing it from the general rule
calling for the dismissal of moot appeals.

Finally, Walker appeals the district court's ruling denying his motions to set aside
his plea. Despite an odd procedural wrinkle, we conclude the district court correctly
declined to act on the motions because it lacked jurisdiction. As we have already pointed
out, Walker had filed and docketed appeals in both cases when he presented his motions
to the district court. A district court loses jurisdiction in a case after an appeal has been
docketed. In re Care & Treatment of Emerson, 306 Kan. ___, 392 P.3d 82, 85 (2017)
(applying rule); State v. Fritz, 299 Kan. 153, 155, 321 P.3d 763 (2014) (acknowledging
rule); State v. Dedman, 230 Kan. 793, 796, 640 P.2d 1266 (1982). Applying that rule
here, the district court lacked jurisdiction to consider the motions.

Walker contends the statute governing withdrawal of a plea carves out an
exception to the jurisdictional rule, allowing a district court to consider such a motion
notwithstanding an active appeal. But Walker can point to no language in K.S.A. 2016
Supp. 22-3210(d)(2), the subsection applicable to the withdrawal of pleas after
sentencing, that excepts those motions from the general jurisdictional rule. The absence
of an explicit exception indicates the legislature intended the courts to apply the
customary statutes and rules governing appeals and jurisdiction.

Moreover, K.S.A. 2016 Supp. 22-3210(e)(1) permits a defendant to file a motion
to withdraw a plea within 1 year after a final order disposing of a direct appeal in the
case. That window of opportunity cuts against an implicit jurisdictional exception for a
district court to rule on a motion to withdraw a plea during an appeal. A defendant plainly
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can take up the issue after the appeal has concluded, obviating the need for the district
court to act in the meantime.

Walker tries to bolster his position with cases in which neither the parties nor the
courts addressed the jurisdictional issue in looking at motions to withdraw pleas while
appeals were pending. But oversight in failing to recognize or resolve a jurisdictional
problem is a far cry from precedent that no such problem exists. And inadvertent silence
isn't the same as reasoned argument. So Walker's authority is neither authoritative nor
persuasive. The court's analysis in Fritz at least signals a contrary view. Fritz, 299 Kan. at
155 ("Fritz may have been precluded from filing his motion to withdraw his plea while
his conviction and sentence were on appeal.").

The procedural oddity arises because the jurisdictional bar—Walker's original
appeals—no longer exists. Those appeals have been resolved adversely to him. We
decline to wade into an academic discussion as to whether that invests this court with
jurisdiction. Cf. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) ("If the
district court's order was entered without jurisdiction, then an appellate court does not
acquire jurisdiction on appeal."). Rather, we affirm the district court's ruling that it lacked
jurisdiction to decide Walker's motions.

The district court's jurisdictional ruling, however, did not resolve the substantive
merits of those motions. Likewise, we have not addressed the merits. Nor could we on the
present record. The Fritz case strongly suggests Walker may renew his motions, as
provided in K.S.A. 2016 Supp. 22-3210(d)(2) and (e)(1), upon the conclusion of this
appeal. Fritz, 299 Kan. at 155.

Affirmed in part and dismissed in part.