State v. West

1

NOT DESIGNATED FOR PUBLICATION

No. 114,046

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAMAR WEST,
Appellant.

MEMORANDUM OPINION


Appeal from Wyandotte District Court; J. DEXTER BURDETT, judge. Opinion filed February 3,
2017. Appeal dismissed.

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

Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

Per Curiam: Damar West pled guilty to one count of fleeing or attempting to
elude a police officer. The district court sentenced him to 17 months in prison. West
appeals, arguing the district court improperly calculated his criminal history score, the
State breached the plea agreement, and the court violated his rights under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in sentencing him
to the aggravated sentence. We dismiss as his issues are moot.



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On June 27, 2012, West entered into a plea agreement with the State. He agreed to
plead guilty to one count of fleeing or attempting to elude a police officer under K.S.A.
2011 Supp. 8-1568. The parties agreed to the mitigated sentence for the offense, with no
additional departures. West filed a motion challenging his criminal history score. His
presentence investigation report indicated he had three prior convictions for resisting
arrest in Missouri. West argued the district court should score one of those convictions as
a nonperson felony because it did not compare to a person felony in Kansas.

At the sentencing hearing, West again objected to his criminal history score. At
the hearing, he argued the district court did not make the necessary findings to score all
three convictions as person felonies. The court denied West's motion, stating the State
had adequately and accurately described the status of Kansas law as requiring comparable
elements between the prior conviction and a Kansas offense. The court scored West's
criminal history as A, relying on his 2012 Missouri conviction for resisting a lawful
arrest; his 2009 Missouri conviction for resisting arrest/detention/stop by fleeing; and his
2006 Missouri conviction for resisting arrest by fleeing—creating a substantial risk of
serious injury/death to any person.

The State recommended the mitigated sentence pursuant to the plea, which was 15
months' imprisonment. After making its recommendation, the prosecutor added,

"The only additional comments that I would make is that this, according to the records
that I have received and before the Court today, this would be Mr. West's fourth fleeing
and eluding case and I believe that that causes a great public safety concern. The Court
should take that in mind."

The district court sentenced West to the aggravated term of his presumptive
sentence, which was 17 months' imprisonment. The court explained that West's "criminal
history and the nature of the crimes in this case warrant the aggravated sentence." West
appeals.
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On August 5, 2016, the State filed a notice of change in West's custodial status.
The Kansas Department of Corrections (DOC) released West from custody on April 7,
2015, and discharged him from postrelease supervision on October 7, 2015, making the
sentence issue moot. West filed a response to this court's show cause order arguing his
illegal sentence issue was not moot.

West first argues his sentence was illegal because the district court improperly
classified his prior Missouri convictions as person felonies when calculating his criminal
history score. The State argues that West's argument is moot because he has already
completed his entire sentence and postrelease supervision

Because mootness is a doctrine of court policy, which was developed through
court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 (2012). Kansas courts have described the mootness test as a
determination of 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. [Citations omitted.]""' State v.
Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014). As a general rule, Kansas appellate
courts do not decide moot questions or render advisory opinions. The mootness doctrine
is one of court policy, which recognizes that the role of the court is to "'"determine real
controversies relative to the legal rights of persons and properties that are actually
involved in the particular case properly brought before it and to adjudicate those rights so
that the determination will be operative, final, and conclusive."' [Citations omitted]."
Stano v. Pryor, 52 Kan. App. 2d 679, 682-83, 372 P.3d 427 (2016) (quoting Hilton, 295
Kan. at 849).

Prior panels of this court have found illegal sentencing issues moot once the
defendant has completed his or her sentence. See, e.g., State v. Brown, No. 112,825, 2015
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WL 9286987 (Kan. App. 2015) (unpublished opinion); State v. Tipps, No. 113,002, 2015
WL 7434683 (Kan. App. 2015) (unpublished opinion); State v. Lawrence, No. 113,470,
2015 WL 7434300 (Kan. App. 2015) (unpublished opinion). When the court corrects an
illegal sentence, the defendant receives full credit for the time spent in custody under the
sentence prior to correction. K.S.A. 22-3504(1). In this case, West has already completely
served his sentence, and the DOC has discharged him from postrelease supervision. Any
actual controversy over West's sentence has ended, and remanding for resentencing
would arguably be ineffectual for any purpose.

West argues the case is not moot because his appeal will determine his correct
criminal history score. West relies on State v. LaMunyon, 21 Kan. App. 2d 281, 286, 898
P.2d 1182 (1995). In LaMunyon, the defendant challenged the classification of one of his
prior offenses as a person felony. The LaMunyon court held the "appeal of the issue is not
moot because of the danger that if he is convicted of another crime, the sentencing court
might take judicial notice of the journal entry in [the present] case." 21 Kan. App. 2d at
286. See also State v. Burton, No. 89,928, 2003 WL 22479594, at *2 (Kan. App. 2003)
(unpublished opinion) (finding defendant's challenge to criminal history score not moot
after release from DOC supervision based on LaMunyon).

In State v. Reed, No. 113,845, 2016 WL 2775148 (Kan. App. 2016) (unpublished
opinion), however, the court rejected this argument. The Reed court noted "taking judicial
notice of a prior criminal history finding is not sufficient to establish a challenged
criminal history." 2016 WL 2775148, at *3 (citing K.S.A. 2015 Supp. 21-6814). The
court added that if the defendant files a written objection to a criminal history score, the
State must produce further evidence to prove the challenged convictions. 2016 WL
2775148, at *3 (citing State v. Schow, 287 Kan. 529, 539-40, 197 P.3d 825 (2008). See
also Brown, 2015 WL 9286987, at *4 ("If Brown is sentenced for a new crime in the
future, he can challenge the classification of his pre-1993 burglary convictions at that
time."). Thus, this argument does not establish that West's issue is not moot.
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West also argues his appeal is not moot because a judgment on this issue is
necessary to determine whether he may sue his trial counsel for legal malpractice. In
Garcia v. Ball, 303 Kan. 560, Syl. ¶ 4, 363 P.3d 399 (2015), our Supreme Court held:

"The exoneration rule applicable to a criminal defendant's claim that his or her
attorney's legal malpractice resulted in the defendant serving an illegal sentence requires
the defendant to obtain post-sentencing relief from the illegal sentence, but the rule does
not require the defendant to prove that he or she was innocent of the crime for which the
illegal sentence was imposed."

West argues that if he served prison time that he should not have, he may want to pursue
a cause of action against his trial counsel. He can only do this, though, if we determine
his sentence was illegal.

"A case is moot when a justiciable controversy no longer exists." In re A.E.S., 48
Kan. App. 2d 761, 764, 298 P.3d 386 (2013). "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 v. Montgomery, 295 Kan. 837, 840, 286 P.3d
866 (2012). In Reed, the court found that the defendant's claim that his sentence was
illegal was no longer a justiciable controversy after he completed his sentence, even if the
defendant might want to later pursue a legal malpractice action. 2016 WL 2775148, at *3.
The court noted that "a justiciable controversy has the characteristic of being, among
other things, immediate. . . . Whether [the defendant] may at some future date pursue a
malpractice claim does not satisfy the element of immediacy." 2016 WL 2775148, at *4.
West's claim similarly fails to meet the requirement of immediacy.

On the other hand, in State v. Good, No. 113,442, 2016 WL 5344069 (Kan. App.
2016) (unpublished opinion), the court found an illegal sentence issue was not moot even
though the DOC had released the defendant. In that case, the defendant argued his appeal
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was not moot because he needed a judgment that his sentence was illegal in order to sue
his attorney for malpractice. He also argued the issue was capable of repetition because
of the short underlying prison sentence, and it raised an issue of public importance.

We find Reed to be more persuasive. Thus, West's claim that the district court
improperly calculated his criminal history score is moot.

Next, West argues the State breached the plea agreement because it paid only "lip
service" to its obligation to recommend the mitigated sentence and undermined its
recommendation by commenting on West's threat to public safety. Because West has
already completed his prison sentence and postrelease supervision, this issue is moot.
See, e.g., Dunn v. State, No. 104,853, 2011 WL 2206640 (Kan. App. 2011) (unpublished
opinion) (finding defendant's claim that the State breached the plea agreement moot
because he had completed prison sentence). West does not argue otherwise in his
response to this court's show cause order.

In his final issue, West argues the district court violated his rights under Apprendi
when it sentenced him to an aggravated sentence without proving the aggravating factors
to a jury beyond a reasonable doubt. For the reasons stated above, this issue is moot.
However, even if we were to consider this issue, West's argument would fail. West
acknowledges our Supreme Court has already rejected this argument in State v. Johnson,
286 Kan. 824, 849-52, 190 P.3d 207 (2008), and we are duty bound to follow our
Supreme Court absent some indication it is departing from its previous position. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015).

Dismissed.