State v. Ward

NOT DESIGNATED FOR PUBLICATION
No. 116,545
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT WARD,
Appellant.
MEMORANDUM OPINION
Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed January 22,
2021. Appeal on remand dismissed.
Kasper C. Schirer and Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for
appellant.
Brandon L. Jones, county attorney, Stephen A. Hunting, former county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.
PER CURIAM: Robert Ward's appeal returns to this court on remand from the
Kansas Supreme Court with directions to reconsider whether the appeal is moot under the
guidance provided in State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020). See State v.
Ward, 311 Kan. 619, 624, 465 P.3d 1143 (2020). For the reasons explained in this
opinion, we again dismiss Ward's appeal as moot.
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FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 2013, Ward pled no contest to one count of criminal threat and two
counts of assault in 12CR367. On August 12, 2013, the district court imposed a
controlling sentence of 14 months' imprisonment but granted probation for 12 months to
be supervised by community corrections. One condition of Ward's probation was for him
to have no violent contact with the victim, J.D., his girlfriend.
In January 2014, Ward was arrested for committing domestic battery against J.D.,
so the State moved to revoke his probation. The State charged Ward for the alleged 2014
domestic battery in 14CR24. After conducting a preliminary hearing at which J.D.
testified, the district court bound Ward over for trial.
On August 25, 2014, the district court held an evidentiary hearing on the alleged
probation violation in 12CR367. Ward was represented by counsel. Ward's probation
officer testified about the affidavit he filed to revoke Ward's probation based on the
domestic battery arrest. Next, J.D. testified, but she recanted her allegation that Ward had
physically assaulted her. The prosecutor impeached J.D.'s testimony by asking her
questions about her statements at the preliminary hearing. Next, Detective Jeremi
Thompson of the Franklin County Sheriff's Office testified about his investigation into
the domestic battery report including his interview with J.D. at the hospital. According to
Thompson, J.D. had visible bruising and swelling on her face and she explained to
Thompson that Ward had caused the injuries by hitting her in the face.
Ward's counsel thoroughly cross-examined the witnesses and argued there was
insufficient evidence to prove the alleged probation violation mostly because J.D. was
recanting her original statements. But the district court found that J.D.'s testimony at the
hearing was not credible and found "by a preponderance of the evidence that [Ward] did
indeed violate the terms and conditions of his probation." The district court asked
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whether the new statutory intermediate sanctions applied to the case, and after hearing
from counsel, the judge stated that "this graduated sanction . . . stuff[] is extremely
confusing." The district court found that it would "revoke" Ward's probation and ordered
him to serve 60 days shock time in the county jail after which his probation would be
extended for 12 months. The journal entry from the hearing stated that Ward's probation
was "modified" and extended for 12 months after he served 60 days in jail.
In February 2015, the State again moved to revoke Ward's probation, alleging that
he had violated the terms of his probation by breaking the law, pointing to his recent
arrest for criminal threat, violation of a protection order, endangering the welfare of a
child, domestic battery, and criminal damage to property. The State charged Ward with
these crimes in 15CR52.
On May 13, 2015, under a global plea agreement, Ward pled no contest to
criminal threat in the new case, which led to the district court revoking his probation in
12CR367 and ordering him to serve the underlying 14-month prison sentence. The next
month, the district court sentenced Ward in 15CR52 to 17 months' imprisonment, to be
served consecutively to the sentence in 12CR367. Under the plea agreement, the district
court dismissed 14CR24 with prejudice. Ward did not appeal his probation revocation in
12CR367 or his conviction and sentence in 15CR52.
From July 2015 to February 2016, Ward filed several pro se motions and letters
with the district court in 12CR367, including a motion to correct illegal sentence,
asserting that the district court had violated his constitutional rights when it found that he
had violated his probation in 2014 based on the domestic battery. Ward did not dispute
his 2015 probation violation, but he asserted that he would not have been on probation in
12CR367 in 2015 had the district court not improperly extended that probation in 2014.
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On March 4, 2016, Ward filed a handwritten "Petition for Relief Pursuant to
K.S.A. 60-1507." Ward filed this pleading under 12CR367, and it was never docketed as
a separate civil case. In the motion, Ward repeated his earlier arguments and asserted a
new claim that his counsel was ineffective at the 2014 probation violation hearing. Ward
based this claim on several allegations, including that his attorney was not prepared for
the hearing and failed to inform him of his right to appeal. For his ultimate relief, Ward
asked the district court "to vacate, set aside, or correct [his] sentence" in 12CR367.
On July 18, 2016, the district court held a hearing on Ward's motion to correct
illegal sentence and his K.S.A. 60-1507 motion. Ward did not attend in person but was
represented by new counsel. After hearing statements from counsel, the district court
summarily dismissed the motions. Ward appealed the dismissal.
Ward filed a brief in this court and argued "the district court erred by summarily
dismissing [his] motions." After receiving the State's brief, this court ordered Ward to
show cause why his appeal should not be dismissed as moot because it appeared that he
had completed his sentence, citing State v. Montgomery, 295 Kan. 837, 286 P.3d 866(2012). In response, Ward acknowledged he had completed his sentence, but he argued
that his case was not moot "because the finding that he violated the terms of his probation
may be used against [him] in the future to deny him probation or to possibly subject him
to an upward departure sentence." He distinguished Montgomery by asserting that unlike
the defendant in that case, Ward has consistently disputed the allegation of domestic
battery that was made against him at the 2014 hearing. This court noted Ward's response
but dismissed the appeal as moot "[b]ecause he has completely served his sentence."
The Kansas Supreme Court granted Ward's petition for review and remanded the
case to this court for reconsideration under Roat, 311 Kan. 581, which it decided the
same day. Ward, 311 Kan. at 624. More specifically, our Supreme Court remanded this
case to this court "so that it may reconsider the arguments that Ward presented in his
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response to the panel's show cause order under the guidance provided in Roat." 311 Kan.
at 624. Three justices dissented based on the rationale in State v. Tracy, 311 Kan. 605,
466 P.3d 434 (2020). Ward, 311 Kan. at 624. The dissenting justices found that under the
facts and arguments presented, Ward's "case should be dismissed." 311 Kan. at 624.
IS WARD'S APPEAL MOOT UNDER THE ANALYSIS IN ROAT?
Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. Roat, 311 Kan. at 590. Mootness is "a prudential doctrine" that
recognizes that a court's role "'"is 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.'" [Citations omitted.]" 311 Kan. at
590. "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."' [Citation
omitted.]" 311 Kan. at 584.
The party asserting mootness generally bears the initial burden of establishing that
a case is moot. 311 Kan. at 593. This burden can be met by showing "that the defendant
has fully completed the terms and conditions of his or her sentence." 311 Kan. at 593.
Once a prima facie showing of mootness has been established, the "burden then shifts to
the party opposing the mootness challenge 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.
Ward candidly admits that he has completed his underlying prison sentence. But in
Roat, our Supreme Court rejected a bright-line test for mootness based on an individual
completing his sentence. See 311 Kan. at 592. Thus, we must conduct a particularized
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analysis to determine 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.' [Citation omitted.]"
(Emphases added.) 311 Kan. at 592. Only under those circumstances should we dismiss
Ward's appeal as moot.
Consideration of a party's rights and the effect of a judgment on those rights is not
limited to the case at hand; courts must examine the collateral effects on rights and the
preservation of rights for future litigation. 311 Kan. at 594. But our Supreme Court in
Roat limited the consideration to "vital, or substantial, right[s] requiring a judgment in
this appeal." 311 Kan. at 596. It also noted that "[m]ere stigma or 'rightness' is
insufficient to justify continuing to exercise jurisdiction over an appeal." 311 Kan. at 599.
Our Supreme Court cautioned: "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. And appellate courts
must analyze and evaluate those arguments before exercising the prudential authority to
dismiss appeals because of mootness." 311 Kan. at 601.
Because mootness is a prudential doctrine that does not implicate the court's
jurisdiction over the case, the doctrine is subject to exceptions. 311 Kan. at 590. One
exception to the mootness doctrine is when the issue being litigated is capable of
repetition and raises concerns of public importance. 311 Kan. at 590. Ward does not
argue that any exception to the mootness doctrine applies in his case.
As stated above, Ward argued in his response to the show cause order that his
appeal is not moot because "the finding that he violated the terms of his probation [by
committing domestic battery in 2014] may be used against [him] in the future to deny
him probation or to possibly subject him to an upward departure sentence." He cites State
v. Snow, 40 Kan. App. 2d 747, 757, 195 P.3d 282 (2008), superseded by statute on other
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grounds as recognized in State v. Pearce, 51 Kan. App. 2d 116, 118, 342 P.3d 963(2015), which recognizes that nonamenability to probation is a valid nonstatutory factor
that may support an upward sentencing departure. 40 Kan. App. 2d at 756-57.
Also, in his response to this court's show cause order, Ward distinguished his case
from Montgomery by asserting that unlike the defendant in that case, he has consistently
disputed the allegation of domestic battery that was made against him at the 2014
hearing. In Montgomery, in finding the defendant's appeal from his probation revocation
to be moot after he completed his sentence, the court observed that the defendant did not
dispute that he had violated the terms of his probation; he challenged only the sanction
for that violation. 295 Kan. at 844. The Montgomery court reasoned that any future court
considering whether the defendant was amenable to probation would focus on the fact
that he had violated his probation, not merely how he was sanctioned for the violation.
295 Kan. at 844. Based on the distinction between his case and Montgomery, Ward
argued in his response to the show cause order that because he "challenges the fact that
he violated the terms and conditions of his probation, rather than merely complaining
about the resulting punishment, this Court should not dismiss the case as moot."
We agree with Ward that his case is distinguishable from Montgomery. But for
reasons we will explain, that distinction alone does not prevent this appeal from being
dismissed as moot. First, Ward's argument against mootness rests on the premise that he
will again be a defendant in criminal proceedings, that he will be convicted, that the case
will proceed to sentencing, and that the sentencing court will consider his 2014 probation
violation and find that it shows that Ward is unamenable to probation. This scenario is
speculative and purely hypothetical, and whether it occurs is completely up to Ward. The
best way for Ward to prevent it from happening is for him to do what is expected of any
other citizen, which is to abide by the law and not commit any more crimes.
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Second, even if Ward commits another crime, the determination of whether he is
amenable to probation is a matter within the discretion of a future sentencing court. Thus,
it is not inevitable that a future sentencing court would find that Ward is unamenable for
probation based only on his 2014 probation violation. It is just as likely, for instance, that
a future sentencing court might find that Ward is unamenable for probation based on his
31 prior convictions listed in his presentence investigation report. As the court stated in
Roat: "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." (Emphasis added.) 311 Kan. at 601.
Third, even if Ward commits another crime and even if the sentencing court
considers whether his 2014 probation violation renders him unamenable to probation,
Ward would still have the chance to argue that the violation should not weigh against him
in deciding whether probation should be granted. In this sense, Ward's hypothetical
scenario is like the scenario asserted in Tracy, 311 Kan. 605. In that case, the defendant
challenged the criminal history classification of a prior out-of-state conviction, but while
his appeal was pending, he completed his sentence that had been calculated based in part
on that classification and was released from custody. Our Supreme Court rejected the
defendant's argument that his appeal was not moot because a future court might consider
the classification binding, holding that he could object to his criminal history during any
future proceedings in which it is relevant. 311 Kan. at 608-09.
To begin to sum up, we reject Ward's assertion that an appeal challenging a
probation violation finding, as opposed to the sanction imposed for the violation, can
never be found to be moot. Granted, such an appeal does not automatically become moot
when the defendant completes his or her sentence. But under the facts presented here, we
find that Ward's claim involves the sort of remote and abstract harm that is too indefinite
to refute a finding of mootness. Stated differently, Ward's claim does not present a "vital,
or substantial, right requiring a judgment in this appeal." Roat, 311 Kan. at 596.
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Finally, although Ward did not make the argument in his response to the show
cause order, his case is distinguishable from Montgomery and most other published cases
addressing mootness because Ward is seeking to bring a collateral challenge to his
sentence based on an ineffective assistance of counsel claim. If we dismiss Ward's appeal
as moot, then his ineffective assistance of counsel claim remains unresolved. But Ward's
ineffective assistance of counsel claim was only a means to an end. In his ultimate claim
for relief in his K.S.A. 60-1507 motion, Ward asked the district court "to vacate, set
aside, or correct [his] sentence" in 12CR367. Ward has served his sentence and even if
his ineffective assistance of counsel claim has merit, we cannot give back to Ward the
time he has already served. Ward's only argument that his appeal is not moot is because
the finding that he violated his probation in 2014 might be used to deny him probation in
a hypothetical future case. The nature of Ward's claim of ineffective assistance of counsel
does not change the fact that in the end, he fails to meet his burden to show a non-
speculative harm that he will suffer if we do not address his claim on appeal.
Considering the arguments under the guidance provided in Roat, we find that
Ward has failed "to show the existence of a substantial interest that would be impaired by
dismissal" of his appeal. 311 Kan. at 593. Moreover, Ward does not argue that any
exception to the mootness doctrine applies in his case. Based on the arguments presented
in Ward's response to the show cause order, we dismiss his appeal as moot.
Appeal on remand dismissed.
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