State v. Foster

NOT DESIGNATED FOR PUBLICATION
No. 123,019
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEFFREY R. FOSTER,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed December 23,
2021. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.
PER CURIAM: Jeffrey R. Foster appeals the trial court's decision to revoke his
postimprisonment supervision and order him to serve the underlying sentence. He argues
that the trial court erred in imposing his sentence and in calculating his jail credit.
Because the trial court did not abuse its discretion and because Foster raises the issue of
jail credit for the first time on appeal, we affirm.
1
FACTS
In April 2019, Foster pleaded guilty to driving under the influence (DUI), fourth
offense, in violation of K.S.A. 2018 Supp. 8-1567(b)(1)(E), and abusing toxic vapors, in
violation of K.S.A. 2018 Supp. 21-5712. At the same hearing, Foster also pleaded guilty
in a separate case to additional charges, including another DUI. Foster entered his pleas
together as part of a universal plea agreement. Following the plea agreement, the trial
court sentenced Foster to 48 hours in jail and 3,000 hours of house arrest, followed by a
12-month period of postimprisonment supervision. The underlying sentence was 18
months in jail. The trial court gave Foster 51 days of jail credit for the time he spent in
custody before sentencing.
As one of the conditions of postimprisonment supervision, the trial court directed
Foster not to drive. The trial court also did not authorize supervision officers to impose
internal sanctions. This condition meant that any violation would result in Foster
returning to court for a revocation hearing.
While Foster was on house arrest, he moved to modify the terms of his sentence.
Foster's sentence required that he live under house arrest at an Oxford House sober living
environment. But he was also litigating a child in need of care (CINC) case involving his
two children in hopes of reintegration. One factor hindering reintegration with his
children was the fact that Foster lived in an Oxford House rather than a home of his own.
Thus, Foster sought to modify the condition of his house arrest sentence requiring him to
stay at Oxford House.
At a hearing on his motion, Foster testified that he sought to conform to both the
conditions of his house arrest and the requirements of his CINC case. He testified that he
opened a new Oxford House for men and children, using a loan from Friends of
Recovery. He served as president and treasurer of the new Oxford House in Olathe,
2
which was named after his elder child. Foster also testified about his history of substance
abuse, explaining that he was sober for nearly four years before his relapse in 2018 when
his fiancée passed away and his children were in state custody. This relapse led him to, in
his words, "put the public at risk getting these DUIs." In support of modifying the
conditions of his house arrest, Foster pointed to his continued sobriety, leadership roles,
and community support.
The State opposed modifying the conditions of Foster's house arrest. The State
argued that an ignition interlock device would not be useful here because Foster's DUI
history involved huffing toxic vapors. And the State explained that its motivation in the
plea agreement was the hope that treatment would reduce the risk to public safety by
addressing the underlying cause of Foster's DUIs. The State acknowledged that Foster
had done well and made good progress. But the State argued that Foster needed to remain
in a sober environment because he needed treatment and because the plea agreement
required it.
The trial court denied Foster's motion to modify the conditions of his house arrest
for two reasons. First, a trial court generally loses jurisdiction to modify a sentence once
it is imposed. The trial court was doubtful that it could modify the location where Foster
would serve his house arrest. Second, the trial court agreed with the State that Foster
should remain at Oxford House during his house arrest.
Less than two weeks after the motion to modify hearing, the State moved to
revoke Foster's postimprisonment supervision. The State alleged that Foster violated
several conditions of his postimprisonment supervision, including driving a car and
having contact with another person on supervision.
At a February 2020 hearing on the State's motion to revoke, Foster admitted to
violating his supervision conditions by driving in the probation office parking lot. The
3
State requested Foster serve his underlying sentence. The State recognized that Foster's
act of driving "wouldn't be as big of a deal" if it happened in a different case. But the
State again pointed to the fact that Foster's DUI convictions involved huffing and the
State could not monitor his sobriety with an ignition interlock device. The State also
noted that most of Foster's DUI cases involved wrecks. Foster's probation officer agreed
with the State's recommendation, stating that her greatest concern was that Foster lied
when she confronted him about driving.
Foster highlighted his success during his period of house arrest, his continued
sobriety, his employment, and his progress paying fines and fees to get his driver's
license reinstated. He also talked again about the Oxford House which he started to allow
men to be with their children, explaining that this Oxford House was named after the
older of his two children. Foster's counsel argued that Foster had perfectly complied on
house arrest and this violation on postimprisonment supervision was his first issue. Thus,
Foster requested to serve his supervision term in a residential center rather than serve his
underlying sentence.
The trial court recounted Foster's driving-related prior convictions before it
revoked his supervision and ordered that he serve the underlying sentence.
Foster timely appeals.
ANALYSIS
Is the case moot?
The State argues that this court should dismiss Foster's claims as moot because he
has served his sentence. Foster argues that the State has failed to meet its burden to
establish a prima facie showing of mootness. Because the State has produced no reliable
4
evidence that Foster's claims are moot, as discussed later in this opinion, our only
remaining choice is to reach the merits of Foster's claims.
In general, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). The
mootness doctrine is one of court policy, under which the court is to determine real
controversies about the legal rights of persons and properties that are actually involved in
the case properly before it and to adjudicate those rights in a way that is operative, final,
and conclusive. State v. Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020); see also State v.
Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012); Board of Johnson County Comm'rs v.
Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
"The party asserting mootness generally bears the initial burden of establishing
that a case is moot in the first instance. [Citation omitted.]" Roat, 311 Kan. at 593.
A bright line test, such as a rule that a sentencing appeal is moot if the sentence is
completed, is contrary to Kansas law. 311 Kan. at 592. An issue on appeal will only be
dismissed as moot if it can be shown clearly and convincingly that the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and the judgment would not impact any of the parties' rights. State v. Williams, 298 Kan.
1075, 1082, 319 P.3d 528 (2014). A case is not moot if "it may have adverse legal
consequences in the future." Montgomery, 295 Kan. 837, Syl. ¶ 4.
Appellate courts commonly apply an exception when an issue "'is capable of
repetition and raises concerns of public importance.'" State v. Kinder, 307 Kan. 237, 244,
408 P.3d 114 (2018). "Public importance means more than that certain members of the
general public are interested in the decision of the appeal from motives of curiosity or
because it may bear upon their individual rights or serve as a guide for their future
5
conduct. [Citation omitted.]" State v. Hayden, 52 Kan. App. 2d 202, 206, 364 P.3d 962(2015).
In an appeal solely challenging a sentence, the party asserting mootness may
establish a prima facie showing of mootness by demonstrating that the defendant has
fully completed the terms and conditions of the defendant's sentence. The burden then
shifts to the defendant to show that dismissal would impair a substantial interest or that
an exception to the mootness doctrine applies. Roat, 311 Kan. at 593.
The State asserts that Foster completed his underlying 18-month jail sentence in
June 2021 and therefore this case is moot. To support its claim, the State presents the
Johnson County District Court's record of actions for Foster's case, which includes the
entry "Probation Terminated" on "06/10/2021." Foster argues that the State has failed to
make a prima facie showing of mootness. Our Supreme Court discussed the standard for
sufficiently reliable evidence to show mootness in State v. Yazell, 311 Kan. 625, 465 P.3d
1147 (2020) (Yazell I).
In Yazell I, the State claimed that Corey Leroy Yazell's appeal was moot because
he was released from custody, relying on the Kansas Adult Supervised Population
Electronic Repository (KASPER), a website maintained by the Kansas Department of
Corrections (KDOC). The State also spoke with a KDOC employee over the phone to
confirm the information on KASPER. Our Supreme Court held that information provided
by KASPER was not sufficiently reliable evidence to establish mootness and the State's
hearsay evidence did not fix this defect. The Yazell I court noted the disclaimer on the
KASPER website stating that it made no claim to authenticity or reliability. Thus, the
Yazell I court held that this court had erred in dismissing Yazell's case as moot. 311 Kan.
at 631.
6
On remand to this court, the State submitted a notice of change of custodial status,
attaching a "'Certification of Time Served.'" State v. Yazell, No. 116,761, 2021 WL
402078, at *3 (Kan. App. 2021) (unpublished opinion) (Yazell II), rev. denied 314 Kan.
__ (September 30, 2021). The signed sworn certification from the KDOC records
custodian declared and certified that the record of Yazell's release contained true and
correct information. This court held that the State provided sufficient evidence to make
its prima facie case, citing State v. Castle, 59 Kan. App. 2d 39, 46-47, 477 P.3d 266(2020). This court ruled that Yazell's case was moot and that no exceptions to mootness
applied. Yazell II, 2021 WL 402078, at *4-5.
Foster argues that the State's use of the Johnson County District Court's Record of
Action fails to meet the State's burden as established in Yazell I. Foster asserts that the
disclaimer on the Johnson County District Court's website resembles the KASPER
disclaimer discussed by the Yazell I court. The Yazell I court quoted the KASPER
website as follows:
"'The information contained on this website is subject to disclosure pursuant to the
Kansas Open Records Act (K.S.A. 45-221). While the information is believed to be
accurate, the State of Kansas, the Kansas Department of Corrections, their employees or
officers, make no warranties, express or implied, including warranties of merchantability
and fitness for a particular purpose. Further the Kansas Department of Corrections
assumes no legal liability or responsibility for the accuracy, completeness, or usefulness
of any information, product, or process disclosed, nor represents that its use would not
infringe on privately owned rights.' https://kdocrepository.doc.ks.gov/kasper/search/
disclaimer." 311 Kan. at 631.
While KASPER's disclaimer states that "the information is believed to be
accurate," the Johnson County District Court's disclaimer advises that the information is
provided "as is" with no affirmations of accuracy:
7
"Disclaimer: The Johnson County District Court declares that the information
provided on and obtained from this site does not constitute the official record of the
Court. The information contained in this web-site is provided as a service to the Internet-
Community. Any user of this information is hereby advised that it is being provided as is.
The information provided may be subject to errors or omissions. Visitors to this site agree
that the Johnson County District Court is not liable for errors or omissions of any of the
information provided. Furthermore, this site provides links to sites administered by other
organizations for which the Johnson County District Court cannot warrant the accuracy.
The information provided on this site should not be used as a substitute for advice of
legal counsel." Disclaimer, jococourts.org/disclaimer.aspx.
The State claims that Foster's sentence completion is established by the entry in
the Johnson County District Court's record of actions stating, "Probation Terminated."
But our Supreme Court in Yazell I determined that a printout from KASPER was
insufficient. And KASPER includes information to help identify the correct prisoner
including name, aliases, birthdate, height, and weight. KASPER also will display a
current status, such as "Incarcerated" or "Local Detention," and shows when the
information was last updated. But the State here relies on a system with less information.
The record of actions only shows "Probation Terminated" on June 10, 2021, and is not
explicit about whether this means Foster was released from custody. In sum, our Supreme
Court directed the appellate prosecutor in Yazell I to provide the appellate courts with
more, but the appellate prosecutor here provides this court with less.
Thus, the Johnson County District Court website provides less information than
KASPER. But also, reliability of information is at issue. The Yazell I court rejected the
use of KASPER to verify that a prisoner has been released from custody, stating that it is
unreliable evidence. 311 Kan. 625, Syl. ¶ 1. Comparing the disclaimers suggest that the
documentation that the State presents here is less reliable. Because the Yazell I court
rejected KASPER as unreliable evidence, it chose not to address the catastrophic results
that come with dismissing an appeal based on unreliable evidence.
8
The danger is that an appellate court could dismiss cases as moot under the
mistaken belief that appellants have served their sentences. Nevertheless, the appellants
are still in custody. Then, appellants have no recourse but to remain in custody until their
appeal is refiled.
Foster's arguments on mootness do not resolve the issue because no exceptions to
mootness apply here. Foster asserts that his argument for counting house arrest as jail
credit is capable of repetition while evading review and it presents a question of public
importance. But, in other contexts, Kansas appellate courts have determined that time
spent on house arrest does not count toward jail credit. Thus, the issue has not evaded
review and it is not an issue of public importance. Because no exceptions apply, this case
is moot, and we should dismiss if Foster has completed his sentence. If Foster has not
completed his sentence, then we need to address Foster's claims.
So the State's lack of reliable evidence for its prima facie case places us in a
difficult position. As a factual matter, only two possibilities exist: either Foster has
completed his sentence, or he has not. Error is possible in either case. If he has completed
his sentence, then our adjudication of his claims acts as an advisory opinion because there
is no longer a real controversy about Foster's legal rights. See Roat, 311 Kan. at 590.
Kansas courts lack the constitutional authority to issue advisory opinions. Jarvis v.
Kansas Dept. of Revenue, 312 Kan. 156, 166, 473 P.3d 869 (2020). If Foster has not
completed his sentence, then we are required to adjudicate the case on its merits. In this
case, the error would be to dismiss Foster's appeal as moot when it is not.
But Yazell I allows us to err on the side of adjudicating the merits. The Yazell I
court remanded for further proceedings, increasing the appellate prosecutor's burden to
produce more reliable evidence. As discussed here, the Yazell I court was correct to
increase this burden. Records may be inaccurate in describing when a prisoner has
completed their sentence, as well as on the separate question of whether the prisoner has
9
been released. Kansas appellate courts require accurate and reliable evidence to show that
a case is moot. The appellate prosecutor in Yazell II had to produce additional evidence
on remand, and such evidence is required here. Because the State produced no reliable
evidence that Foster's claims are moot, our only remaining choice is to reach the merits of
Foster's claims even if this requires us to issue an advisory opinion.
Did the trial court abuse its discretion in ordering Foster to serve his underlying
sentence?
Foster argues that the trial court abused its discretion when it revoked his
supervision because no reasonable person would order him to serve his underlying
sentence. The State argues that Foster's criminal history of 23 convictions, almost all
driving-related, means that a reasonable person could revoke his supervision when he
violated the no-driving condition of his supervision.
An appellate court reviews the trial court's revocation of an offender's probation
for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020).
Felony DUI postimprisonment supervision is akin to probation and appellate courts
review revocation for an abuse of discretion. State v. Castillo, 54 Kan. App. 2d 217, 227,
397 P.3d 1248 (2017). "A judicial action constitutes an abuse of discretion if: (1) no
reasonable person would take the view adopted by the trial court; (2) it is based on an
error of law; or (3) it is based on an error of fact. [Citation omitted.]" State v. Willis, 312
Kan. 127, 133, 475 P.3d 324 (2020).
Foster does not maintain that the trial court erred on either the facts or the law.
Instead, Foster asserts that several factors undermined the reasonableness of the trial
court's decision to the extent that no reasonable person would have revoked his
supervision. Foster notes that a jail sentence was not the only remedy available to the
court. Foster contends that the trial court had the better option of placing him in the more
10
restrictive environment of a residential community as an intermediate step between his
supervision and jail time. Foster maintains that a residential community would have
better served his continued sobriety and success in the community and thus no reasonable
person would have ordered a jail sentence in light of the other factors. And the other
factors that Foster cites are the nature of the violation and his success in rehabilitation.
First, Foster argues that the violation was minor and understandable. He asserts
that his girlfriend was on medication from oral surgery she had the previous day and so
he drove her to her probation appointment, which coincided with his own. He furthers
claims that he made an understandable mistake because he believed that he had
permission. Foster contends that, while he was on house arrest, he asked if he could go
with his girlfriend to a medical appointment and his house arrest officer permitted it.
Foster claims that when he switched from house arrest to postimprisonment supervision,
he assumed that he could drive his girlfriend to appointments. The State, however,
clarified that the house arrest officer gave permission for Foster to attend his girlfriend's
medical appointment but said nothing about driving her.
Second, Foster highlights his successes on house arrest. He had maintained
sobriety for over 20 months. He completed house arrest at Oxford House without
incident. His work at Oxford House established a new location for men with children. He
integrated with and led a support group. And he maintained employment, making
payments toward his costs and fines.
But the trial court acknowledged Foster's long history of driving-related crimes.
The trial court elaborated that it adopted the recommendations of the plea agreement
specifically because the condition of not driving was an integral part of the agreement.
The bottom line is that the trial court explained that Foster violated what it considered the
most important condition of his supervision. And in the State's motion to revoke, it
alleged that Foster had committed the new crime of driving while suspended. Early in the
11
revocation proceedings, Foster stipulated to driving and later he asserted that he was
working to reinstate his license. Given Foster's history of driving violations, the trial
court reasonably revoked his supervision when he violated his conditions of supervision
by driving without a valid license.
Did the trial court err by omitting Foster's house arrest time from his jail credit
calculations?
For the first time on appeal, Foster argues that the trial court erred in awarding jail
credit and asks this court to remand with instructions to include the 125 days that he
served on house arrest as jail credit. The State argues that time spent on house arrest does
not count toward jail credit.
Generally, issues not raised before the trial court cannot be raised on appeal. State
v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are several exceptions to the
general rule that a new legal theory may not be asserted for the first time on appeal,
including the following: (1) that the newly asserted theory involves only a question of
law arising on proved or admitted facts and is finally determinative of the case, (2) that
consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights, and (3) that the trial court was right for the wrong reason. State v.
Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). Nevertheless, even if an exception is
invoked "[t]he decision to review an unpreserved claim under an exception is a prudential
one. Even if an exception would support a decision to review a new claim, we have no
obligation to do so. [Citations omitted.]" State v. Gray, 311 Kan. 164, 170, 459 P.3d 165(2020).
Foster concedes in his brief that he did not raise this issue of jail credit before the
trial court. But he contends that we may reach the issue for the first time on appeal
because the question of whether he can receive jail credit for house arrest is "purely a
12
question of law that is determinative of the issue." We disagree that this exception to the
general rule applies.
We know that while sentencing is pending, time spent on house arrest does not
accrue as jail credit. State v. Guzman, 279 Kan. 812, 815-16, 112 P.3d 120 (2005). We
also know that during probation, time spent on house arrest does not accrue as jail credit.
See State v. Cordill, 24 Kan. App. 2d 780, 781, 955 P.2d 633 (1997); State v. Williams,
18 Kan. App. 2d 424, 430-31, 856 P.2d 158 (1993). But Foster argues that house arrest as
part of confinement in felony DUI cases differs from house arrest pending sentencing or
house arrest during probation. Even if we assume, without deciding, that he is correct, it
is impossible for us to determine if Foster was improperly denied jail time credit for his
time on house arrest given the record before us.
This appeal is related only to Foster's conviction for a fourth DUI offense. A
person convicted of a fourth or subsequent DUI "shall be sentenced to not less than 90
days nor more than one year's imprisonment and fined $2,500." K.S.A. 2018 Supp. 8-
1567(b)(1)(E). The court may place an offender on a house arrest program only after the
offender "has served 72 consecutive hours' imprisonment." K.S.A. 2018 Supp. 8-
1567(b)(1)(E). The time on house arrest must be a minimum of 2,160 hours, but if the
court makes any exceptions to remaining within the offender's residence, those hours are
not counted as part of the required 2,160 hours. Moreover, a person "shall not" be able to
begin probation or have a reduced sentence until they have served "at least 90 days'
imprisonment." K.S.A. 2018 Supp. 8-1567(b)(1)(E).
Here, according to the sentencing journal entry, Foster was sentenced to 12
months' incarceration, to be released to 12 months of postimprisonment supervision after
serving 48 hours in jail or 3,000 hours of house arrest. We pause to note that the 48-hour
minimum is the sentence statutorily required for a third time DUI offender, not a fourth
time offender. K.S.A. 2018 Supp. 8-1567(b)(1)(D). He was also given a consecutive
13
sentence of six months on the toxic vapors charge for a total underlying sentence of 180
days. Although the sentencing journal entry noted that Foster potentially had 51 days of
jail credit, it also noted that those days were not awarded. Nevertheless, at the sentencing
hearing, the trial judge noted—contrary to the journal entry—that Foster had been given
51 days' credit. The judge then noted that "[u]pon my reading of the plea agreement, I'm
assuming shock time as well as the house arrest has all been satisfied, he's to continue
now with the 3,000 hours of house arrest concurrently." The Order of Post Imprisonment
Supervision noted that it would begin after any release from custody or house arrest and
contained, as a condition, that he serve 3,000 hours of house arrest. Yet, the trial judge
noted at sentencing that Foster was "to begin 3,000 hours of house arrest from today.
That's a condition, and then the post-imprisonment supervision is to follow the time when
the house arrest is completed."
When Foster's postimprisonment supervision was later revoked, the journal entry
awarded him 184 days of jail credit, which did not include any of the 51 days that was
previously noted by the trial judge at the sentencing hearing but denied in the journal
entry of sentencing. To add to the confusion, Foster's attorney told the court that Foster
had only served 51 days, with the balance of 18 months remaining.
Without clarification and fact-finding by the trial judge, it is impossible for us to
determine whether any or all the 3,000 hours of house arrest ordered in this case—for
which Foster seeks jail credit—was part of Foster's mandatory DUI sentence or a
condition of post incarceration supervision or whether it was included in the 184 days of
jail credit Foster was granted.
As our Supreme Court recently warned, "[a]n appellate court abuses its discretion
when invoking an exception to the general rule against addressing an issue for the first
time on appeal if consideration of the unpreserved issue would require the court to make
14
factual findings." State v. Allen, 314 Kan. ___, Syl. ¶ 5, 497 P.3d 566 (2021). Such is the
case here.
Because Foster raises the issue of jail credit for the first time on appeal and
because the consideration of Foster's jail credit argument requires fact-finding that we
must not engage in on appeal, we decline to review this issue. But see, State v. Smith, 309
Kan. 977, Syl. ¶ 1, 441 P.3d 1041 (2019) ("A criminal defendant's failure to raise the
issue of jail credit on direct appeal does not foreclose a motion under K.S.A. 22-
3504[2].")
For the preceding reasons, we affirm.
Affirmed.
15