State v. Stotts ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,459
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PAUL LEE STOTTS,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed February 25, 2022.
Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., SCHROEDER, J., and JAMES L. BURGESS, S.J.
POWELL, J.: After finding Paul Lee Stotts violated the terms and conditions of his
probation, the district court imposed a 180-day intermediate prison sanction. Stotts now
appeals, claiming the district court abused its discretion by imposing the sanction. We
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
For crimes he committed on May 7, 2015, and as part of a plea agreement with the
State, Stotts pled no contest to attempted robbery and battery. At the sentencing hearing
conducted on September 10, 2019, the district court imposed a 29-month prison sentence
but granted Stotts a dispositional departure to probation for a period of 24 months.
On June 10, 2020, the State moved to revoke Stotts' probation, alleging he violated
his probation conditions by failing to refrain from violating the law; for testing positive
for marijuana, methamphetamine, cocaine, and alcohol; and for failing to obtain a
substance abuse evaluation. Stotts stipulated to the violations, and the district court
imposed a 30-day jail sanction, ordered a mental health evaluation, and extended his
probation 24 months. The district court also warned Stotts this was his last chance.
On August 27, 2020, the State again sought to revoke Stotts' probation, this time
alleging he had violated the sanctions imposed and tested positive for illegal drugs. At the
November 3, 2020 evidentiary hearing, Stotts' probation officer testified Stotts was
unsuccessfully discharged from Serenity House and had submitted a positive urine
analysis (UA) test for marijuana, amphetamine, methamphetamine, and MDMA. Stotts
testified he left Serenity House because he was having an issue with bed bugs. Stotts
admitted to using the drugs but claimed he got them from another person when they were
both quarantined in a hotel after his roommate from the Oxford House—another clean-
living environment Stotts entered after Serenity House—contracted Covid-19.
The district court found Stotts in violation of the terms and conditions of his
probation. The State recommended the district court impose a 180-day intermediate
prison sanction, while Stotts requested a 120-day sanction. When the district court was
making its decision, Stotts' probation officer confirmed Stotts had already served a three-
day intermediate jail sanction. The district court ordered a 180-day sanction because it
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had originally granted Stotts probation after a dispositional departure and the district
court had told Stotts this was his last chance at the last probation violation hearing. The
district court again extended Stotts' probation by 24 months.
Stotts timely appeals.
ANALYSIS
Stotts argues the district court erred in imposing a 180-day intermediate prison
sanction for his probation violation because he had dual diagnoses of mental health
illness and substance abuse disorder, his living conditions at the Serenity House were
unsanitary, and Covid-19 forced him to quarantine at a hotel where he relapsed into drug
use. The State counters Stotts' appeal is moot because he has completed his intermediate
sanction. Alternatively, the State argues the sanction was appropriate because Stotts had
been granted a dispositional departure and was warned at his last violation hearing that it
was his last chance.
Mootness
The State has provided us with a custodial status notification showing Stotts has
completed serving his intermediate sanction and, for this reason, argues Stotts' appeal is
moot. Stotts does not contest this fact but responds to the State's mootness argument by
asserting a live issue exists because, if we agree with him, he could be given the 180-day
sanction at a future probation violation hearing.
Mootness is a legal question which we review de novo. State v. Roat, 311 Kan.
581, 590, 466 P.3d 439 (2020). Appellate courts do not generally decide moot questions
or issue advisory opinions. However, "an appeal will not be dismissed as moot unless it is
clearly and convincingly shown the actual controversy has ended, the only judgment that
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could be entered would be ineffectual for any purpose, and it would not impact any of the
parties' rights. [Citations omitted.]" State v. Tracy, 311 Kan. 605, 607-08, 466 P.3d 434(2020). Mootness is a discretionary policy used by the courts to avoid unnecessary issues
but allows a court to consider an issue "when judicial economy would benefit from a
decision on the merits." Roat, 311 Kan. at 587. A case where a defendant only seeks
review of a completed sentence is not necessarily moot if possible collateral
consequences to the sentence are enough to justify review on the merits. 311 Kan. at 592.
The State relies on State v. Montgomery, 295 Kan. 837, 844, 286 P.3d 866 (2012),
in which our Supreme Court found Montgomery's appeal of his probation revocation
moot because Montgomery had completed his prison term. The Supreme Court
determined that the district court had no authority to punish or supervise him any further
in the case, so any action the court could take on Montgomery's probation revocation
would not impact on his rights. 295 Kan. at 841.
Montgomery is easily distinguishable from Stotts' appeal. Here, Stotts is
challenging the imposition of a 180-day intermediate prison sanction after he completed
the sanction. But Stotts remains on probation; thus, the district court could still impose
additional sanctions should he violate his probation again. Moreover, the district court's
future ability to revoke Stotts' probation after another violation is dependent on our
validation of the district court's 180-day sanction. See K.S.A. 2014 Supp. 22-
3716(c)(1)(E). Thus, Stotts' appeal is not moot.
Standard of Review
We review the appropriateness of a district-court-imposed probation violation
sanction for abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828(2020). Judicial discretion is abused if the action is an error of law, is an error of fact, or
is one no reasonable person would agree with. State v. Jones, 306 Kan. 948, 957, 398
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P.3d 856 (2017). Stotts bears the burden to establish such an abuse of discretion. See
State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
A district court's discretion concerning the imposition of probation violation
sanctions is limited by the provisions contained in K.S.A. 2014 Supp. 22-3716, the statute
in effect at the time Stotts committed his original crimes of conviction. See State v.
Dooley, 308 Kan. 641, 649, 423 P.3d 469 (2018) (discussing district court's discretion
under graduated sanctioning scheme); State v. Dominguez, 58 Kan. App. 2d 630, 637,
473 P.3d 932 (2020) (finding intermediate sanctioning scheme in effect at time original
crimes committed applies). With some exceptions, the district court is required to impose
graduated intermediate sanctions before revoking an offender's probation. K.S.A. 2014
Supp. 22-3716(c).
At the time Stotts committed his crimes, intermediate sanctions included a 2- or 3-
day jail sanction and a 120- or 180-day prison sanction. K.S.A. 2014 Supp. 22-
3716(c)(1)(B), (C), (D). Here, the district court imposed a 180-day prison sanction, which
could be imposed only after Stotts had been given a 2- or 3-day jail sanction. See K.S.A.
2014 Supp. 22-3716(c)(1)(D).
The parties proceed under the assumption that Stotts previously received a 2- or 3-
day intermediate jail sanction prior to the district court's imposition of the 180-day
intermediate prison sanction. The transcript of the probation violation hearing shows the
district court assumed Stotts had previously received a two- or three-day intermediate jail
sanction, and, when asked by the court, the probation officer confirmed this fact.
However, the rest of the record does not appear to support the probation officer's
representation. There is no journal entry filed establishing that a two- or three-day
intermediate jail sanction had been previously imposed on Stotts. Moreover, the journal
entry memorializing the probation violation hearing in which the district court imposed
the 180-day intermediate prison sanction specifically fails to check the box indicating that
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Stotts had previously received an intermediate sanction. It merely shows that Stotts had
previously received a 30-day jail sanction pursuant to K.S.A. 2020 Supp. 22-3716(c)(9),
which is the current version of K.S.A. 2014 Supp. 22-3716(c)(11). However, this
sanction is not an intermediate sanction and is not subject to the same prerequisites. See
K.S.A. 2014 Supp. 22-3716(c)(11). Thus, we have doubts about the district court's legal
authority to impose a 180-day prison sanction upon Stotts.
However, at no point has Stotts ever challenged the district court's legal authority
to impose the 180-day intermediate prison sanction. Before us, Stotts attacks only the
wisdom of the district court's decision, arguing no reasonable person would agree with it.
At the probation violation hearing, Stotts asked the district court to impose a 120-day
intermediate prison sanction instead, suggesting Stotts may have invited any error by the
district court because this intermediate sanction also cannot be imposed without Stotts
having already received the 2- or 3-day intermediate jail sanction. See K.S.A. 2014 Supp.
22-3716(c)(1)(C); State v. Stoll, 312 Kan. 726, 735, 480 P.3d 158 (2021) (litigant may
not invite error then complain of error on appeal). Thus, Stotts has waived any challenge
to the district court's legal authority to impose the 180-day intermediate prison sanction.
See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issue not briefed deemed
waived or abandoned).
Addressing the merits of district court's action, Stotts asserts no reasonable person
would agree with the district court's decision to impose such a severe sanction because of
extenuating circumstances surrounding his violation. He argues a lesser sanction was
more appropriate. Stotts was unsuccessfully discharged from Serenity House, then, while
in quarantine in a hotel because of close contact with someone positive for Covid-19,
Stotts submitted a positive UA for marijuana, amphetamines, methamphetamines, and
MDMA. Stotts admitted to his probation officer that he did use those drugs. The district
court found Stotts violated his probation, and Stotts does not challenge that finding here.
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Agreeing with the State's request and contrary to Stotts' wishes, the district court
imposed a 180-day intermediate prison sanction, explaining it did so because probation
was originally granted as the result of a dispositional departure and, at Stotts' first
probation violation hearing, the district court had warned him that this was his last
chance—meaning Stotts needed to follow the conditions of his probation. The district
court's stated reasons for imposing the sanction it did strike us as reasonable, and we see
no abuse of discretion.
Affirmed.
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