No. 121,380
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JASON FLOYD CASTLE,
Appellant.
SYLLABUS BY THE COURT
1.
The determination of whether a case is moot is subject to unlimited review by an
appellate court.
2.
A case is moot when a court determines that 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.
3.
The Kansas Supreme Court has acknowledged that an appellate court must
sometimes make factual findings necessary to confirm a change in circumstances that a
party has alleged renders an appeal moot. But an appellate court must carefully scrutinize
the reliability of evidence before considering it a basis for appellate fact-finding.
4.
A written certification from the Kansas Department of Corrections records
custodian is reliable evidence that may support appellate fact-finding for the limited
purpose of deciding whether an appeal is moot.
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5.
A defendant's release from custody does not always establish mootness in a
sentencing appeal. An appellate court must also look to other factors to determine
whether judgment would be ineffectual for any purpose. But the burden is on the
defendant to show the existence of a substantial interest that would be impaired by
dismissal or that an exception to the mootness doctrine applies.
Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed November 6,
2020. Appeal dismissed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
MALONE, J.: In this direct sentencing appeal, Jason Floyd Castle claims the
district court erred by classifying his two prior California convictions of sex crimes as
person felonies when calculating his criminal history score. The State disagrees and
argues that Castle's release from prison moots this appeal. To support its mootness claim,
the State has filed with this court a notice of change in custodial status under Kansas
Supreme Court Rule 2.042 (2020 Kan. S. Ct. R. 18) with a written certification from the
Kansas Department of Corrections (KDOC) records custodian stating Castle has been
released from custody. Castle contends the State has failed to meet its burden to show he
is released from custody, but he does not otherwise argue that his appeal is not moot.
The Kansas Supreme Court has acknowledged that an appellate court must
sometimes make factual findings necessary to confirm a change in circumstances that a
party has alleged renders an appeal moot. We hold that a written certification from the
KDOC records custodian is reliable evidence that may support appellate fact-finding for
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the limited purpose of deciding whether an appeal is moot. Without any evidence offered
by Castle challenging the accuracy of the information in the KDOC certification, we
accept the written certification as reliable evidence sufficient to show that Castle is no
longer in prison. Because Castle is now on postrelease supervision and he makes no
claim that his appeal challenging his criminal history score has an impact on his current
or future rights, we dismiss his appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On January 24, 2019, pursuant to a plea agreement, Castle pled no contest to one
count of possession of methamphetamine and the district court found him guilty. The
presentence investigation report showed a criminal history score of B based on California
convictions in 2002 for rape and oral copulation, which were scored as person felonies.
Castle filed a written objection to his criminal history score, arguing that the California
crimes should not be classified as person felonies because the elements of those crimes
were broader than the comparable Kansas offenses. If the district court classified the
California crimes as nonperson felonies, Castle's criminal history score would be F,
leading to presumptive probation instead of a presumptive prison sentence.
The district court held a sentencing hearing on May 24, 2019, and Castle renewed
his objection to his criminal history score. The district court overruled Castle's objection
to his criminal history score but granted his motion for a downward durational departure
and sentenced him to 17 months' imprisonment and 12 months' postrelease supervision.
The term of Castle's sentence was the same that he would have received with a criminal
history score of F, but the district court imposed the presumptive imprisonment based on
Castle's criminal history score of B. Castle timely appealed his sentence.
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Proceedings on appeal
This appeal was docketed on June 19, 2019. Castle filed his appellate brief on
December 30, 2019, claiming the district court erred by classifying his California
convictions of sex crimes as person felonies when calculating his criminal history score.
Castle asked to be resentenced under a criminal history score that would allow for
presumptive probation. The State filed its appellate brief on April 9, 2020, arguing that
the district court did not err in sentencing Castle. The State also asserted that Castle's
earliest date of release from prison was April 25, 2020, so this appeal "will likely become
moot a few weeks after the State completes its brief." The State argued that "once Castle
has served his entire prison sentence, he cannot obtain relief." Castle did not file a reply
brief or otherwise respond to the State's mootness argument.
On April 28, 2020, the State filed a "Notice of Change in Custodial Status,"
alleging that according to the KDOC website, commonly called KASPER, Castle was
placed on postrelease supervision on April 24, 2020, so this appeal is moot. On June 8,
2020, this court ordered Castle to show cause why the appeal should not be dismissed as
moot. But on June 23, 2020, before Castle responded, this court withdrew its order
because of the Kansas Supreme Court's June 19, 2020 decisions in State v. Roat, 311
Kan. 581, 466 P.3d 439 (2020), and State v. Yazell, 311 Kan. 625, 465 P.3d 1147 (2020).
We will address those decisions in detail in this opinion.
Five days after the Kansas Supreme Court issued its opinions in Yazell and Roat,
the State filed a second "Notice of Change in Custodial Status," arguing that its previous
notice was accurate and attaching a "Certification of Time Served" the State had obtained
from the KDOC that stated Castle was released on "[p]arole" on April 24, 2020. The
certification included the following signed statement:
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"I, the undersigned Vickie Belanger, of lawful age being duly sworn, do hereby, declare
and certify that I am designated as a Public Service Administrator for the Kansas
Department of Corrections and by virtue of my said office I am the legal keeper of all
official records and files of the Office of the Secretary of Corrections. The foregoing is
true and correct information from the records of: CASTLE, Jason F. KDOC# 122171."
On June 30, 2020, this court ordered Castle to show cause why this court should
not dismiss his appeal as moot. In his response, Castle contended that the State had failed
to meet its burden under Yazell to prove his release. Castle also pointed out that Kansas
Supreme Court Rule 5.05(b) (2020 Kan. S. Ct. R. 32) addresses involuntary dismissals
and states: "If dismissal depends on an issue of fact, the appellate court may remand the
case to the district court with direction to make findings of fact." Thus, Castle argued, if
mootness depends on his custodial status, it depends on a question of fact, so this court
should remand to the district court for an evidentiary hearing.
The State replied to Castle's response, complaining that if the KDOC certification
is insufficient under Yazell, the State "is unclear how it can ever avoid an evidentiary
hearing on whether a case is moot." After noting that Castle's counsel did "nothing to
refute the fact that [Castle] is not in prison," the State argued that remand for an
evidentiary hearing on a fact that is not disputed would waste judicial resources. The
State asked that this court hold any necessary evidentiary hearing itself and order Castle's
appellate counsel to represent him at any such hearing.
In minute orders dated July 15, 2020, this court noted the response and reply,
retained the appeal, and stated: "The panel of judges assigned to this case may revisit the
issue of mootness." On August 31, 2020, the State filed a "Motion to Determine if an
Evidentiary Hearing is Needed to Decide if Castle Remains in Prison." This motion
informed this court that "what the State actually wants is a ruling by this Court on
whether an evidentiary hearing is required that can be reviewed by the Kansas Supreme
Court." The State sought clarification on whether the KDOC certification was sufficient
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to establish Castle's custodial status, "either in an order making the finding of the court
clear or in the court's decision on this appeal."
Castle responded to the motion, arguing that an evidentiary hearing in this court
would be improper because this court is not a fact-finding court. On September 9, 2020,
this court issued an order stating the hearing panel would address the issue in its opinion.
IS THE APPEAL MOOT?
Castle's substantive claim on appeal is that the district court erred by classifying
his two prior California convictions of sex crimes as person felonies when calculating his
criminal history score. But the State claims the appeal is moot because Castle has been
released from prison. The determination of whether a case is moot is subject to unlimited
review by an appellate court. Roat, 311 Kan. at 590.
"A case is moot when a court determines that '"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.'"
....
"The party asserting mootness generally bears the initial burden of establishing
that a case is moot in the first instance. 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. The burden then shifts to the party opposing the mootness challenge to
show the existence of a substantial interest that would be impaired by dismissal or that an
exception to the mootness doctrine applies. [Citations omitted.]" Roat, 311 Kan. at 584,
593.
To support its claim that Castle has been released from prison, the State has filed
with this court a notice of change of custodial status under Supreme Court Rule 2.042
with a written certification from the KDOC records custodian stating Castle has been
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released from custody. Castle contends the State has failed to meet its burden to show he
is released from custody. Castle argues that whether he is released from custody is a
question of fact, so this court should remand to the district court for an evidentiary
hearing to resolve this issue.
Our Supreme Court recently addressed the mootness issue in Yazell and Roat, so
we will address those decisions in detail. While Corey Leroy Yazell's appeal from his
probation revocation was in the Court of Appeals, a panel of this court sua sponte ordered
the parties to show cause why the appeal should not be dismissed as moot because Yazell
had been released from custody. The State responded that KASPER showed Yazell was
on postrelease supervision and asserted it had confirmed Yazell's release with a telephone
call to a KDOC senior administrative specialist in the sentence computation unit. Yazell
argued that the KASPER website warns that its accuracy is unreliable; he also challenged
the reliability of the KDOC employee's statement, which he characterized as an "unsworn
ex parte communication not subject to cross-examination." 311 Kan. at 627. Without
analyzing the parties' arguments, this court dismissed the appeal. 311 Kan. at 627.
On a petition for review, our Supreme Court focused on whether the State had
established that Yazell was released from custody. The court acknowledged that although
Kansas appellate courts rarely make factual findings, at times they must do so when it is
necessary to "confirm the change in circumstances" that a party has alleged renders the
appeal moot. 311 Kan. at 628. Because "[t]he appellate forum is not conducive to the
taking or testing of evidence," the Yazell court held that "appellate courts must carefully
scrutinize the reliability of evidence before making the rare finding of fact." 311 Kan. at
628. Ultimately, the court held "that the Court of Appeals erred to the extent that it relied
on KASPER and the State's hearsay assertions about a Corrections employee confirming
the accuracy of the report." 311 Kan. at 631.
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Our Supreme Court decided Roat on the same day as Yazell. While Tony Roat's
appeal from the denial of his motion to correct illegal sentence was pending in the Court
of Appeals, the State filed a notice of change of custodial status alleging that Roat "had
satisfied both the prison and post-release supervision provisions of his sentences." 311
Kan. at 583. When this court ordered Roat to show cause why the appeal should not be
dismissed, Roat did not dispute that he was no longer in prison. But Roat argued that his
appeal still was not moot because his sentence could impact future sentences and he was
considering a legal malpractice claim against his attorney for not raising certain issues at
sentencing. After receiving the response, this court dismissed the appeal. 311 Kan. at 583.
On a petition for review, our Supreme Court affirmed the dismissal but held that
this court had "engag[ed] in either erroneous or insufficient analysis of the [mootness]
question." 311 Kan. at 584. After recognizing inconsistencies in Kansas appellate courts'
treatment of the mootness doctrine as discretionary or jurisdictional and reviewing
federal courts' application of mootness, the Roat court held "that the better approach is to
consider mootness a prudential doctrine." 311 Kan. at 590. The court stressed the
importance of respecting litigants' fundamental "'right to a day in court'" so they may
"vindicate injuries suffered to their rights." 311 Kan. at 591.
Because mootness is a particularized analysis, the Roat court found that a bright-
line test for mootness "is contrary to the law of our state." 311 Kan. at 592. Rather, "[a]n
appeal should not be dismissed for mootness 'unless it is clearly and convincingly shown
that the actual controversy has ended, the only judgment that could be rendered would be
ineffectual for any purpose, and it would not impact any of the parties' rights.' [Citation
omitted.]" 311 Kan. at 592. The court explained that the rights to be examined and the
effect of a judgment are not limited to the case at hand; courts also must examine the
collateral effects on rights and the preservation of rights for future litigation. 311 Kan. at
594. But the court limited the consideration to "vital, or substantial, right[s] requiring a
judgment in this appeal." 311 Kan. at 596. It also noted that "[m]ere stigma or 'rightness'
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is insufficient to justify continuing to exercise jurisdiction over an appeal." 311 Kan. at
599. Finally, the court cautioned: "Litigants must do more than mention speculative
rights; they must give substance to their arguments when asserting that protection of
collateral rights necessitates resolution of their underlying appellate issues. And appellate
courts must analyze and evaluate those arguments before exercising the prudential
authority to dismiss appeals because of mootness." 311 Kan. at 601.
Returning to Castle's appeal, we must first decide whether the KDOC certification
is reliable evidence to show that Castle is no longer in prison. Assuming we find that it is,
we must next decide whether Castle's release from prison renders this appeal moot.
Is the KDOC certification reliable evidence to show that Castle is no longer in prison?
The threshold question is whether the "Certification of Time Served" the State
filed with this court is sufficient to show that Castle is no longer in prison. In Yazell, our
Supreme Court recognized that an appellate court may engage in limited fact-finding
necessary "to confirm the change in circumstances" that a party has alleged renders an
appeal moot. 311 Kan. at 628. But "appellate courts must carefully scrutinize the
reliability of evidence" before considering it a basis for appellate fact-finding. 311 Kan.
at 628. Our Supreme Court held in Yazell that it was error to rely on the KASPER
website information and on hearsay assertions made over the telephone by a corrections
employee confirming the accuracy of the KASPER report. See 311 Kan. at 631.
The Yazell court's rejection of the KASPER website information as reliable
evidence to show an inmate's custodial status was not surprising. The website itself
contains a disclaimer on "the accuracy, completeness, or usefulness of any information"
provided to the public. See http://kdocrepository.doc.ks.gov/kasper/search/disclaimer. A
reader must agree to the disclaimer before the website will provide information about an
inmate. The Yazell court also found the State's assertion that it confirmed Yazell's release
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with a telephone call to a KDOC employee was unreliable evidence. This assertion
essentially amounted to hearsay within hearsay.
Here, the State has filed a notice of change in custodial status in compliance with
Supreme Court Rule 2.042 stating that Castle has been released from prison and is on
postrelease supervision. Attached to the notice is a written "Certification of Time Served"
on KDOC official letterhead. The certification confirms that Castle was released from
KDOC custody on April 24, 2020. The certification contains a signature of the KDOC
records custodian "being duly sworn" and states that it provides "true and correct
information" from Castle's records with the KDOC. Castle has offered no evidence to
controvert the evidence presented by the State. He contends the State has failed to meet
its burden to show he is released from custody. Significantly, Castle has not affirmatively
represented to this court that the information in the KDOC certification is inaccurate.
Granted, Castle is unable to "cross-examine" the KDOC records custodian who
signed the certification. Likewise, the signature on the certification is not notarized or
subscribed before the person who administered the oath. Following this procedure would
have strengthened the evidentiary value of the certification. But without any evidence
offered by Castle challenging the accuracy of the information in the KDOC certification,
we accept the written certification as reliable evidence sufficient to show that Castle is no
longer in prison for the limited purpose of deciding whether this appeal is moot.
Does Castle's release from prison render this appeal moot?
Of course, a defendant's release from custody does not always establish mootness
in a sentencing appeal. An appellate court must also look to other factors discussed in
Roat to determine whether judgment would be ineffectual for any purpose including
future impact on the rights of the parties. See 311 Kan. at 591-01. But once the State has
established a prima facie showing of mootness by demonstrating that the defendant has
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fully completed the terms and conditions of his or her sentence, the burden shifts to the
defendant to show the existence of a substantial interest that would be impaired by
dismissal or that an exception to the mootness doctrine applies. 311 Kan. at 593. Here,
other than contending the State has failed to meet its burden to show he is released from
custody, Castle develops no argument about why his case is not moot.
Throughout its various filings in this court, the State has argued that this appeal is
moot because Castle has served his entire prison sentence. In his response to this court's
show-cause order issued on June 30, 2020, Castle pointed out he is still on postrelease
supervision. A person on postrelease supervision is still "'under a sentence.'" State v.
Lehman, 308 Kan. 1089, 1098, 427 P.3d 840 (2018). But the fact that Castle is on
postrelease supervision does not keep his appeal challenging his criminal history score
from being moot because a defendant's criminal history score does not affect the
mandatory term of postrelease supervision. See K.S.A. 2019 Supp. 22-3717(d).
Moreover, as the State asserts in its brief, this court cannot grant Castle any
meaningful relief in this appeal. Even if this court agreed with Castle that the district
court erred in calculating his criminal history score and remanded for resentencing under
a criminal history score that would allow for presumptive probation, the district court
could not impose probation because Castle has served his underlying sentence. See
K.S.A. 2019 Supp. 21-6805(a); State v. Kinder, 307 Kan. 237, 243, 408 P.3d 114 (2018)
(holding that if an underlying sentence has been served, probation may not be imposed).
In sum, the State has provided reliable evidence to show that Castle is no longer in
prison and is on postrelease supervision. Castle makes no claim that his appeal
challenging his criminal history score has an impact on his current or future rights. We
are unable to grant Castle any meaningful relief in this appeal and the only judgment that
could be entered would be ineffectual for any purpose. Under these circumstances, we
dismiss Castle's appeal as moot.
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Appeal dismissed.
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