Opinion
113,022.
07-02-2015
Ricky R. REDFORD, Appellant, v. James HEIMGARTNER, Appellee.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Michael J. Smith, legal counsel, of Kansas Department of Corrections, El Dorado Correctional Facility, for appellee.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant.
Michael J. Smith, legal counsel, of Kansas Department of Corrections, El Dorado Correctional Facility, for appellee.
Before Bruns, P.J., Hill and Arnold–Burger, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ricky R. Redford—an inmate at El Dorado Correctional Facility (EDCF)—appeals from a district court order summarily dismissing his K.S.A. 60–1501 petition on the ground that the issue presented was moot. On appeal, Redford contends that an actual controversy still exists notwithstanding the fact that he has been denied parole on two occasions. Specifically, Redford asks this court to find that the Kansas Department of Corrections (KDOC) improperly adjusted his sentence thereby extending his parole eligibility date. Based on our review of the record, however, we agree with the district court and find that this issue is moot. Accordingly, we decline to consider Redford's claim on the merits, and we affirm the district court's decision.
Facts
On September 15, 1986, a jury found Redford guilty of aggravated kidnapping, aggravated sodomy, rape, burglary, criminal damage to property, and aggravated battery. On October 22, 1986, the Sedgwick County District Court sentenced him to serve life in prison for the aggravated kidnapping count; 15 to 20 years for the aggravated sodomy count; 15 to 20 years for the rape count; 3 to 5 years for the burglary count; 1 to 5 years for the criminal damage to property count; and 5 to 20 years for the aggravated battery count. The district court ordered the aggravated sodomy and rape counts to run concurrent to each other and then consecutive to the aggravated kidnapping count. It also ordered the counts for burglary, criminal damage to property, and aggravated battery to run concurrent with each other and consecutive to the aggravated sodomy and rape counts. In sum, Redford was sentenced to serve life plus 20 to 40 years. Lastly, the district court ordered that Redford's sentence should be computed from May 14, 1986.
Subsequently, on May 19, 1989, the Ellsworth County District Court sentenced Redford to serve between 2 and 10 years for one count of solicitation to commit kidnapping and between 2 and 10 years for one count of aggravated assault. The district court ordered both sentences to run concurrent to each other but consecutive with the sentences previously imposed by the Sedgwick County District Court. Because Redford had been incarcerated from October 2, 1986, to August 6, 1987, and again from October 7, 1987, to May 19, 1989, on these counts, the district court adjusted the starting date of the sentence to December 2, 1986, to account for 985 days that Redford had served.
On July 19, 2010, the KDOC reviewed Redford's file and discovered that the Ellsworth County sentence had evidently been excluded from the calculation of his total sentence. As a result, the KDOC changed his aggregate sentence from life plus 20 to 40 years to life plus 22 to 50 years. In addition, his parole eligibility date was extended from May 14, 2011, to May 14, 2012.
On September 24, 2013—after becoming parole eligible—Redford sought and obtained an order nunc pro tunc from the Ellsworth County District Court. The order reiterated that Redford was granted 985 days of jail credit when he was sentenced on May 19, 1989, which permitted Redford to be instantaneously eligible for parole in the Ellsworth County case once he was eligible for parole in the Sedgwick County case. In November 2013, Redford filed a grievance with the Norton Correctional Facility (NCF), alleging that his parole eligibility date had been improperly extended by 1 year. After a lengthy administrative process, the warden denied his complaint in March 2014.
On April 10, 2014, Redford—who was then imprisoned at EDCF—filed a petition for writ of habeas corpus in the Butler County District Court against James Heimgartner, the Warden of EDCF. Redford alleged that he should have been eligible for parole on May 14, 2011, and he requested that the district court order the KDOC to instruct the prisoner review board to conduct a special parole hearing “to negate the prejudicial impact bestowed upon him.” On June 24, 2014, the district court ordered the issuance of a summons, which was not served on Heimgartner until July 28, 2014. Heimgartner filed an answer and motion to dismiss on August 7, 2014, arguing that the matter was moot. On December 1, 2014, the district court filed an order of summary dismissal, stating that the matter was moot. Thereafter, Redford timely appealed.
Analysis
To state a claim for relief under K.S.A. 60–1501, a petition must allege “ ‘shocking and intolerable conduct or continuing mistreatment of a constitutional stature.’ “ Pew v. Sullivan, 50 Kan.App.2d 106, 109, 329 P.3d 496, rev. denied 299 Kan. –––– (2014) (quoting Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 [2009] ). “[I]f, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from incontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists,” then summary dismissal is proper. Johnson, 289 Kan. at 648–49. Our review of a district court's summary denial of a K.S.A. 60–1501 motion is unlimited. See 289 Kan. at 649.
Further, we generally do not decide moot questions or render advisory opinions. See State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). In other words, a case is moot if it does not contain “definite and concrete issues arising between parties with adverse legal interests that are immediate, real, and amenable to conclusive relief.” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 890–91, 179 P.3d 366 (2008). Mootness is a doctrine of judicial policy recognizing that the role of courts is to determine real—rather than abstract or hypothetical—controversies. It is not, however, a question of jurisdiction. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009).
The test for whether an issue is moot is well-settled: “An appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose.” State v. Montgomery, 295 Kan. 837, Syl. ¶ 3, 286 P .3d 866 (2012) ; see State v. Williams, 298 Kan. 1075, 1082, 319 P .3d 528 (2014). Whether a claim is moot is a question of law over which we also exercise unlimited review. See State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).
Redford argues on appeal that a controversy still exists regarding the calculation of his parole eligibility date. He contends that “[r]egardless of the fact that the [parole board] has denied him parole twice, he wrongly had to serve an additional year in order to appear before the [parole board]. And, a remedy of allowing him an additional, immediate hearing before the [parole board] exists.” But Redford fails to cite any statute or regulation that would provide him such a remedy. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (failing to support a point with pertinent authority is akin to failing to brief the issue thereby abandoning the point).
Redford not only petitioned the district court after he had become parole eligible, he did not begin his grievance process until after he became parole eligible. At this point, any attempt by this court to determine when Redford should have initially been eligible for parole would be meaningless. That is to say, the only judgment that we could enter would be ineffectual for any purpose. See May v. Schnurr, No. 111,979, 2015 WL 1514249, at *2 (Kan.App.2015) (unpublished opinion) (petitioner's claim that he should have been eligible for parole 5 years earlier was moot when he was already eligible for parole at the time he filed his K.S.A. 60–1501 petition); Davis v. Kansas Dept. of Corrections, No. 106,453, 2012 WL 687988, at *4 (Kan.App.2012) (unpublished opinion) (“Even if we assume without deciding that Davis' rights were violated by the parole board's decision in 2005 [to deny him parole], the issue presented by Davis is now moot because he already received the only remedy [a second parole hearing] a court is authorized to provide.”).
We recognize that a commonly applied exception to the mootness doctrine is that courts will consider a moot issue that “ ‘is capable of repetition and raises concerns of public importance.’ “ State v. Kurtz, 51 Kan.App.2d 50, 52, 340 P.3d 509 (2014) (quoting Montgomery, 295 Kan. at 841 ). But Redford has not asserted that the issue he raises is capable of repetition nor has he asserted that it is a matter of public importance. Accordingly, we find that Redford has abandoned his right to assert such an argument. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
We also note that Redford filed a reply brief, claiming that its purpose was to rebut facts raised by Heimgartner in his brief. As he did in his initial brief, Redford simply recounts the history of his grievance and attempts to cast the facts in a light most favorable to himself. Appellants may not, however, use a reply brief to restate arguments from their initial brief so that they can “get in the last word.” Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 896, 166 P.3d 1047 (2007). Rather, appellants may use a reply brief to address new issues or material raised for the first time in the appellee's brief. See Supreme Court Rule 6.05 (2014 Kan. Ct. R. Annot. 48). Finally, even if we did consider Redford's reply brief, we find nothing in it that would change the outcome of this appeal.
We, therefore, affirm the district court's conclusion that the issue presented by Redford in his K.S.A. 60–1501 petition is moot.
Affirmed.