Opinion
No. 110,564.
2014-10-31
STATE of Kansas, Appellee, v. James KOLLMAN, Appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, judge.Joanna Labastida, of Kansas Appellate Defender Office, for appellant.Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Kevin P. Moriarty, judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Kollman appeals the calculation of his jail time credit between two cases (10 CR 3028 and 11 CR 1287). Kollman's probation in 10 CR 3078 was terminated by the district court and his sentence in 11 CR 1287 was released for “time served” on March 26, 2014. Kollman's request for additional credit for time served in 11 CR 1287 is moot, and this appeal is dismissed.
Facts
While on probation in 10 CR 3078, Kollman pled guilty to obstruction of legal process in 11 CR 1287, was sentenced to 13 months' imprisonment to run consecutive to 10 CR 3078, and was placed on probation for 12 months. At Kollman's sentencing hearing in 11 CR 1287, he was awarded one day of jail time credit in 11 CR 1287, and 86 days of jail time credit in 10 CR 3078.
Kollman subsequently stipulated to violating his probation in 11 CR 1287, based on his DUI in Osawatomie and failure to report to his probation officer. At his probation revocation hearing, Kollman raised the argument for the first time that his jail time credit had been improperly allocated between 10 CR 3078 and 11 CR 1287. Kollman admits that when he was charged in 11 CR 1287, he was on probation in 10 CR 3078. Kollman now claims that the time he spent in jail after his arrest in 11 CR 1287 should have been credited against that case and not credited toward completing his sentence in 10 CR 3078. He makes that claim because the district court never formally revoked his probation in 10 CR 3078 following a motion by the State to revoke his probation. Thus, Kollman claims without a formal revocation of his probation in 10 CR 3028, all the time actually served has to be credited to 11 CR 1287. The district judge denied Kollman's request to have his jail time credit in 11 CR 1287 recalculated, stating:
“[T]he previous case, 10 CR 3078, ran consecutive to this case, and this case ran consecutive to that case. The defendant served all his time in 10 CR 3078. All the time that was served in 10 CR 3078 goes to that case number. After his time was served in that matter, if he was in custody at that point in time, it goes towards this case. I don't know where that puts us on days, because I'm not figuring it that way. I'm just doing it on systematic situation. Now, he's—even if they run consecutive, you don't get double credit. He flattened it over there, he's done with that one. He's got the credit for it. It's over with.”
The district court approved Kollman for Therapeutic Community, a long-term residential drug treatment center, and reinstated and extended his probation for 12 months. Kollman appealed the district court's denial of jail credit and all adverse rulings at the probation hearing. On March 24, 2014, the district court ordered Kollman released on 11 CR 1287 effective March 26, 2014, for time served.
ANALYSIS
Kollman argues the district court erred when it denied his request to modify the allocation of jail time credit for time served in 11 CR 1287 when he was also in custody under 10 CR 3078. Kollman argues that the time he served awaiting trial in 11 CR 1287 should have been applied to 11 CR 1287 not 10 CR 3078 because although he was also in custody for probation violations in 10 CR 3078, his underlying sentence was never imposed when his probation was terminated. The State argues this issue became moot when the district court modified Kollman's sentence in 11 CR 1287 to time served. Kollman's Jail Time Credit Appeal Became Moot When the Sentencing Court Modified His Sentence to Time Served.
Because mootness is a doctrine of court policy developed through court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). An appeal will not be dismissed for mootness unless “ ‘it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.’ “ State v. Montgomery, 295 Kan. 837, 840–41, 286 P.3d 866 (2012). As a general rule, an appellate court does not decide moot questions or render advisory opinions. 295 Kan. at 840.
“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. Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue. [Citations omitted.]” State v. Dumars, 37 Kan.App.2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007).
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. Hilton, 295 Kan. at 851.
Kollman's appeal is moot. The district court released Kollman for time served in 11 CR 1287. Kollman's appeal here deals with 11 CR 1287 as his probation in 10 CR 3078 has long been terminated. When the district court granted Kollman time served, it ended the actual controversy of this appeal. Recalculating Kollman's jail time credit would serve no purpose in 11 CR 1287 because the district court found his sentence was satisfied on March 26, 2014. Also, Kollman is no longer imprisoned so recalculating his jail time credit would not impact his rights. This is a very fact specific scenario and unlikely to be routinely repeated or raise concerns of public importance. Kollman's appeal is dismissed as moot.
Appeal dismissed.