Stewart v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,936
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WAYNE A. STEWART,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Opinion filed December 17,
2021. Affirmed.
Wayne Stewart, appellant pro se.
Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: In 2018, the State filed a petition under the Kansas Sexually Violent
Predator Act (KSVPA) to adjudicate whether Wayne Stewart should be committed for
care and treatment under that program. While that commitment action was pending,
Stewart filed a separate petition for a writ of habeas corpus under K.S.A. 60-1501,
challenging the court's authority in the KSVPA action. The district court held a hearing
on Stewart's petition but ultimately dismissed his claim, finding the commitment
adjudication could proceed. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
The pending KSVPA petition is the second the State has filed against Stewart, but
it arises from conduct beginning 40 years ago.
In 1981, Stewart pleaded guilty to attempted rape; in 1983, he was convicted of
aggravated indecent liberties with a child. Before he was released from prison in 2001 for
these convictions, the State filed a petition to involuntarily commit Stewart under the
KSVPA. But an evaluation from Larned State Hospital found he did not qualify as a
sexually violent predator—at that time, the evaluation indicated Stewart was unlikely to
engage in similar future behavior, and any diagnosed mental disorders did not affect his
ability to control his behavior. As a result, the Wyandotte County District Court
dismissed the 2001 petition.
Unfortunately, Stewart did engage in other harmful behavior. In 2009, the State
charged Stewart with two counts of aggravated indecent liberties with a child and one
count of attempted aggravated indecent liberties with a child. Stewart pleaded no contest
in 2011 to four counts of aggravated battery for the conduct leading to these charges. The
court imposed a controlling 120-month prison sentence, but it did not make any findings
at that time that Stewart's 2011 convictions were sexually motivated.
In January 2018, before Stewart's release from prison for the 2011 convictions, the
State filed a second KSVPA petition in Wyandotte County District Court. The State
based its petition on Stewart's 1981 and 1983 convictions and filed a psychologist's report
noting Stewart met the KSVPA's requirements. The district court found the petition and
report established probable cause that Stewart was a sexually violent predator and
ordered he be held in the Wyandotte County Jail. Following an evidentiary hearing, the
court reached the same conclusion and ordered Stewart to undergo an evaluation at
Larned State Hospital. That evaluation also determined Stewart met the requirements for
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involuntary commitment. The findings in both the initial report and the later evaluation
were based, in part, on a sex-based mental-health disorder diagnosed after the 2001
evaluation.
In June 2019, Stewart filed a pro se petition for writ of habeas corpus under
K.S.A. 60-1501—the suit giving rise to this appeal—challenging the legality of the
adjudication. His petition raised two main arguments: the 2011 convictions could not
form the basis of the adjudication because they did not involve sexually motivated
offenses, and res judicata precluded a second adjudication based on his 1981 and 1983
convictions because the 2001 adjudication had been decided on the merits.
After a hearing where both Stewart and the State presented arguments, the district
court summarily dismissed the petition. It concluded that even if the 2011 convictions
could not be used to prove Stewart had been convicted of a sexually violent offense, they
were relevant to support other elements in the commitment action, such as the likelihood
to reoffend. And the court found that res judicata did not apply because Stewart had
failed to prove the 2001 adjudication had been dismissed with prejudice.
Stewart appeals the dismissal of his K.S.A. 60-1501 petition. From the record
before us, it is unclear whether Stewart's KSVPA adjudication has been resolved.
DISCUSSION
Stewart's pro se appeal raises four interrelated issues. They broadly fall into two
categories: challenges to the use of the 1981 and 1983 convictions and challenges to the
use of the 2011 convictions. We do not reach the merits of these claims, however,
because we agree with the State that a K.S.A. 60-1501 petition is not an appropriate
avenue for Stewart to collaterally challenge his ongoing commitment adjudication.
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Stewart filed his habeas petition under K.S.A. 2020 Supp. 60-1501(a), which
allows "any person in this state who is detained, confined[,] or restrained of liberty on
any pretense" to request a "writ of habeas corpus." In most instances, K.S.A. 60-1501
provides an avenue for individuals to challenge the mode or condition of their
confinement, including pretrial confinement. See Safarik v. Bruce, 20 Kan. App. 2d 61,
Syl. ¶ 5, 883 P.2d 1211, rev. denied 256 Kan. 996 (1994); see also In re Mason, 245 Kan.
111, 115, 775 P.2d 179 (1989) (person released on bond is still in custody and may file
habeas petition).
In its arguments before the district court, the State focused primarily on the merits
of Stewart's claims regarding his previous convictions. The State continues to make those
arguments on appeal. But it also asserts another reason to support the district court's
summary dismissal of Stewart's habeas petition: a habeas action is not an appropriate
avenue under these circumstances for Stewart to challenge the court's rulings in the
commitment adjudication.
Because appellate courts are courts of review, we do not ordinarily consider issues
raised for the first time on appeal. State v. Vonachen, 312 Kan. 451, Syl. ¶ 1, 476 P.3d
774 (2020). But because this preservation rule in many instances stems from prudential
concerns, we may consider new arguments on appeal if the issue warrants our review and
if review is possible based on the record before us. State v. Parry, 305 Kan. 1189, 1192,
390 P.3d 879 (2017). For example, appellate courts have previously decided to consider
purely legal issues in the first instance if they are based on undisputed facts, or if
deciding an issue is necessary to serve the ends of justice or prevent deprivation of a
fundamental right and would resolve the case. We have also considered arguments that
provide an alternative basis for affirming the district court's decision. See State v.
Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012). The State's argument falls into
this third category of cases. And because that argument does not require any further
factual development and ultimately resolves this appeal, we opt to consider it here.
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The State argues that Stewart's K.S.A. 60-1501 petition only raises issues that
could be (or already have been) litigated in his commitment adjudication, and he should
not be allowed to use this habeas petition as an appeal of that court's nonfinal ruling.
Instead, the State asserts, Stewart should be required to litigate these issues in the
commitment case or in his direct appeal of that case if he is involuntary committed.
The Kansas Supreme Court has long held that a statutory petition for habeas
corpus "is not a substitute for an appeal." State v. Shores, 187 Kan. 492, 493, 357 P.2d
798 (1960). Instead, "[h]abeas corpus is an extraordinary legal remedy, and it should not
be used when relief may be obtained by ordinary procedure." Foster v. Maynard, 222
Kan. 506, 513, 565 P.2d 285 (1977). As the United States Supreme Court explained in
Henry v. Henkel, 235 U.S. 219, 229, 35 S. Ct. 54, 59 L. Ed. 203 (1914), when it found
that a criminal defendant in a federal case could not challenge pretrial rulings via a
federal habeas petition:
"[T]he hearing on habeas corpus is not in the nature of a writ of error, nor is it intended as
a substitute for the functions of the trial court. Manifestly, this is true as to disputed
questions of fact, and it is equally so as to disputed matters of law, whether they relate to
the sufficiency of the indictment or the validity of the statute on which the charge is
based. These and all other controverted matters of law and fact are for the determination
of the trial court. If the objections are sustained or if the defendant is acquitted, he will be
discharged. If they are overruled and he is convicted, he has his right of review. The rule
is the same whether he is committed for trial in a court within the district, or held under a
warrant of removal to another state. He cannot, in either case, anticipate the regular
course of proceeding by alleging a want of jurisdiction, and demanding a ruling thereon
in habeas corpus proceedings. [Citations omitted.]"
Thus, it is "well settled that in the absence of exceptional circumstances . . . the
regular judicial procedure should be followed and habeas corpus should not be granted in
advance of a trial." Jones v. Perkins, 245 U.S. 390, 391, 38 S. Ct. 166, 62 L. Ed. 3585
(1918). This principle makes sense. In most instances, justice is best served by allowing
an original proceeding to run its course without collateral intervention. To hold otherwise
would be to open the floodgates to potential habeas petitions challenging virtually any
pretrial ruling. And while there are limited instances where courts have granted writs of
habeas corpus before trial, those cases are the exception, not the rule. See, e.g., In re
Habeas Corpus Petition by Bowman, 309 Kan. 941, 441 P.3d 451 (2019) (finding
double-jeopardy principles were an extraordinary circumstance to allow a pretrial writ of
habeas corpus when State was going to seek an unlawful second criminal trial); In re
Care & Treatment of Easterberg, 309 Kan. 490, 437 P.3d 964 (2019) (likening a KSVPA
commitment proceeding to a second trial and granting a writ of habeas corpus in an
original action to determine whether the KSVPA trial court had jurisdiction to proceed).
Stewart asserts that his habeas petition is similar to the petition in Easterberg and
thus we should reach a similar result. We agree that there are many similarities between
the two cases: Both Stewart and Easterberg were undergoing KSVPA commitment
proceedings. Both Stewart and Easterberg were charged in previous cases with sexually
violent crimes, but they each entered pleas for crimes that are not listed as sexually
violent offenses in Kansas statutes. See K.S.A. 2020 Supp. 59-29a02(e) (listing sexually
violent offenses). But there are significant differences between the two cases as well.
Most notably, Stewart has been convicted of two other sexually violent offenses (the
1981 attempted rape and the 1983 aggravated-indecent-liberties offense) involving young
children, while Easterberg had not. Thus, the legal question raised in Easterberg
regarding whether Easterberg could be considered for commitment at all is a very
different question than the issue raised in this case.
In order for Stewart's case to be in an analogous procedural circumstance to
Easterberg's, we would have to disregard Stewart's previous convictions. Stewart argues
that preclusion principles require us to do just that since the 2001 KSVPA adjudication
was voluntarily dismissed. But Stewart presented this same argument to the district court
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in the current KSVPA proceeding, and the court found as a factual matter that the
previous case had been dismissed without prejudice—meaning the preclusive principles
Stewart cites do not apply. See Crockett v. Medicalodges, Inc., 247 Kan. 433, 438, 799
P.2d 1022 (1990) (res judicata does not apply when a case is dismissed without
prejudice), overruled on other grounds by Martin v. Naik, 297 Kan. 241, 300 P.3d 625(2013). Thus, Stewart's habeas petition attempts to do just what the Kansas Supreme
Court has long stated that habeas petitions cannot: substitute for an appeal of the district
court's nonfinal factual findings and legal conclusions in the commitment case.
Our review of the transcript of the hearing in this case shows that the district court
judge appreciated the difficult procedural quagmire before him. And with good reason:
Stewart does not allege sufficiently exceptional circumstances that would allow him to
use his habeas petition to collaterally challenge his ongoing commitment proceeding. For
this reason, we conclude—albeit for a different reason than the district court—that
dismissal of Stewart's K.S.A. 60-1501 petition was appropriate.
Affirmed.
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