Opinion
No. 106,274.
2012-06-22
Jason Tyrone LEE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Allen District Court; Daniel D. Creitz, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Allen District Court; Daniel D. Creitz, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Christopher Phelan, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason Tyrone Lee appeals from the district court's decision to summarily dismiss his K.S.A. 60–1507 motion for writ of habeas corpus, which asserted a jurisdictional challenge to revocation of his probation in the underlying criminal case. For the reasons stated below, we affirm the summary dismissal.
Facts
On November 5, 2007, Lee entered a plea of nolo contendere to one count of forgery. On December 3, 2007, Lee was sentenced to 18 months' probation, with an underlying sentence of 18 months' imprisonment. Based on the date of sentencing and the term of sentence imposed, Lee's probation was scheduled to expire on June 3, 2009.
On May 26, 2009, Lee's probation officer filed an affidavit asserting that Lee had violated the conditions of his probation and an application requesting the State to file a motion to revoke Lee's probation. On May 29, 2009, the State filed the motion to revoke as requested. Later that afternoon, the court issued an arrest warrant for Lee to appear and answer the charge asserting that he had violated the conditions of his probation. The warrant was executed June 13, 2009, and Lee was arrested that same day.
The first court hearing after Lee's arrest was July 6, 2009. Lee appeared in person and through counsel, and the parties agreed to set a revocation hearing for August 3, 2009. But Lee failed to appear at the August hearing, and the district court issued a bench warrant for his arrest. The court ultimately withdrew the warrant on August 4, 2009, after a phone conference with Lee's attorney established that Lee erroneously believed the hearing was August 4. The district court rescheduled the probation revocation hearing for September 14, 2009. At the September hearing, Lee stipulated that he violated the terms of his probation and waived his right to a hearing on the issue. The district court revoked—and then immediately reinstated—Lee's probation with the condition that the term be extended 1 year from the date of the hearing.
On February 18, 2010, the State filed a second motion to revoke Lee's probation. At the April 19, 2010, hearing on this motion, the district court revoked Lee's probation and ordered him to serve his underlying sentence. On January 3, 2011, Lee filed a K.S.A. 60–1507 motion alleging the district court lacked the requisite jurisdiction to revoke and reinstate his probation on September 14, 2009, because his term of probation already had expired.
The district court summarily dismissed Lee's K.S.A. 60–1507 motion, and Lee appealed. Because it appeared from the record that Lee successfully had completed the additional term of probation imposed while the appeal was pending, this court issued an order on March 23, 2012, directing the parties to show cause why Lee's appeal should not be dismissed as moot. Lee filed a response opposing the dismissal, and the State did not file a pleading at all.
Standard of Review
“[T]he standard of review for the summary dismissal of K.S.A. 60–1507 motions is de novo.” Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Such a motion may be summarily denied only if the pleadings, files, and records of the case conclusively show that the movant is entitled to no relief. See K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2011 Kan. Ct. R. Annot. 259); Trotter v.. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Analysis
In support of his request for habeas relief, Lee claims the district court did not have the jurisdiction necessary to revoke his probation because his term of probation had expired prior to the State initiating proceedings. Lee's claim fails for both procedural and substantive reasons.
As a preliminary matter, we note that Lee failed to file a direct appeal from either the September 14, 2009, or the April 19, 2010, orders revoking his probation. As a result, this matter is not properly before us for review. Ordinarily, claimed errors in a probation revocation proceeding must be raised on direct appeal. “In the absence of irregularities of constitutional proportions a proceeding to revoke probation is not reviewable by a motion to vacate, set aside or correct a sentence under K.S.A. 60–1507.” Toman v. State, 213 Kan. 857, Syl. ¶ 2, 518 P.2d 501 (1974).
Even if the matter was properly before us, the fact that Lee successfully has completed the additional term of probation imposed renders this appeal moot and subject to dismissal. As a general rule, this court does not decide moot questions or render advisory opinions. The court may properly dismiss a cause of action as moot upon finding that the “ actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” State v. Montgomery, 43 Kan.App.2d 397, 398, 225 P.3d 760 (2010), rev. granted 291 Kan. 916 (2011) (citing In re M.R., 272 Kan. 1335, Syl. ¶ 2, 38 P.3d 694 [2002] ).
Lee presents two arguments in support of his position that the question presented on appeal is not moot. First, Lee argues a finding that the district court lacked jurisdiction to revoke his probation necessarily means that his probation would have been completed earlier and thus could move to expunge his crime earlier. But the possibility that he would have completed his term of probation at an earlier time is an issue that appears to have been rendered moot by the fact that Lee already has successfully completed probation. To that end, Lee has not cited, nor has our research found, any remedy available to Lee in the event he prevails on his claim.
Second, Lee argues that if criminal charges are ever brought against him in the future, the fact that his probation was revoked could be used to argue that he is not amenable to probation. But this argument is too speculative to refute a finding of mootness. Montgomery, 43 Kan.App.2d at 400 (citing Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 [1998] ). Given Lee successfully has completed his probation, the appeal of his probation revocation seeks a judgment upon a matter which, if rendered, could not have any practical effect upon any existing controversy.
In addition to the procedural grounds for dismissal discussed above, Lee's claim that the district court lacked jurisdiction to revoke his probation also fails on the merits. A district court has jurisdiction to revoke probation if proceedings are initiated before the probation term expires. State v. Williams, 20 Kan.App.2d 142, 148, 884 P.2d 743 (1994). Lee's probation was scheduled to expire on June 3, 2009. The probation officer filed an application for revocation of community corrections on May 26, 2009, which is over a week before Lee's term of probation was set to expire. See State v. Wonders, 27 Kan.App.2d 588, 590, 8 P.3d 8,rev. denied 269 Kan. 940 (2000) (probation officers are arms of the court and can initiate probation revocation proceedings). The State filed its motion for revocation and request for a probation revocation warrant on May 29, 2009, which is 5 days before Lee's term of probation was set to expire.
Because the record conclusively shows revocation proceedings in this matter were timely initiated, summary dismissal of Lee's K.S.A. 60–1507 motion on the merits was proper.
Affirmed.