State v. Hilton (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 102,256
102,257

STATE OF KANSAS,
Appellee,
v.

HEATHER PAGE HILTON,
Appellant.

SYLLABUS BY THE COURT

Because answering the question posed on petition for review would require this
court to reach and decide a predicate question on the authorization for consecutive
probation periods that is not contested by the parties, and because the defendant has
served her sentence, this court vacates the Court of Appeals panel's decision and
dismisses this appeal.

Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 586, 311 P.3d 1161 (2013).
Appeal from Ellis District Court; THOMAS L. TOEPFER, judge. Opinion filed May 22, 2015. Appeal
dismissed.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.

Thomas J. Drees, county attorney, argued the cause, and Kristafer R. Ailslieger, deputy solicitor
general, Steve Six, former attorney general, and Derek Schmidt, attorney general, were on the briefs for
appellee.


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Per Curiam: This court accepted this case on the petition for review filed by
defendant Heather Page Hilton for the specific purpose of deciding whether both the first
and second of Hilton's two consecutive 12-month probation terms could be revoked as a
result of a violation that occurred during the first 12 months. A panel of our Court of
Appeals had affirmed the district court's revocation of both of Hilton's probation terms.
State v. Hilton, 49 Kan. App. 2d 586, 311 P.3d 1161 (2013).

On the way to the panel's ruling, the Court of Appeals judges left for another day
the predicate issue of whether the district judge was empowered to grant consecutive
probation terms to Hilton in the first place. 49 Kan. App. 2d at 589-90. Judge G. Gordon
Atcheson expressed some reservation about the existence of such a power in a brief
concurrence. 49 Kan. App. 2d at 594-95.

Earlier, we had effectively compelled the panel to address the merits of the dual
revocation issue by granting a petition for review on the Court of Appeals' dismissal of
Hilton's appeal as moot and summarily reversing and remanding the case. State v. Hilton,
295 Kan. 845, 286 P.3d 871 (2012). Although Hilton had already completed service of
the prison terms underlying the consecutive probations, we then believed the dual
revocation issue to be one of public importance likely to arise in other cases. 295 Kan. at
851-52. As such, we further believed it to be a worthy exception to application of the
mootness doctrine. 295 Kan. at 851-52.

On closer examination, we have concluded that the Court of Appeals had it right
in the first place and that this appeal should be dismissed as moot.

It is logically and legally impossible to approve or disapprove of the panel's
rationale in affirming the dual revocation without first addressing whether the district
judge had the power to grant consecutive probation terms. But it would be unwise to
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decide that predicate question when the parties have not truly set up or argued opposing
viewpoints and no client's fate hangs in the balance. Here, the parties agreed on the grant
of consecutive probation terms in the district court, and neither questioned their propriety
before the Court of Appeals or before this court. Our adversarial system typically
depends upon committed advocacy to fully explore and expose strengths and weaknesses
in pro and con arguments on the legal issues that come before us. We will follow the
typical pattern here and await a more appropriate setting to consider whether a district
judge may grant consecutive probation terms and, if so, under what circumstances such
terms may be revoked.

The Court of Appeals decision is vacated. This appeal is dismissed.