State v. Brown ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,106
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHAUN MICHAEL BROWN,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed September 10,
2021. Appeal dismissed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
W. Brad Sutton, assistant county attorney, Jeff Ebel, county attorney, and Derek Schmidt, attorney
general, for appellee.
Before BUSER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: On appeal from the revocation of his probation, Shaun Michael
Brown argues that his underlying sentence is possibly illegal because the State neglected
to independently offer sufficient evidence to support the propriety of converting his three
prior misdemeanor offenses to a single person felony for criminal history purposes.
Brown also asserts that the district court abused its discretion by revoking his probation
rather than allow him more time on probation to re-enter drug abuse treatment. Given that
Brown has satisfied his sentence and he has failed to show the dismissal of his appeal
1
would lead to impairment of a substantial interest, we conclude the issues raised are
moot. Brown's appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Shaun Michael Brown pled guilty to attempted aggravated battery, interference
with a law enforcement officer, and theft for acts he committed in May 2019. The district
court accepted Brown's pleas and convicted him of these crimes.
A presentence investigation (PSI) report revealed that Brown had a criminal
history score of B, based on one prior person felony conviction and the conversion of
three prior person misdemeanor convictions. The district court granted Brown's motion
for a downward dispositional departure and placed him on probation for 12 months, with
an underlying prison sentence of 14 months, followed by 12 months of postrelease
supervision.
A few months after sentencing, the State alleged that Brown did not report to his
probation officer or refrain from violating the law and moved to revoke his probation.
Brown stipulated to the State's allegations, and the district court ordered Brown to serve a
five-day jail sanction. The court permitted Brown to resume probation upon completion
of his sanction but ordered an extension of his probation term by requiring that he serve a
full 12 months once released.
Not long after, the State filed its second motion to revoke and alleged Brown
committed a series of drug related technical violations, as well as several new crimes,
which were also largely drug related offenses.
Following an evidentiary hearing, the district court determined that Brown
violated his probation in the manner alleged in the State's motion to revoke and that he
2
acquired a new conviction while on probation. Noting Brown's initial sentence resulted
from a dispositional departure, the court revoked Brown's probation under K.S.A. 2018
Supp. 22-3716(c)(9)(B) and ordered Brown to serve his 14-month prison sentence
followed by 12 months of postrelease supervision.
Brown timely appeals, challenging the accuracy of his criminal history score and
the reasonableness of the district court's decision to revoke his probation. Brown
completed the prison and postrelease portions of his sentence during this appeal. Because
that term is expired and he has failed to carry his burden to reveal that an actual, specific
controversy remains in his case, his issues are moot and his appeal is dismissed.
ANALYSIS
IS REMAND REQUIRED TO ENSURE BROWN'S CRIMINAL HISTORY PROPERLY INCLUDED
HIS PRIOR MISDEMEANOR OFFENSES?
For the first time on appeal, Brown argues that the State failed to prove he was
represented by counsel or otherwise waived that right when he was convicted of his prior
misdemeanor offenses in a municipal court. From this, Brown asserts that the State failed
to prove his criminal history by a preponderance of the evidence as statutorily required
and as directed by State v. Obregon, 309 Kan. 1267, Syl. ¶ 4, 444 P.3d 331 (2019), and
State v. Ewing, 310 Kan. 348, Syl. ¶ 4, 446 P.3d 463 (2019). See K.S.A. 2020 Supp. 21-
6814(b). Brown also contends that because the PSI report listed "Salina Municipal Court
Records" and "Prior PSIs" as the source of the information provided for the convictions,
it triggered an obligation for the State to attach prior PSI reports or journal entries to his
current report to verify the legal effect of that information. K.S.A. 2020 Supp. 21-
6813(b)(5).
The State responds by arguing that this issue is moot because Brown has finished
serving his sentence. Alternatively, the State maintains that the issue should still be
3
dismissed because Brown admitted to his criminal history at sentencing and fails to
effectively show that he received an illegal sentence, citing State v. Roberts, No. 121,682,
2020 WL 5268197, at *4 (Kan. App. 2020) (unpublished opinion), rev. granted 312 Kan.
899 (2021). Brown acknowledged Roberts in his brief but asserts that it was wrongly
decided because it disregarded the rule announced in Obregon and misinterpreted the
argument the appellant raised in that appeal. Brown did not respond to the State's
assertion that his issues are moot.
We find the State provided reliable evidence that reflects Brown is no longer
serving his sentence and, therefore, sufficiently established its mootness claim. Brown
did not respond to the State's mootness assertion claim. Thus, he failed to sustain his
burden to show that dismissal of his appeal would lead to impairment of a meaningful
interest.
Preservation
Although it alternatively argues that Brown waived his criminal history challenge
by admitting to the accuracy of the score at sentencing, it is not the State's position that
Brown is precluded from challenging his criminal history score for the first time on
appeal. See State v. Rankin, 60 Kan. App. 2d 60, Syl. ¶ 1, 489 P.3d 471 (2021) ("A
criminal defendant can challenge his or her criminal history for the first time on appeal
because the misclassification of a prior conviction results in an illegal sentence that can
be corrected at any time."); see also K.S.A. 2020 Supp. 21-6820(e)(3) (appellate court
may review a claim challenging the classification of a prior conviction for criminal
history purposes); State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) ("[W]here
there has been a misclassification of a prior conviction, the resulting sentence is illegal
and can be corrected at any time pursuant to K.S.A. 22-3504."); K.S.A. 2020 Supp. 22-
3504(a) ("The court may correct an illegal sentence at any time while the defendant is
serving such sentence.").
4
The Legislature recently amended K.S.A. 22-3504, the statute governing
correction of illegal sentences. K.S.A. 2020 Supp. 22-3504(a) now reads: "(a) The court
may correct an illegal sentence at any time while the defendant is serving such sentence."
A new subsection, K.S.A. 2020 Supp. 22-3504(d), states: "The amendments made to this
section by this act are procedural in nature and shall be construed and applied
retroactively." L. 2019, ch. 59, § 15. This amendment relates to statutory authority to file
a motion to correct an illegal sentence. State v. Roat, 311 Kan. 581, 602, 466 P.3d 439(2020). In this case, Brown properly raised his criminal history challenge while he was
serving his sentence.
Standard of Review and Basic Legal Principles
Classification of prior convictions for criminal history purposes involves
interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020
Supp. 21-6801 et seq. When that scheme is at issue, it presents an issue of statutory
interpretation which is a question of law, subject to unlimited review. State v. Wetrich,
307 Kan. 552, 555, 412 P.3d 984 (2018).
When a defendant challenges the accuracy of his or her criminal history score, the
State bears the burden to establish that criminal history by a preponderance of the
evidence. See K.S.A. 2020 Supp. 21-6814; Ewing, 310 Kan. at 359. On appeal from
claims alleging insufficiency in this regard, we determine whether substantial competent
evidence supports the district court's finding that the State met this burden. Obregon, 309
Kan. at 1275.
A case is moot when a court determines that "'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.'" State v.
Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 (2012). "Generally, Kansas appellate
5
courts do not decide moot questions or render advisory opinions." State v. Tracy, 311
Kan. 605, 607, 466 P.3d 434 (2020). Mootness is a discretionary policy used to avoid
unnecessary issues but allows a court to "'determine real controversies relative to the
legal rights of persons and properties which are actually involved in a particular case
brought before it and to adjudicate those rights in such manner that the determination will
be operative, final, and conclusive.'" Roat, 311 Kan. at 590. The applicability of the
doctrine presents a question of law over which this court exercises unlimited review. 311
Kan. at 590.
The Respective Burdens Borne by the Parties in Claims Involving Mootness
The State—as the party asserting mootness—"bears the initial burden of
establishing that the case is moot in the first instance." Roat, 311 Kan. at 593. After the
State makes such a showing by establishing that the defendant completed the terms and
conditions of their sentence, "the burden shifts to the defendant to show the existence of a
substantial interest that would be impaired by dismissal or that an exception to the
mootness doctrine applies." 311 Kan. at 593; State v. Castle, 59 Kan. App. 2d 39, 47, 477
P.3d 266 (2020), rev. denied 313 Kan. __ (March 31, 2021).
The State provided sufficient evidence establishing Brown completed his sentence and
thus successfully made a prima facie case of mootness.
Our Supreme Court recently found that the Kansas Adult Supervised Population
Electronic Repository (KASPER) is unreliable evidence and held that appellate courts
may not rely on it to make factual findings in support of mootness. State v. Yazell, 311
Kan. 625, Syl. ¶ 1, 465 P.3d 1147 (2020). This court later determined that "[a] written
certification from the [Kansas Department of Corrections (KDOC)] records custodian is
reliable evidence that may support appellate fact-finding for the limited purpose of
deciding whether an appeal is moot." Castle, 59 Kan. App. 2d 39, Syl. ¶ 4. And in State
v. Harmon, No. 122,153, 2021 WL 936070, at *3 (Kan. App. 2021) (unpublished
6
opinion), a panel of this court found that a letter from the sentence computation unit
manager of the KDOC was similarly, though somewhat less, reliable for the same limited
purpose.
Here, the State filed a notice of change in custodial status under Supreme Court
Rule 2.042 (2020 Kan. S. Ct. R. 18) and attached a letter much like that approved of in
Harmon. The State later filed an amended notice, and again attached that letter, as well as
a KDOC certification like the one considered reliable in Castle. The Harmon-type letter
stated that Brown finished serving the prison portion of his sentence and began serving
postrelease supervision in January 2021: "Shaun Michael Brown, KDOC #108401
satisfied the prison portion of the sentence associated with the above referenced Saline
County case on January 19, 2021 and was released to serve the post-release supervision
period associated with the case." The "Certification of Time Served," which is much like
that seen as acceptable in Castle, was signed by the "legal keeper of all official records
and files of the Office of the Secretary of Corrections," and likewise it stated that Brown
was released from prison on January 19, 2021. These documents constitute reliable
evidence and are enough to sustain the State's burden to establish that Brown is no longer
serving his prison sentence for purposes of simply establishing whether this appeal is
moot. Cf. Castle, 59 Kan. App. 2d at 47. It appears that Brown has likewise satisfied the
postrelease portion of his sentence while awaiting resolution of his appeal.
Brown fails to carry his burden to establish that an actual controversy remains despite
completion of his sentence or that dismissal would impair a substantial interest.
The expiration of a defendant's sentence does not necessarily render an appeal
moot because "litigants must have some effective means to vindicate injuries suffered to
their rights without being shut out of court." Roat, 311 Kan. at 591 (citing Christopher v.
Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 [2002]). Thus, "it is the
policy and the obligation of the state to furnish and of the courts to give every litigant his
7
day in court and a full and ample opportunity to be heard." State ex rel. Stephan v.
O’Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984). Our appellate courts have
recognized that a "determination of mootness must . . . include analysis of whether an
appellate judgment on the merits would have meaningful consequences for any purpose,
including future implications." Roat, 311 Kan. at 592-93. We must also consider whether
a potentially moot issue meets at least one of these requirements to determine its
reviewability: "(1) [the issue] is of statewide interest and of the nature that public policy
demands a decision, such as those issues that would exonerate the defendant; (2) remains
a real controversy; or (3) is capable of repetition." State v. Hollister, 300 Kan. 458, 467,
329 P.3d 1220 (2014); State v. Hollinshed, No. 121,706, 2020 WL 5849361, at *1 (Kan.
App. 2020) (unpublished opinion), rev. denied 313 Kan. __ (August 10, 2021). But it is
the defendant's burden to show "the existence of a meaningful interest that would be
impaired by dismissal." 311 Kan. at 593. See also State v. Mayes, 311 Kan. 615, 617, 465
P.3d 1141 (2020) ("Without a challenge from Mayes, the panel has nothing to
consider."); State v. Yazell, No. 116,761, 2021 WL 402078, at *5-8 (Kan. App. 2021)
(unpublished opinion) (addressing several claims that could have conceivably been raised
but still failed to prevent dismissal of moot appeal).
Brown does not argue that a meaningful interest or asserted right exists which
would be impaired by dismissal of his appeal. He also does not argue that an exception to
the mootness doctrine applies to his case. See State v. Kinder, 307 Kan. 237, 244, 408
P.3d 114 (2018) (exception to mootness doctrine applies for cases that are otherwise
moot but raise issues capable of repetition and present concerns of public importance);
see also Roat, 311 Kan. at 590 (finding mootness a prudential doctrine subject to
exceptions and therefore not a jurisdictional issue). He simply contends that his PSI
report does not specifically reflect that he enjoyed the benefit of counsel during his prior
municipal cases or that he otherwise waived that right. Brown alleges that this leads to
the possibility of an illegal sentence, therefore, remand is necessary to investigate and
resolve the issue.
8
K.S.A. 2020 Supp. 21-6814(b) states:
"Except to the extent disputed in accordance with subsection (c), the summary of
the offender's criminal history prepared for the court by the state shall satisfy the state's
burden of proof regarding an offender's criminal history."
The record before us reflects that Brown did not advance a challenge against his
criminal history at sentencing. To the contrary, he assured the court that he had reviewed
his score with his attorney and the PSI report was accurate. The State only had the burden
to provide evidence to substantiate the issue Brown now raises even if he articulated a
challenge at the time of sentencing. He did not.
Notably, Brown does not contend that he was truly denied the benefit of counsel
for those convictions. He merely speculates that it is a possibility his rights were
compromised because the State did not take affirmative steps to independently prove
such representation occurred. An argument of this nature cannot establish the continued
existence of a real controversy and overcome the specter of mootness hanging over his
case. "Litigants must do more than mention speculative rights; they must give substance
to their arguments when asserting that protection of collateral rights necessitates
resolution of their underlying appellate issues." Roat, 311 Kan. at 601. The predicate
claim must be described well enough to show that the arguable nature of the underlying
claim is "more than just 'hope.'" Roat, 311 Kan. at 597 (quoting Christopher, 536 U.S. at
416). Brown fails to meet this requirement and thus provides no justifiable reason that
this court should review the merits of this issue. It is not incumbent upon this court to
ferret out the possible specifics of his claim. In short, Brown has deprived us of the tools
needed to justify an appellate determination of the correctness of the sentence he has fully
served.
The States advances the alternative argument that dismissal is also appropriate
because Brown admitted to his criminal history at sentencing and fails to effectively
9
prove that he received an illegal sentence. Brown also raised the added claim that the
district court abused its discretion in revoking his probation. Because we have already
concluded that Brown's case is moot, we decline to delve into the merits of either of these
two issues.
Appeal dismissed.
10