Wheeler v. Kansas Prisoner Review Bd. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,764
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
BRETT D. WHEELER,
Appellant,
v.
KANSAS PRISONER REVIEW BOARD, et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Ellsworth District Court; SCOTT E. MCPHERSON, judge. Opinion filed May 22,
2020. Appeal dismissed.
Shannon S. Crane, of Hutchinson, for appellant.
Natasha M. Carter, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J. and BURGESS, S.J.
PER CURIAM: Brett D. Wheeler appeals the Ellsworth County District Court's
decision summarily dismissing his K.S.A. 60-1501 petition. Wheeler argues that the
Kansas Prisoner Review Board (Board) erred in revoking his parole. Because Wheeler is
no longer in custody for this parole revocation, however, we dismiss his appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 1987, a Shawnee County jury convicted Wheeler of two counts each of rape
and aggravated sodomy. The district court sentenced Wheeler to concurrent terms of 10
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years to life for each count. The Kansas Department of Corrections (KDOC) initially
released Wheeler on parole in 2000. In the years since, Wheeler has returned to prison
several times for violating the terms of his parole. Relevant to this appeal, Wheeler was
released on parole on March 10, 2017.
On March 13, 2018, Wheeler's parole officer filed a violation report alleging, in
part, that Wheeler had violated the terms of his parole by (1) submitting a urinalysis
sample that tested positive for amphetamines and (2) failing to notify his parole officer of
his involvement in an intimate relationship. Following a preliminary hearing, a KDOC
hearing officer made a finding of probable cause that Wheeler had violated these
conditions of his parole.
On April 19, 2018, the Board held a final hearing, where it found Wheeler guilty
of both violations. As a result, the Board ordered Wheeler's parole revoked with a
reparole date on or after September 8, 2018. The Board later denied Wheeler's request for
reconsideration.
On June 8, 2018, Wheeler filed a petition for habeas corpus relief under K.S.A.
2017 Supp. 60-1501. Wheeler alleged that (1) his parole officer failed to follow the
proper procedure in collecting his urine sample, (2) the Board's finding that he had not
informed his parole officer of his intimate relationship was not supported by a
preponderance of the evidence, and (3) the Board violated his right to confrontation by
not allowing him to cross-examine his parole officer. The Board filed an answer and
motion for dismissal, claiming that the Board's decision complied with applicable statutes
and was not arbitrary or capricious.
Without holding a hearing, the district court summarily granted the Board's motion
to dismiss. Specifically, the court found the record showed that more than one drug test
confirmed the presence of methamphetamine in Wheeler's urine sample and that Wheeler
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did not fully comply with the requirement of notifying his parole officer of his
involvement in an intimate relationship. The court concluded that the Board's decision
was not arbitrary or capricious and that Wheeler had failed to show that his rights were
"shockingly or intolerably violated."
Wheeler timely appeals.
LEGAL ANALYSIS
To state a claim for relief under K.S.A. 60-1501, a petition must allege "shocking
and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson
v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). "[I]f, on the face of the petition, it can
be established that petitioner is not entitled to relief, or if, from undisputed facts, or from
incontrovertible facts, such as those recited in a court record, it appears, as a matter of
law, no cause for granting a writ exists," then summary dismissal is proper. 289 Kan. at
648-49. We exercise unlimited review over a district court's summary dismissal of a
K.S.A. 60-1501 petition. 289 Kan. at 649.
The Board argues that Wheeler's appeal must be dismissed as moot because he is
no longer in KDOC custody on the parole revocation at issue in this appeal. Wheeler did
not address the mootness issue in his brief nor did he file a reply brief in response to the
Board's argument.
Kansas appellate courts generally do not decide moot questions or render advisory
opinions. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). Rather, the
role of a court 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.'" State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). To be a
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real, justiciable controversy, a case must involve definite and concrete issues and
"adverse legal interests that are immediate, real, and amenable to conclusive relief." State
ex rel. Morrison v. Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008).
The test for whether an issue is moot is well settled: "An appeal will not be
dismissed as moot unless it clearly and convincingly appears that the actual controversy
has ceased and the only judgment which could be entered would be ineffectual for any
purpose." Montgomery, 295 Kan. 837, Syl. ¶ 3. Whether a claim is moot presents a
question of law over which we exercise unlimited review. See Hilton, 295 Kan. at 849.
On October 23, 2019, after Wheeler's appeal was docketed with this court, the
Board filed a notice of change in Wheeler's custodial status pursuant to Kansas Supreme
Court Rule 2.042 (2020 Kan. S. Ct. R. 18). The Board advised that Wheeler had
completed his sentence for the April 19, 2018 parole revocation and that he had since
been reparoled and returned to prison for violations unrelated to the present appeal.
Attached to the Board's notice was a letter from KDOC Corrections Manager Doug
Burris, which provided information about Wheeler's incarceration since April 2018.
Notably, Burris advised that Wheeler had been released on parole on September 14,
2018, and was returned to prison on October 25, 2018, for a parole violation. Burris
further advised that Wheeler remained incarcerated and would be parole eligible on
March 1, 2020.
Given Wheeler's change in custodial status, the habeas corpus relief that he seeks
from his April 2018 parole revocation is not available. Even if we assume without
deciding that Wheeler's rights were violated by the Board's decision to revoke his parole,
the issues presented on appeal are now moot because Wheeler has already completed the
punishment for those parole violations. The actual controversy generated by this appeal
no longer exists; thus, any judgment entered by the court would have no effect on the
parties and would be an idle act insofar as the rights involved in this action are
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concerned. See Montgomery, 295 Kan. at 844 ("We cannot change the sanction imposed
for the probation violation because the prison term that Montgomery was ordered to serve
has been completed.").
In theory, Wheeler might face harsher punishment for a future parole violation in
light of his past violations. But that sort of remote and abstract harm is too indefinite to
refute a finding of mootness. See Spencer v. Kemna, 523 U.S. 1, 14-18, 118 S. Ct. 978,
140 L. Ed. 2d 43 (1998) (rejecting petitioner's assertions that his claim was not moot
because his parole violation could be used to his detriment in future parole proceeding or
to increase his sentence in future sentencing proceeding); Montgomery, 295 Kan. at 843-
44 (finding persuasive Spencer's distinction between concrete or continuing collateral
consequences and hypothetical collateral consequences that are speculative or mere
possibilities).
We do recognize an exception to the mootness doctrine when the question
presented is capable of repetition and is of public interest even though the case has
become moot for the present parties. Hilton, 295 Kan. at 850. In this context, public
importance is defined as "something more than that the individual members of the public
are interested in the decision of the appeal from motives or curiosity or because it may
bear upon their individual rights or serve as a guide for their future conduct as
individuals." 295 Kan. 845, Syl. ¶ 5. Nothing in the record suggests that this case is likely
to interest the public for any reason beyond simple curiosity. It is similarly unlikely to
guide the public's behavior in the future.
The actual controversy before this court—whether the Board erred in revoking
Wheeler's parole in April 2018—has ended. Likewise, any answer that we might give on
the appropriateness of the Board's decision will not impact Wheeler's rights in the future.
Because there is no longer a real, justiciable case or controversy for this court to resolve,
Wheeler's appeal presents a request for an advisory opinion on a moot issue.
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Accordingly, we do not address the merits of Wheeler's claims and dismiss the appeal as
moot.
Appeal dismissed.
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