Opinion
No. 109,934.
2014-09-26
STATE of Kansas, Appellee, v. Anthony J. COTTON, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony J. Cotton asks us to overturn the district court's order revoking his probation while he was still in prison for an unrelated crime. Because Cotton has completed the entire sentence for these crimes and the State has no authority to supervise or punish Cotton in any way, we hold this appeal is moot. Cotton maintains that this appeal is not moot because the revocation of his probation affects the date he can legally possess a firearm. We hold the collateral consequence claimed by Cotton—the legal prohibition of possessing firearms—starts from Cotton's conviction, not the revocation of his probation, and such a consequence is too remote for us to conclude that he would have successfully completed his probation. Accordingly, we dismiss his appeal.
Cotton pleaded guilty to two counts of criminal threat. The district court imposed a controlling 16–month prison sentence and released him on probation for 12 months. The court imposed “standard gang conditions” as a condition of probation. After sentencing, Cotton was sent to prison on an unrelated case.
Cotton admits that while he was in prison he was involved in a fight with another gang member and he corresponded with known gang members by mailing letters and a gang-related photograph. When Cotton was released from prison for his other case, he was immediately arrested for violating probation in this case. On October 5, 2011, Cotton's probation was revoked.
Cotton argues he was not on probation in this case because the district court ordered his sentence to run consecutive to other cases, and his probation could not commence until he was out of prison for other convictions.
The State asks us to dismiss Cotton's appeal, contending it is moot. Cotton was discharged from custody of the KDOC on November 11, 2013. The State claims Cotton is not entitled to relief. The State filed a motion with this court asking that the case be dismissed as moot. The motions panel denied the motion “on present showing.” Cotton argues this court has thus already rejected the mootness argument “on present showing.” We do not agree with Cotton.
The ruling of the motions panel is not a judgment on the merits of the issue but is rather a redirection of the issue to the panel assigned to hear the appeal. See Kansas Court of Appeals Internal Organization and Procedure, I.C. (2013 Kan. Ct. R. Annot. 105). If they so desire, the parties can brief the issue and argue its merits to the panel assigned to hear the appeal. Indeed, the State, as appellee, raised the mootness claim in its brief, and Cotton filed a reply brief. The issue is properly before us.
In general, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011).
“Mootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. [Citations omitted.] Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue.” State v. DuMars, 37 Kan.App.2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007).
Cotton argues the first exception is applicable due to adverse collateral consequences on his future rights. He claims future judges might use his probation revocation against him. Cotton also contends this issue is not moot because this revocation affects the date he can legally possess firearms.
In State v. Montgomery, 295 Kan. 837, 286 P.3d 866 (2012), the Kansas Supreme Court cited the United States Supreme Court's rulings on the issue of mootness found in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The court distinguished two types of collateral consequences:
“ Spencer distinguished between two types of collateral consequences that may be present after the expiration of a sentence: (1) concrete or continuing consequences that are ‘imminently threatened, or that [are] imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses) [Citation omitted.]; or (2) hypothetical consequences that are speculative or mere possibilities, such as the potential use of a parole revocation as a factor to deny parole in a future case. [Citation omitted.]” Montgomery, 295 Kan. at 843.
Because Montgomery had completed his sentence, the State had no authority to punish or supervise him. Our Supreme Court ultimately dismissed Montgomery's appeal because the issue was moot. 295 Kan. at 844.
Cotton claims future judges might use his probation revocation against him. A similar argument was rejected by another panel of this court in State v. Brown, No. 95,985, 2008 WL 2422761 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 766 (2008). The panel relied on the reasoning in Spencer and held the “adverse collateral consequences alleged ... are too speculative to refute a finding of mootness.” 2008 WL 2422761, at *2. We are similarly persuaded. Such an argument is at most mere speculation about possibilities, not a genuine consequence of his probation revocation.
We find Cotton's argument about legally possessing a firearm equally unpersuasive. K.S.A.2013 Supp. 21–6304(a)(3)(A) provides that anyone who is convicted of or released from imprisonment for the felony of making a criminal threat, as Cotton was here, cannot legally possess a firearm for 10 years. While it is true that his probation revocation does affect the date he can legally possess a firearm, it is too remote for this court to conclude that Cotton would have successfully completed his probation had it not been revoked while he was in prison. Cotton's collateral consequence here does not stem from the probation revocation, but from his conviction.
Cotton has completed the entire sentence for these charges, and the State has no authority to further supervise or punish him. The adverse collateral consequences he claims are too speculative for us to invoke an exception to the rule that appellate courts will not entertain moot issues.
Appeal dismissed as moot.