NOT DESIGNATED FOR PUBLICATION
No. 123,487
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DUSTIN J. MORRIS,
Appellant.
MEMORANDUM OPINION
Appeal from Harvey District Court; MARILYN M. WILDER, judge. Opinion filed April 8, 2022.
Appeal dismissed.
Caroline M. Zuschek and Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ISHERWOOD, P.J., GREEN and BRUNS, JJ.
PER CURIAM: Dustin J. Morris pled no contest to one count of methamphetamine
possession. The court granted probation for a period of 18 months with an underlying
prison term of 24 months. At sentencing, the district court determined his criminal history
score was D based on one prior Illinois conviction for criminal sexual abuse, a person
felony. Morris' probation was later revoked, and the district court imposed an amended
18-month prison sentence. Morris appealed. During that appeal, we remanded the case at
the parties' request to determine whether Morris' criminal history was properly calculated
in anticipation of his initial sentencing. The district court found his criminal history score
was correct and the case resumed its travels down the appellate road. Morris argues his
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criminal history is incorrect and that the Illinois conviction should not have been counted
as a person felony. After the parties submitted their briefs, the State filed a notice to alert
this court of a change to Morris' custodial status, specifically, that he was released from
prison on November 24, 2021. After a thorough review of the issue, we dismiss Morris'
appeal as moot because the State successfully established that he has completed his
prison sentence and Morris failed to demonstrate that dismissing the appeal would impair
any interest.
FACTUAL AND PROCEDURAL BACKGROUND
Morris pled no contest to a single count of possession of methamphetamine, in
violation of K.S.A. 2020 Supp. 21-5706(a), a severity 5 level drug felony. The district
court granted Morris probation for a term of 18 months with an underlying prison term of
24 months to be followed by 12 months of post-release supervision.
In arriving at the appropriate sentence, the district court determined that Morris
had a D criminal history score based on his presentence investigation (PSI) report which
included a 2016 conviction from Illinois for criminal sexual abuse, a person felony, in
violation of 720 Ill. Comp. Stat. § 5/11-1.50(a)(2). The PSI also indicated that the Illinois
conviction was comparable to K.S.A. 21-3518 (now codified at K.S.A. 2020 Supp. 21-
5505). See K.S.A. 2020 Supp. 21-6811(e)(3)(A).
Less than two months after sentencing, the State filed a motion to revoke Morris'
probation. It alleged that Morris tested positive for methamphetamine once and admitted
to methamphetamine use on four other occasions. Additionally, Morris allegedly missed
two inpatient treatment appointments and failed to sign a probation modification form
agreeing to report to jail and remain there until an inpatient bed was ready for him.
Morris knew from conversations with his ISO that a failure to sign the form constituted
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grounds for a revocation motion. The district court promptly issued a warrant in response
to the State's motion.
Not long after, the State filed an amended motion to revoke to include additional
allegations that Morris was arrested a few days earlier for possession of drug
paraphernalia with the intent to use drugs, possession of a stimulant, interfering with a
law enforcement officer, criminal use of weapons, and possession of marijuana. The first
amended motion was followed by a second such motion which asserted that Morris also
refused to take two drug tests as directed and was discharged from outpatient treatment
due to lack of attendance.
The district court held a probation revocation hearing and following arguments
from the parties, it revoked Morris' probation and imposed his underlying sentence based
on Morris' admission to the commission of new crimes. Morris timely appealed.
Morris and the State later filed a joint motion seeking remand of the case to the
district court to determine whether Morris' criminal history score was appropriately
calculated. This court granted the motion, and the district court held a hearing. After
hearing arguments from the parties, the district court found that the appropriate Illinois
and Kansas statutes were comparable under State v. Wetrich, 307 Kan. 552, 412 P.3d 984
(2018), and therefore Morris was properly classified as having a D criminal history score.
On November 30, 2021, the State filed a notice with this court suggesting that
Morris "fully served the prison portion of his sentence" and was released from custody on
November 24, 2021.
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IS THIS APPEAL MOOT?
The State argues that this case is moot because Morris has completed the prison
portion of his sentence.
Standard of Review
This court has unlimited review over whether a case is moot. State v. Roat, 311
Kan. 581, 590, 466 P.3d 439 (2020).
ANALYSIS
"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.'" Roat, 311
Kan. at 584 (citing State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 [2012]).
The analysis must look beyond whether the appeal would affect the sentence in the case
on appeal. 311 Kan. at 593. "The range of collateral interests that may preserve an appeal
is wide." 311 Kan. at 594.
The mootness determination involves two steps. First, "[i]n 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." 311 Kan. at 593. Second, the burden "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."
311 Kan. at 593.
In State v. Castle, 59 Kan. App. 2d 39, 477 P.3d 266 (2020), Castle argued that the
district court improperly calculated his criminal history score. Several weeks after the
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State filed its brief it followed up with a "Notice of Change in Custodial Status," which
alleged that KASPER showed Castle was on post-supervision release. 59 Kan. App. 2d at
41. This court then issued a show cause order asking Castle to show why his appeal was
not moot.
After the show cause order was issued, the Kansas Supreme Court released two
opinions that addressed the mootness issue: State v. Roat, 311 Kan. at 581 and State v.
Yazell, 311 Kan. 625, 465 P.3d 1147 (2020). This court then withdrew its show cause
order before Castle could respond.
Shortly after, the State filed a second "Notice of Change in Custodial Status" and
included a "Certification of Time Served" document evidencing Castle's release:
"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."
59 Kan. App. 2d at 42.
This court issued a second show cause order and requested that Castle demonstrate
why his appeal should not be dismissed as moot. Castle replied that the State failed to
sufficiently show he was released and requested an evidentiary hearing on the matter.
After various other filings, this court issued an order stating the hearing panel "would
address the issue in its opinion." 59 Kan. App. 2d at 43.
The Castle court began its analysis by reviewing Yazell and Roat. 59 Kan. App. 2d
at 44. In Yazell, this court sua sponte ordered the parties to show why the appeal was not
moot given that Yazell was released from custody. The State argued that KASPER
showed he had been released and that information was confirmed through a phone call to
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a Senior Administrative Specialist at KDOC. This court dismissed his appeal as moot.
Yazell, 311 Kan. at 627.
The Kansas Supreme Court granted review. It first noted that generally, appellate
courts do not make factual findings. Yet it also explained:
"But there are times when an appellate court is called upon to make a finding of its own.
One of those times occurs in this appeal—where a party alleges that a change in
circumstance since the district court proceedings has rendered an action moot. Before the
appellate court may consider mootness, it must confirm the change in circumstance." 311
Kan. at 628.
The court found that this court erred by relying on the KASPER printout and the
phone call. 311 Kan. at 628. It observed that KASPER is unreliable, and the phone call
constituted hearsay. As a result, the court reversed because "the panel's order does not
reveal its factual source." 311 Kan. at 631. It noted that, on remand, this court could
identify its factual source and the source's reliability.
In Roat, Tony Roat appealed arguing that the district court improperly calculated
his criminal history score. The State filed a notice of change of custodial status showing
that Roat would soon complete both his prison sentence and his postrelease supervision.
This court issued a show cause order asking Roat to explain why his appeal should not be
dismissed as moot. Roat replied and argued that his criminal history score might impact
future sentences and he could potentially raise "a legal malpractice claim against his trial
attorney." Roat, 311 Kan. at 583. This court noted his response and dismissed the case.
The Kansas Supreme Court granted review and explained that it "must decide
whether Roat has asserted an interest sufficient to prevent dismissal for mootness." 311
Kan. at 596. The court affirmed this court's decision to dismiss Roat's appeal as moot
because Roat failed to establish that his interest in a legal malpractice suit was "a vital, or
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substantial, right requiring a judgment in this appeal." 311 Kan. at 596. The court
explained that Roat's response to this court's show cause order failed to provide sufficient
detail about the factual basis for a legal malpractice claim. 311 Kan. at 597. Similarly, it
was not persuaded by Roat's argument that his criminal history score would impact future
potential sentencing because Roat could object to his criminal history score at any future
sentencing proceeding. 311 Kan. at 600-01.
After reviewing these cases, the Castle court examined the State's "Certification of
Time Served" and concluded it was sufficient evidence to establish Castle's release. In so
doing, it distinguished between that certificate and the methods employed in Yazell.
Unlike the unreliability of KASPER or the hearsay concerns with the phone call, the
"Certification of Time Served" appeared on official KDOC letterhead and bore the
signature of a records custodian affirming the truth of the statement about Castle's
sentence completion. The court noted that since Castle provided no contrary evidence, the
certificate amounted to reliable evidence of his release. Castle, 59 Kan. App. 2d at 46-7.
The court then considered whether Castle demonstrated that any substantial
interest would be impaired if the court dismissed his appeal as moot and concluded he did
not. Rather, it found his argument that he is still on postrelease supervision unpersuasive
"because a defendant's criminal history score does not affect the mandatory term of
postrelease supervision." 59 Kan. App. 2d at 48 (citing K.S.A. 2019 Supp. 22-3717[d]).
So the court dismissed his appeal as moot. 59 Kan. App. 2d at 48.
Castle is nearly identical to Morris' case. Here, the State also filed a "Certification
of Time Served" on KDOC letterhead, signed by a records custodian, that reads:
"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
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official records and files of the Office of the Secretary of Corrections. The foregoing is
true and correct information from the records of: MORRIS, Dustin KDOC# 124695."
We find that, like Castle, by presenting this document the State met its initial
burden to provide sufficient evidence to show that Morris is no longer subject to a prison
term given his release. The next question is whether Morris has shown any substantial
interest that would be impaired if we dismissed his appeal as moot. See State v. Llamas,
No. 122,478, 2021 WL 1945160, at *4 (Kan. App. 2021) (unpublished opinion) (finding
appeal not moot because appellant "articulates the factual legal bases upon which he
would make his malpractice claim were he to be successful on appeal"); State v. Spears,
No. 123,030, 2021 WL 4352536, at *5 (Kan. App. 2021) (unpublished opinion) (finding
appeal moot because appellant failed to show a substantial interest in preserving appeal).
The burden shifts to Morris to make this argument. Roat, 311 Kan. at 593.
Morris does not argue that any exception to the mootness doctrine applies. See
State v. Harmon, No. 122,153, 2021 WL 936070, at *3 (Kan. App. 2021) (unpublished
opinion) (dismissing appeal as moot when appellant did not brief mootness on appeal, did
not argue for any mootness exception, and instead argued the merits). In response to our
order to show cause why his appeal should not be dismissed as moot, he did assert that a
substantial interest would be impaired if such a dismissal occurred—namely, his ability
to pursue a legal malpractice claim against trial counsel. A plaintiff must identify a
"nonfrivolous," "arguable" underlying claim in forward-looking prisoner actions that seek
to remove roadblocks to future litigation. See Lewis v. Casey, 518 U.S. 343, 352-53 &
n.3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). The predicate claim must be described
well enough to apply the "nonfrivolous" test and show that the "arguable" nature of the
claim is more than just "hope." State v. Roat, 311 Kan. at 596-97 (citing Christopher v.
Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 153 L. Ed. 2d 413 [2002]). Morris, like
Roat before him, fails to meet this requirement. He does not seek to bolster his claim in
any meaningful way and instead merely graces us with the conclusory assertion that his
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rights will be adversely affected. A party should not leave the court "to guess about the
specifics of how [a party] would frame his arguments . . . . " State v. Berriozabal, 291
Kan. 568, 594, 243 P.3d 352 (2010). We would exceed the scope of our permissible
boundaries if we combed the record to ferret out potential missteps by counsel or
endeavored to blindly identify in precisely what manner Morris believes counsel rendered
deficient representation. Thus, we decline Morris' implicit invitation to engage in such
independent fact-finding.
Finally, we are aware Morris remains on postrelease supervision. Even so, other
panels of this court, including Castle, have declined to find that status sufficient to
prevent the appeal from being dismissed as moot. Castle, 59 Kan. App. 2d at 48; State v.
Alvis, No. 122,269, 2021 WL 4703871, at *7 (Kan. App. 2021) (unpublished opinion)
("The term of postrelease supervision is determined by the severity level of the crime, not
the defendant's criminal history score. The court is thus unable to grant meaningful
relief."); State v. Stotts, No. 123,240, 2021 WL 5858516, at *3 (Kan. App. 2021)
(unpublished opinion) ("But the fact that Stotts must serve postrelease supervision does
not keep her appeal of her probation revocation from being moot because whether a
defendant is on probation or imprisoned does not affect the mandatory term of
postrelease supervision."). Morris' appeal is dismissed as moot.
Appeal dismissed.
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