NOT DESIGNATED FOR PUBLICATION
No. 115,270
IN THE SUPREME COURT OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERIMIAH R. STEELE,
Appellant.
MEMORANDUM OPINION
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 9,
2016. Appeal from Jackson District Court; JANICE D. RUSSELL, judge. Opinion filed June 19, 2020.
Appeal dismissed.
Patrick H. Dunn, of Kansas Appellate Defender Office, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the
briefs for appellee.
PER CURIAM: Jeremiah R. Steele seeks review of the Court of Appeals decision in
State v. Steele, No. 115,270, 2016 WL 7178789 (Kan. App. 2016) (unpublished opinion),
affirming the sentencing court's scoring of his Colorado third-degree assault convictions
as person misdemeanors. While his appeal was pending, he served his entire sentence.
We dismiss his appeal because the issues are moot.
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FACTUAL AND PROCEDURAL BACKGROUND
Steele pled no contest to possession of methamphetamine for acts committed in
September 2015. At sentencing, Steele's criminal history included two convictions for
third-degree assault from Colorado that were classified as person misdemeanors. He
agreed these classifications were correct at the time. He was assigned a criminal history
score of H. The district court sentenced him to 13 months' imprisonment but granted
probation for 18 months. Steele timely appealed his sentence.
On appeal, Steele challenged his sentence on the ground his criminal history score
was incorrect and should have been lower. A Court of Appeals panel affirmed, holding
the district court correctly sentenced him. In doing so, the panel relied on State v.
Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (crimes need not have identical
elements to be comparable for making the person or nonperson designation). Steele, 2016
WL 7178789, at *3-4.
Steele timely petitioned for this court's review. He asked us to vacate his sentence
and remand the case for resentencing. But after review was granted, the State notified the
court that Steele was released from custody and postrelease supervision. Although our
record is silent on how Steele's sentence might have escalated from probation to
imprisonment, Steele's counsel acquiesced in this fact "based upon the length of . . .
Steele's sentence." From this, we gather Steele is no longer serving any probation,
imprisonment, or postrelease supervision term in this case.
The State moved to dismiss the appeal as moot. Steele now objects to dismissal,
advancing four contentions relevant under the circumstances: (1) resolution is necessary
for him to challenge his trial counsel's performance as malpractice; (2) dismissal
potentially subjects him to res judicata in a future sentencing proceeding if he is ever
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convicted again; (3) his issues are capable of repetition in other cases that would evade
review if not addressed now; and (4) dismissal would leave in place an incorrect Court of
Appeals decision to be incorrectly cited in future cases. We reject each argument and
dismiss the appeal as moot.
DISCUSSION
Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012). But an
appeal will not be dismissed as moot unless 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; McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); State ex
rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007).
Steele's potential legal malpractice claim
Steele claims if we do not complete the appeal and grant him relief he would be
unable to seek "any potential recourse through a legal malpractice claim," citing Garcia
v. Ball, 303 Kan. 560, 573, 363 P.3d 399 (2015) (criminal defendant required to obtain
postsentencing relief from an unlawful sentence before legal malpractice claim accrued).
But he provides no detail about what he might assert as the basis for this alleged
malpractice. See Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 639,
355 P.3d 667 (2015) (setting out elements of a legal malpractice claim).
Given the superficial explanation, we hold Steele fails to adequately support his
claim to avoid dismissal based on mootness. State v. Gonzalez, 307 Kan. 575, 592, 412
P.3d 968 (2018); see also State v. Tracy, 311 Kan. __, __ P.3d __ (No. 113,763, this day
decided), slip op. at 7.
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Speculated reliance by a future sentencing court on the panel's decision
Steele claims if we do not correct the Court of Appeals decision, a future district
court would feel obligated to follow the panel's ruling based on res judicata and again
classify his Colorado convictions as person misdemeanors if he is ever convicted again
for another crime. This assertion lacks merit. See Tracy, 311 Kan. at __, slip op. at 5.
As in Tracy, Steele fails to explain how a future sentencing court would have
authority to ignore the statutory requirements for preparing and considering a presentence
investigation in a manner that would deny him his legal right to challenge "any error in
the proposed criminal history worksheet." K.S.A. 2019 Supp. 21-6814(c). Similarly, to
accept his argument we would have to assume that a future sentencing court would ignore
controlling caselaw. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017)
(Kansas courts are "duty bound to follow Kansas Supreme Court precedent absent
indication Supreme Court is departing from previous position"). Steele's speculative
claim simply fails to demonstrate a way in which a judgment on this appeal would impact
his rights as he asserts.
Issue capable of repetition and concerns of public importance
Steele argues we should resolve his sentencing challenge, even if it is moot,
suggesting the panel's decision could have an impact on other defendants in other cases,
i.e., the issue is capable of repetition and raises concerns of public importance. See State
v. Hilton, 295 Kan. 845, 850, 286 P.3d 871 (2012) ("One commonly applied exception to
the rule that appellate courts will not review moot issues is where the moot issue 'is
capable of repetition and raises concerns of public importance.'"). But he again offers no
detail as how this is possible given our current sentencing caselaw. See State v. Wetrich,
307 Kan. 552, 412 P.3d 984 (2018); State v. Moore, 307 Kan. 599, 412 P.3d 965 (2018);
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State v. Buell, 307 Kan. 604, 412 P.3d 1004 (2018). Indeed, Steele argues Wetrich
controls the issues raised in his sentencing challenge.
Dismissal will provide incorrect guidance
Finally, Steele argues leaving the unpublished panel's decision in his case
uncorrected could mislead courts attempting to resolve this issue in future cases. But this
speculation is not a legitimate basis to avoid dismissal for mootness. See Montgomery,
295 Kan. at 841 (setting out exceptions to mootness doctrine). And it is difficult to
understand how this hypothetical circumstance could arise given the obligation of all
courts to follow the then-existing precedent.
We hold the issues raised before this court are moot.
Appeal dismissed.
JOHNSON, J., not participating.1
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REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not
participate in the final decision in case No. 115,270. Justice Johnson retired effective
September 6, 2019.1
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