State v. Stevenson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,454
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LARRY STEVENSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed September 17, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before BRUNS, P.J., SCHROEDER and GARDNER, JJ.
PER CURIAM: Larry Stevenson appeals the district court's revocation of his
probation. We granted Stevenson's motion for summary disposition under Supreme Court
Rule 7.041A (2021 Kan. S. Ct. R. 48). Finding no abuse of discretion, we affirm.
In September 2018, Stevenson pleaded guilty to three counts of misdemeanor
battery. The district court sentenced Stevenson to concurrent six-month jail terms for
each count but granted Stevenson six months' supervised probation. Stevenson did not
appeal.
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Stevenson later admitted to violating his probation in December 2018. The district
court revoked but reinstated Steven's probation under the same terms and conditions.
The State filed a warrant in January 2020, alleging Stevenson had violated the
terms of his probation and committed new offenses. Stevenson pleaded guilty to a new
felony offense in a separate criminal case, 19 CR 1427. As a part of his plea agreement,
Stevenson agreed not to argue against the State's recommended 34-month prison
sentence. In July 2020, the district court accepted the State's recommendation and
sentenced Stevenson to 34 months' imprisonment in 19 CR 1427. Finding Stevenson had
committed a new crime, the district court also revoked Stevenson's probation and ordered
him to serve his six-month jail sentence. The court awarded Stevenson 366 days of jail
credit but noted that Stevenson could not receive duplicate credit for time he had served
while incarcerated for other matters. But even after subtracting any potentially
overlapping time, Stevenson had at least 187 days of jail credit in this case, 18 CR 18, per
the journal entry.
Stevenson timely appeals the revocation of his probation.
Stevenson concedes that a remedy is unavailable because he already finished
serving his sentence, citing State v. Kinder, 307 Kan. 237, 243-44, 408 P.3d 114 (2018)
(probation operates to replace a term of imprisonment and therefore cannot be imposed if
the prison sentence has been completed). Stevenson also cites State v. Benoit, 31 Kan.
App. 2d 591, 593, 97 P.3d 497 (2003), where this court deemed it "impractical" to place a
defendant on probation while ordering the defendant to serve a prison sentence in another
case. The State argues that Stevenson's appeal is moot and requests dismissal, citing State
v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
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Kansas appellate courts do not decide moot questions or render advisory opinions.
Montgomery, 295 Kan. at 840. We review questions of mootness de novo. State v. Roat,
311 Kan. 581, 590, 466 P.3d 439 (2020).
"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 his or her sentence." Roat, 311 Kan. at 593.
The State relies on the journal entry but does not provide us with documentation showing
the Kansas Department of Corrections (KDOC) released Stevenson on the date shown in
the journal entry. And we cannot make such an inquiry into KDOC records on our own.
See State v. Yazell, 311 Kan. 625, 629-31, 465 P.3d 1147 (2020). We therefore decline to
apply the mootness doctrine and instead address the merits. See Roat, 311 Kan. at 590
(characterizing mootness as a prudential doctrine, not a jurisdictional bar to appellate
review).
Stephenson argues that the district court abused its discretion by revoking his
probation. See State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008) (once the State
has proven a violation of the conditions of probation, the decision to revoke probation is
within the district court's sound discretion). A judicial action constitutes an abuse of
discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or
(3) based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
Stephenson does not allege legal or factual error. See K.S.A. 2017 Supp. 22-
3716(b)(3)(B)(iii) (if crime of conviction was a misdemeanor and a violation is
established, the court may revoke defendant's probation); K.S.A. 2017 Supp. 22-
3716(c)(8)(A) (allowing courts to skip intermediate sanctions when a defendant commits
a new felony or misdemeanor while on probation for a felony offense). So Stephenson
bears the burden to convince us that no reasonable person would have taken the view
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adopted by the district court. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430(2018).
Stevenson fails to meet his burden. When Stevenson admitted violating his
probation in December 2018, the district court gave him the benefit of the doubt by
revoking but reinstating Steven's probation under the same terms and conditions. But
when Stevenson again violated the terms of his probation and committed a new felony,
the district court revoked Stevenson's probation and ordered him to serve his six-month
jail sentence. We cannot agree that no reasonable person would have done the same. We
find no error in the district court's decision.
Affirmed.
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