State v. Swartz

NOT DESIGNATED FOR PUBLICATION
No. 124,549
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEFFREY DALE SWARTZ JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed October 7, 2022.
Appeal dismissed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., GREEN and HILL, JJ.
PER CURIAM: Jeffrey Dale Swartz Jr. appeals his sentence for felony theft. He
argues that the district court improperly included a previous conviction for reckless
criminal threat as part of his criminal history at sentencing. We do not reach the merits of
this claim, however, because Swartz's case is moot—a decision would have no effect on
Swartz's rights or otherwise affect the outcome of his case. We therefore dismiss the
appeal.
Swartz pleaded guilty to felony theft in 2021. The presentence investigation report
submitted in that case showed that Swartz had been previously convicted of five person
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felonies, three nonperson felonies, two person misdemeanors, and three nonperson
misdemeanors. Among these previous crimes, Swartz had pleaded guilty to criminal
threat in 2018.
Before sentencing, Swartz filed a motion objecting to the inclusion of the previous
criminal-threat conviction in his criminal history. Swartz correctly pointed out that the
Kansas Supreme Court had recently held that the offense of reckless criminal threat was
unconstitutionally overbroad. See State v. Boettger, 310 Kan. 800, 450 P.3d 805(2019), cert. denied 140 S. Ct. 1956 (2020). Based on this decision, Swartz argued that
his criminal-threat conviction should not be considered as part of his criminal history. He
also pointed out that one felony listed in the presentence investigation report—aggravated
escape from custody—was improperly classified as a person crime when it is actually a
nonperson offense.
The State objected to Swartz's motion. The State agreed that Swartz's conviction
for aggravated escape from custody should be classified as a nonperson offense. But the
State asserted that, even with that change, Swartz had a criminal-history score of A
regardless of whether his criminal-threat conviction was excluded because he had been
previously convicted of three other person felonies. See K.S.A. 2021 Supp. 21-6804(a) (a
person with a criminal history of A has three or more previous convictions for person
felonies). The State also argued that Swartz's conviction was for intentional criminal
threat, and not the reckless version of that crime, because the plea transcript in his
criminal-threat case showed that he "verbally threaten[ed] to kill" the victim.
After hearing evidence relating to Swartz's criminal-threat conviction, the district
court found that he had previously been convicted of intentional—not reckless—criminal
threat. The court thus denied Swartz's motion. In doing so, the court emphasized the
futility of Swartz's challenge because Swartz would have a criminal-history score of A
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regardless of whether the criminal-threat conviction were included. The court sentenced
Swartz to 16 months' incarceration and 12 months' postrelease supervision.
Swartz appealed this sentence, continuing to challenge the inclusion of his
criminal-threat conviction in his criminal history. Shortly before the State filed its
response brief, it filed a Notice of Custodial Change noting that Swartz had completed his
prison term and was now on postrelease supervision. In its brief, the State argued that this
change, as well as the other person felonies in Swartz's criminal history, rendered the
appeal moot.
Swartz's brief challenges the district court's findings regarding the criminal-threat
conviction. He argues that the procedure the district court employed at sentencing
violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000), because it relied on evidence that had not been presented at trial or at Swartz's
plea hearing in this case to determine his sentence. We note that our reviewing courts
have held that the determination of a person's criminal history, including findings relating
to his or her previous convictions, does not violate the Kansas or United States
Constitutions. See 530 U.S. at 490 (noting that Sixth Amendment does not require courts
to submit prior convictions to a jury for sentencing purposes); State v. Ivory, 273 Kan. 44,
46-48, 41 P.3d 781 (2002) (same); see also State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487
P.3d 750 (2021) (Section 5 of the Kansas Constitution Bill of Rights "does not guarantee
defendants the right to have a jury determine the existence of sentence-enhancing prior
convictions under the revised Kansas Sentencing Guidelines Act."). We do not consider
the merits of Swartz's arguments further, however, because we agree with the State that
the issue before us is moot.
Unlike the legislative and executive branches, Kansas courts do not have the
constitutional authority to issue advisory opinions. State ex rel. Morrison v. Sebelius, 285
Kan. 875, 898, 179 P.3d 366 (2008). Instead, courts are called on to decide concrete
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questions that will have an actual impact on the parties before us—to "'determine real
controversies relative to the legal rights of persons and properties which are actually
involved in the particular case properly brought before it and to adjudicate those rights in
such manner that the determination will be operative, final, and conclusive.'" State v.
Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020) (quoting State v. Hilton, 295 Kan. 845,
849, 286 P.3d 871 [2012]).
As a corollary to this principle, even if a court case began with an active dispute,
courts will generally not continue to hear the case if the issues presented become
"moot." Roat, 311 Kan. at 584. A party can seek dismissal on mootness grounds by
clearly and convincingly showing that "'the actual controversy'" in the case has ended,
and that any judgment that could be entered "'would be ineffectual for any purpose'" and
"'would not impact any of the parties' rights.'" 311 Kan. at 584.
The party asserting that issues in a case have become moot—here, the State—must
make a prima-facie showing that the actual controversy in the case has ended. 311 Kan.
581, Syl. ¶ 6. The State makes this showing in two ways.
First, the State correctly points out that Swartz's criminal-history score would be
A regardless of whether the criminal-threat conviction were included in that calculation.
Swartz has been previously convicted of three other person felonies. This means that the
criminal-threat conviction had no practical effect on his sentence. Swartz does not
challenge this fact on appeal.
Second, Swartz has completed the prison term of his sentence and is now serving
his postrelease-supervision term. In Kansas, the duration of a person's postrelease-
supervision term is determined by the person's crime of conviction, not by his or her
criminal history. Thus, a change in Swartz's criminal history cannot affect his sentence in
any meaningful way. As a previous panel of this court noted under similar circumstances,
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further discussion regarding criminal history would have "[no] impact on [Swartz's]
current or future rights," and "the only judgment that could be entered would be
ineffectual for any purpose." State v. Castle, 59 Kan. App. 2d 39, 48, 477 P.3d 266(2020), rev. denied 313 Kan. 1043 (2021).
Swartz offers no explanation why this court should continue to hear his criminal-
history challenge despite this futility. Because resolution of the issue raised would
provide no meaningful relief, we dismiss Swartz's appeal as moot.
Appeal dismissed.
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