State v. Foster

501 P.3d 376 (Table)

STATE of Kansas, Appellee,

v.Jeffrey R. FOSTER, Appellant.

No. 123,019

Court of Appeals of Kansas.

Opinion filed December 23, 2021.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Green and Buser, JJ.

MEMORANDUM OPINION

Per Curiam:

Jeffrey R. Foster appeals the trial court's decision to revoke his postimprisonment supervision and order him to serve the underlying sentence. He argues that the trial court erred in imposing his sentence and in calculating his jail credit. Because the trial court did not abuse its discretion and because Foster raises the issue of jail credit for the first time on appeal, we affirm.

FACTS

In April 2019, Foster pleaded guilty to driving under the influence (DUI), fourth offense, in violation of K.S.A. 2018 Supp. 8-1567(b)(1)(E), and abusing toxic vapors, in violation of K.S.A. 2018 Supp. 21-5712. At the same hearing, Foster also pleaded guilty in a separate case to additional charges, including another DUI. Foster entered his pleas together as part of a universal plea agreement. Following the plea agreement, the trial court sentenced Foster to 48 hours in jail and 3,000 hours of house arrest, followed by a 12-month period of postimprisonment supervision. The underlying sentence was 18 months in jail. The trial court gave Foster 51 days of jail credit for the time he spent in custody before sentencing.

As one of the conditions of postimprisonment supervision, the trial court directed Foster not to drive. The trial court also did not authorize supervision officers to impose internal sanctions. This condition meant that any violation would result in Foster returning to court for a revocation hearing.

While Foster was on house arrest, he moved to modify the terms of his sentence. Foster's sentence required that he live under house arrest at an Oxford House sober living environment. But he was also litigating a child in need of care (CINC) case involving his two children in hopes of reintegration. One factor hindering reintegration with his children was the fact that Foster lived in an Oxford House rather than a home of his own. Thus, Foster sought to modify the condition of his house arrest sentence requiring him to stay at Oxford House.

At a hearing on his motion, Foster testified that he sought to conform to both the conditions of his house arrest and the requirements of his CINC case. He testified that he opened a new Oxford House for men and children, using a loan from Friends of Recovery. He served as president and treasurer of the new Oxford House in Olathe, which was named after his elder child. Foster also testified about his history of substance abuse, explaining that he was sober for nearly four years before his relapse in 2018 when his fiancée passed away and his children were in state custody. This relapse led him to, in his words, "put the public at risk getting these DUIs." In support of modifying the conditions of his house arrest, Foster pointed to his continued sobriety, leadership roles, and community support.

The State opposed modifying the conditions of Foster's house arrest. The State argued that an ignition interlock device would not be useful here because Foster's DUI history involved huffing toxic vapors. And the State explained that its motivation in the plea agreement was the hope that treatment would reduce the risk to public safety by addressing the underlying cause of Foster's DUIs. The State acknowledged that Foster had done well and made good progress. But the State argued that Foster needed to remain in a sober environment because he needed treatment and because the plea agreement required it.

The trial court denied Foster's motion to modify the conditions of his house arrest for two reasons. First, a trial court generally loses jurisdiction to modify a sentence once it is imposed. The trial court was doubtful that it could modify the location where Foster would serve his house arrest. Second, the trial court agreed with the State that Foster should remain at Oxford House during his house arrest.

Less than two weeks after the motion to modify hearing, the State moved to revoke Foster's postimprisonment supervision. The State alleged that Foster violated several conditions of his postimprisonment supervision, including driving a car and having contact with another person on supervision.

At a February 2020 hearing on the State's motion to revoke, Foster admitted to violating his supervision conditions by driving in the probation office parking lot. The State requested Foster serve his underlying sentence. The State recognized that Foster's act of driving "wouldn't be as big of a deal" if it happened in a different case. But the State again pointed to the fact that Foster's DUI convictions involved huffing and the State could not monitor his sobriety with an ignition interlock device. The State also noted that most of Foster's DUI cases involved wrecks. Foster's probation officer agreed with the State's recommendation, stating that her greatest concern was that Foster lied when she confronted him about driving.

Foster highlighted his success during his period of house arrest, his continued sobriety, his employment, and his progress paying fines and fees to get his driver's license reinstated. He also talked again about the Oxford House which he started to allow men to be with their children, explaining that this Oxford House was named after the older of his two children. Foster's counsel argued that Foster had perfectly complied on house arrest and this violation on postimprisonment supervision was his first issue. Thus, Foster requested to serve his supervision term in a residential center rather than serve his underlying sentence.

The trial court recounted Foster's driving-related prior convictions before it revoked his supervision and ordered that he serve the underlying sentence.

Foster timely appeals.

ANALYSIS

Is the case moot?

The State argues that this court should dismiss Foster's claims as moot because he has served his sentence. Foster argues that the State has failed to meet its burden to establish a prima facie showing of mootness. Because the State has produced no reliable evidence that Foster's claims are moot, as discussed later in this opinion, our only remaining choice is to reach the merits of Foster's claims.

In general, 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 about the legal rights of persons and properties that are actually involved in the case properly before it and to adjudicate those rights in a way that is operative, final, and conclusive. State v. Roat , 311 Kan. 581, 590, 466 P.3d 439 (2020) ; see also State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012) ; Board of Johnson County Comm'rs v. Duffy , 259 Kan. 500, 504, 912 P.2d 716 (1996).

"The party asserting mootness generally bears the initial burden of establishing that a case is moot in the first instance. [Citation omitted.]" Roat , 311 Kan. at 593.

A bright line test, such as a rule that a sentencing appeal is moot if the sentence is completed, is contrary to Kansas law. 311 Kan. at 592. An issue on appeal will only be dismissed as moot if it can be shown clearly and convincingly that the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and the judgment would not impact any of the parties' rights. State v. Williams , 298 Kan. 1075, 1082, 319 P.3d 528 (2014). A case is not moot if "it may have adverse legal consequences in the future." Montgomery , 295 Kan. 837, Syl. ¶ 4.

Appellate courts commonly apply an exception when an issue " ‘is capable of repetition and raises concerns of public importance.’ " State v. Kinder , 307 Kan. 237, 244, 408 P.3d 114 (2018). "Public importance means more than that certain members of the general public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct. [Citation omitted.]" State v. Hayden , 52 Kan. App. 2d 202, 206, 364 P.3d 962 (2015).

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 the defendant's sentence. The burden then shifts to the defendant to show that dismissal would impair a substantial interest or that an exception to the mootness doctrine applies. Roat , 311 Kan. at 593.

The State asserts that Foster completed his underlying 18-month jail sentence in June 2021 and therefore this case is moot. To support its claim, the State presents the Johnson County District Court's record of actions for Foster's case, which includes the entry "Probation Terminated" on "06/10/2021." Foster argues that the State has failed to make a prima facie showing of mootness. Our Supreme Court discussed the standard for sufficiently reliable evidence to show mootness in State v. Yazell , 311 Kan. 625, 465 P.3d 1147 (2020) (Yazell I ).

In Yazell I , the State claimed that Corey Leroy Yazell's appeal was moot because he was released from custody, relying on the Kansas Adult Supervised Population Electronic Repository (KASPER), a website maintained by the Kansas Department of Corrections (KDOC). The State also spoke with a KDOC employee over the phone to confirm the information on KASPER. Our Supreme Court held that information provided by KASPER was not sufficiently reliable evidence to establish mootness and the State's hearsay evidence did not fix this defect. The Yazell I court noted the disclaimer on the KASPER website stating that it...