State v. Wilson ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,910
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARCUS L. WILSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judges. Opinion filed November 6, 2020.
Appeal dismissed.
Kristen B. Patty, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
PER CURIAM: Marcus L. Wilson appeals the district court's decision revoking his
probation in this misdemeanor case. Wilson asserts a somewhat unconventional claim
that the district court erred in revoking his probation because the record reflects there was
no probation imposed by the court that it could later revoke. In response, the State mainly
contends that this appeal is moot because Wilson has completely served his sentence.
Because the record reflects that Wilson has completely served his sentence and this
appeal is ineffectual for any purpose, we dismiss the appeal as moot.
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FACTS
We will briefly review the facts and procedural background of Wilson's case. On
August 31, 2018, the State charged Wilson with aggravated domestic battery under
Sedgwick County case No. 18CR2394. When he committed the offense, Wilson was on
probation in a prior felony case in Sedgwick County case No. 16CR2520.
On October 2, 2018, the district court held a joint probation violation hearing in
the 2016 case and plea hearing in the new case. At the hearing, Wilson pled guilty to an
amended charge of misdemeanor domestic battery. The district judge proceeded directly
to sentencing and stated, "I've got the journal entry, which is a Class B misdemeanor. Mr.
Wilson, I will simply sign this journal entry and that will then be the judgment of the
Court in that case. . . . The parties agree to a six-month sentence and court costs." The
district court did not explicitly grant Wilson probation at the hearing, but the journal
entry stated: "Probation for 1 year on same conditions [as 16CR2520]."
The district court then found that based on Wilson's plea to domestic battery and
his admission to two other violations, Wilson had violated the terms of his probation in
his 2016 felony case. The district court extended Wilson's probation and imposed a 180-
day sanction to "allow Mr. Wilson to show the Court that he can complete probation and
comply with the terms and also with the probation in the [instant] misdemeanor case."
On May 15, 2019, the district court issued a warrant for Wilson's arrest, alleging
he violated the terms of his probation by testing positive for tetrahydrocannabinol (THC),
committing the offense of domestic battery, and failing to begin drug and alcohol
treatment as directed. On June 26, 2019, the district court issued another warrant alleging
Wilson violated his probation by again testing positive for THC.
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On July 24, 2019, the district court held a joint probation violation hearing in each
case. The State dismissed the second alleged violation, that Wilson committed domestic
violence, because it could not locate the victim. It also clarified that the June 2019
warrant was correcting the date of the positive THC test, it was not a separate violation.
Thus, the State proceeded on the allegations that Wilson had one positive test for THC
and he failed to begin drug and alcohol treatment. Chad Edwards, Wilson's supervision
officer, testified about Wilson's positive test for THC, and the State offered the laboratory
results into evidence. Edwards also testified that after the positive test for THC, he
instructed Wilson to begin drug and alcohol treatment, but Wilson failed to do so.
After hearing the evidence, the district court found Wilson had violated his
probation. The district court revoked Wilson's probation and ordered him to serve the
original sentence in each case, but the district court ordered that Wilson's 6-month jail
sentence in 18CR2394 shall run concurrent with his 75-month prison sentence in the
2016 felony case. Wilson timely appealed his probation revocation in each case, but the
cases were not consolidated on appeal. Wilson's 2016 felony case is the subject of a
separate appeal before this court in case No. 121,729.
Finally, on June 18, 2020, the State filed a notice of change in custodial status
under Supreme Court Rule 2.042 (2020 Kan. S. Ct. R. 18), asserting that Wilson
completed serving his sentence in 18CR2394. Attached to the notice is a copy of a letter
from the Sedgwick County Sheriff's Office, dated June 10, 2020, confirming that
according to its records "Wilson completed his sentence for case 18CR2394."
ANALYSIS
On appeal, Wilson argues his sentence is illegal because the district court did not
pronounce from the bench that it was placing Wilson on probation and instead only
pronounced a total sentence of six months. Wilson argues that because the sentence
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pronounced from the bench controls over any notation in the journal entry, the district
court erred in revoking his probation because the record reflects there was no probation
imposed by the court that it could later revoke. Instead, Wilson contends that the "orally-
pronounced sentence of . . . '6 months and costs' controls."
The State argues that Wilson's appeal is moot because he has served his entire six-
month sentence. The State also points out that if Wilson is seeking to have the six-month
pronouncement from the bench to be his sentence instead of probation, then he has
already obtained the relief he requests. Wilson has filed no reply brief disputing the
State's claim that the appeal is moot because Wilson has completely served his sentence.
We will focus on the State's mootness claim. As a general rule, Kansas appellate
courts do not decide moot questions or render advisory opinions. State v. Montgomery,
295 Kan. 837, 840, 286 P.3d 866 (2012). The mootness doctrine is one of court policy,
under which the 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.'" 295 Kan. at 840. An issue is moot if "'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.'" 295 Kan. at 840-41. Because mootness is a doctrine of court policy, appellate
review is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).
The State, as the party asserting mootness, bears the burden of establishing a
prima facie showing of mootness, which can be done by showing the defendant has "fully
completed the terms and conditions of his or her sentence." See State v. Roat, 311 Kan.
581, 593, 466 P.3d 439 (2020). But the Kansas Supreme Court disavowed "a 'bright line'
test, such as one that renders a sentencing appeal necessarily moot if the sentence is
completed." 311 Kan. at 592. Instead, "a determination of mootness must . . . include
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analysis of whether an appellate judgment on the merits would have meaningful
consequences for any purpose, including future implications." 311 Kan. at 592-93. The
appellant bears the burden to demonstrate a meaningful interest that would be impaired
by dismissal or that an exception to the mootness doctrine applies. 311 Kan. at 593.
Our record conclusively shows that Wilson has served his sentence. First, the State
complied with Supreme Court Rule 2.042 by filing a notice of change in custodial status
asserting that Wilson has completed serving his sentence. Attached to the notice is a copy
of a letter from the Sedgwick County Sheriff's Office, dated June 10, 2020, confirming
that according to its records Wilson has completed his sentence in 18CR2394.
More importantly, our record shows that at the joint probation revocation hearing
more than a year ago on July 24, 2019, the district court revoked Wilson's probation and
ordered him to serve his 6-month jail sentence concurrent with his 75-month prison
sentence in 16CR2520. We also take judicial notice that the revocation of Wilson's felony
probation in 16CR2520 was affirmed by this court in a memorandum opinion filed on
August 28, 2020. See State v. Wilson, No. 121,729, 2020 WL 5083545 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed September 24, 2020. Thus, Wilson has been
incarcerated since July 24, 2019, and he has clearly served his six-month concurrent jail
sentence that the district court executed on that date.
Wilson does not dispute the State's assertion that he has completed serving his
sentence in this case. Of course, a defendant's release from custody does not always
establish mootness in a sentencing appeal. We must also look to other factors to
determine whether judgment would be ineffectual for any purpose including future
impact on the rights of the parties. See Roat, 311 Kan. at 593. But here, Wilson fails to
assert any meaningful interest that would be impaired by dismissal or that an exception to
the mootness doctrine applies. Further, he has already received the relief he requests.
Wilson asks this court find that "the orally-pronounced sentence of . . . '6 months and
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costs' controls" and to reverse the imposition of probation because probation was never
lawfully imposed. But even assuming his argument has merit, the district court removed
Wilson from probation and imposed the six-month sentence. Thus, Wilson received and
served the six-month sentence he seeks to have control. In sum, Wilson's appeal is moot
because he has served his sentence, he advances no meaningful interest that would be
impaired by dismissal, and he already received the relief he requests.
Appeal dismissed.
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