Opinion
111,283.
05-15-2015
STATE of Kansas, Appellee, v. Donald DUNN, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Boyd K. Ishewood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Boyd K. Ishewood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Donald L. Dunn, Jr., has appealed the sentence the Sedgwick County District Court imposed on him for felony theft on the grounds his criminal history was miscalculated because a pair of Kansas convictions predating the sentencing guidelines were scored as person felonies rather than nonperson felonies. Dunn completed the prison sentence and has been on a 12–month period of postrelease supervision. As a result, Dunn's challenge to his criminal history is moot. We, therefore, dismiss that part of the appeal. Dunn also contends his criminal history had to be proved to a jury—an argument the Kansas Supreme Court has consistently rejected. On that point, we affirm.
In a negotiated deal with the State, Dunn pleaded guilty to felony theft for an elaborate shoplifting adventure at a Wichita department store. The State agreed to recommend the mitigated guidelines sentence and to refrain from charging Dunn with another theft. Dunn sought dispositional and durational sentencing departures and challenged various aspects of his considerable criminal history.
At sentencing in December 2013, the district court granted the motion for dispositional departure because many of Dunn's convictions were old and Dunn had sought help for his mental health problems and drug addiction. The district court denied Dunn's challenges to his criminal history. The district court imposed a standard guidelines sentence of 16 months in prison to be followed by a postrelease supervision term of 12 months and placed Dunn on probation. Dunn filed a notice of appeal.
Since then, Dunn violated his probation. The district court revoked the probation and ordered Dunn to serve the prison sentence. As the parties acknowledge in their briefing on appeal, Dunn completed the prison sentence and had been placed on postrelease supervision by the time the case came before us for resolution. The parties have addressed mootness in the briefs.
On appeal, Dunn says his two Kansas convictions in 1989 for aggravated robbery should have been scored as nonperson felonies based on the analogous treatment of preguideline out-of-state convictions in State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. The State doesn't agree. But we need not venture into the Murdock thicket. The Murdock decision has prompted conflicting views from this court as to the treatment of preguideline in-state convictions for criminal history purposes. Compare State v. Waggoner, 51 Kan.App.2d 144, 156–57, 343 P.3d 530 (2015) ; State v. Smith, No. 109,165, 2015 WL 1122951, at *24–28 (Atcheson, J., dissenting in part and concurring in part) (Kan.App.2015) (unpublished opinion). In April 2015, the governor signed into law a measure aimed at legislatively overruling Murdock retroactively. See H.B.2053.
As we explain, even if Dunn were correct, a ruling from this court now would have no legal impact on him or his punishment in this case. Accordingly, the issue is moot. A controversy becomes moot when judicial resolution of an issue presented would no longer affect the legal rights or alter the legal relationship of the parties. State v. Montgomery, 295 Kan. 837, 840–41, 286 P.3d 866 (2012) ; Rodarte v. Kansas Dept. of Transportation, 30 Kan.App.2d 172, 183, 39 P.3d 675, rev. denied 274 Kan. 1113 (2002). Courts typically do not address issues that have become moot, since a ruling would amount to an advisory opinion. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896–97, 179 P.3d 366 (2008).
A defendant's criminal history score typically calibrates the presumptive sentencing range for the crime of conviction, here Dunn's felony theft. The greater the criminal history, the longer the presumptive sentence. And person felonies count more heavily in a criminal history than nonperson felonies. But, as everyone agrees, Dunn has completed his term of imprisonment.
Dunn, however, remained on postrelease supervision at the time we considered his appeal. (There is some chance he has completed that part of his punishment, as well. But that would simply present another reason his point would be moot.) Postrelease supervision is mandatory. K.S.A.2014 Supp. 22–3717(d)(l). The length of the supervision is dictated by the severity level of the crime of conviction; criminal history is irrelevant. K.S.A.2014 Supp. 22–3717(d)(l)(A)–(C). A 12–month period of postrelease supervision is the statutory minimum. So some change in Dunn's criminal history score would have no legal effect on his period of postrelease supervisor For example, assuming Dunn's prison sentence were actually too long because of a mistake in determining his criminal history, the excess time of incarceration could not be applied to reduce a mandatory period of postrelease supervision. See State v.. Gaudina, 284 Kan. 354, 368, 160 P.3d 854 (2007).
Even assuming Dunn received some goodtime credit on his 16–month prison sentence and, thus, was released early, that would not change the length of his postrelease supervision. K.S.A.2014 Supp. 21–6821(e)(2) (goodtime credit does not extend postrelease supervision except for specified sexually violent crimes). And if Dunn were to violate the terms of his postrelease supervision, he would be required to return to prison for some or all of the remaining supervision period. K.S.A.2014 Supp. 75–5217(c), (d). The length of Dunn's prison sentence has nothing to do with any of those circumstances. In turn, his criminal history score would not affect them.
In short, Dunn's criminal history score no longer has any legal impact on his status within the criminal justice system based on the felony theft conviction. Nor could it in the future. As a result, a ruling in Dunn's favor would change nothing. That is the definition of mootness. Accordingly, we dismiss Dunn's challenge to his criminal history as moot.
For his second point, Dunn argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. Dunn relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition.
Dunn acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's continuing reaffirmation of Ivory. State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) ; State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Affirmed in part and dismissed in part.