State v. Barnes

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NOT DESIGNATED FOR PUBLICATION

No. 117,783

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT JOE BARNES,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed November 16, 2018.
Appeal dismissed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and POWELL, JJ.

PER CURIAM: At times, before we can address the issues raised by the parties to
an appeal we must decide whether a case is moot. This is one of those cases. Because
Robert Barnes has served his entire prison sentence for this crime, a fundamental
question arises. Can we reduce his period of postrelease supervision if we find that his
criminal history score is inaccurate because of a misclassified Texas burglary conviction?
In other words, is this case merely asking for an advisory opinion? From our reading of
the law and after considering the cases, as well as the procedural posture of this case, we
conclude that our holding on Barnes' criminal history does not affect his period of
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postrelease supervision. That period is set by statute and not the sentencing court. We
hold that this case is moot and dismiss the appeal.

Barnes is in prison, awaiting the start of a new sentence for a more recent crime.

This is an appeal involving only Finney County Case No. 11CR551, where Barnes
pled no contest in 2011 to distribution of methamphetamine and a drug tax stamp
violation. He committed these crimes in February 2011 while on probation in another
Finney County case and the court revoked his probation in that case and ordered him to
serve that prison sentence. He was ordered to serve this sentences consecutively. The
court set his sentence here at 44 months' imprisonment and 24 months' postrelease
supervision. Before sentencing, the court decided Barnes' criminal history score was B
based, in part, on a 1978 "Burglary of a Habitat" conviction in Texas.

In April 2016, Barnes completed the prison portion of his sentence and was
released on postrelease supervision. Things did not go smoothly. While on postrelease
supervision, he committed two new felonies. For these new crimes, Barnes went back to
prison to serve the remainder of his postrelease supervision term in prison and then was
sentenced to 26 months in prison to be served consecutive to his postrelease supervision
sentence here.

Some general observations about mootness.

Our policy in Kansas is clear. Appellate courts do not decide moot questions or
render advisory opinions. A claim is moot if "'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.' [Citations
omitted.]" State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014).

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Our role is to determine real controversies over the legal rights of persons and
property that are actually involved in the particular case properly brought before us and to
adjudicate those rights so that the determination will be operative, final, and conclusive.
See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). Because mootness is
a doctrine of court policy, which was developed through court precedent, appellate
review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).

The State argued before the district court that the sentencing issue "may be moot"
because Barnes had already served his prison sentence and was on postrelease
supervision. The court asked Barnes if he was in custody for this case and Barnes
conveyed that he was not. Instead, he was in custody for a different case. The State asked
the court to reach the merits of the sentencing issue and the court did.

Before this court, the State submitted a notice of change of Barnes' custodial status
under Supreme Court Rule 2.042 (2018 Kan. S. Ct. R. 18). Barnes did not object. The
State also added to the record on appeal a copy of the journal entry of judgment and
presentence investigation report from Finney County case No. 17CR65. On January 25,
2017, Barnes committed attempted possession of drug paraphernalia and criminal
possession of a firearm by a convicted felon. He was sentenced to 26 months in prison to
run consecutive to his sentence in this case. The presentence investigation report states
that Barnes committed this new crime while on "parole" in case No. 11CR551. The
document states Barnes was "Paroled in FI 11-CR-551 on 4/15/16." The reference to
"parole" rather than "postrelease supervision" appears to be inadvertent.

Why this case is moot.

At least six panels of this court have found challenges to defendants' criminal
history scores moot when the defendants had completed the prison portion of their
sentences and were on postrelease supervision. See State v. Gregory, No. 113,207, 2017
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WL 1104475, at *4-5 (Kan. App. 2017) (unpublished opinion); State v. Terrell, No.
115,145, 2017 WL 1035328, at *2-3 (Kan. App. 2017) (unpublished opinion); State v.
Her, No. 112,815, 2016 WL 3365755, at *4 (Kan. App. 2016) (unpublished opinion);
State v. Reed, No. 113,845, 2016 WL 2775148, at *1-2 (Kan. App. 2016) (unpublished
opinion); State v. Brown, No. 112,825, 2015 WL 9286987, at *2-4 (Kan. App. 2015)
(unpublished opinion); State v. Dunn, No. 111,283, 2015 WL 2414362, at *2 (Kan. App.
2015) (unpublished opinion). We cannot ignore their common rationale.

The cases' reasoning presumes that postrelease supervision is mandatory. See
K.S.A. 2010 Supp. 22-3717(d)(1). The length of postrelease supervision is determined by
the severity level of the crime of conviction. Simply put, a defendant's criminal history is
irrelevant in determining this component of the sentence. See K.S.A. 2010 Supp. 22-
3717(d)(1)(A)-(C). Twenty-four months is the statutory minimum for a severity level 3
drug crime. See K.S.A. 2010 Supp. 22-3717(d)(1)(B)

We also note that a defendant who is resentenced is not entitled to a credit against
his or her postrelease supervision period for the time he or she already served in prison
more than the prison time imposed at the resentencing. State v. Gaudina, 284 Kan. 354,
Syl. ¶ 1, 160 P.3d 854 (2007).

The Gaudina court's analysis provides us guidance. The court looked at various
Kansas statutory provisions and determined that it was the Legislature's intent that
postrelease supervision be a distinct period of the offender's sentence. 284 Kan. at 361;
see, e.g., K.S.A. 22-3722 (distinguishing parole from postrelease supervision); K.S.A.
2010 Supp. 22-3717(q) (inmates are released on postrelease supervision upon the
termination of the prison portion of sentence). "[T]he legislature's intent [is] that a
defendant is to serve a bifurcated sentence—imprisonment followed by postrelease
supervision—and that these two parts are effectively independent from each other." 284
Kan. at 368. The court also concluded that the statutes authorized no credit to be applied
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to the postrelease supervision portion of the sentence for excess time served in prison.
284 Kan. at 362-63.

Applying those lessons here, we see that if Barnes was resentenced based on a
criminal history score of C rather than B, he would still be in a presumptive prison box.
See K.S.A. 2010 Supp. 21-4705(a). Thus, a change in Barnes' criminal history score
would have no legal effect on his period of postrelease supervision, because that results
from the severity level 3 of his methamphetamine crime.

This is true even though it appears Barnes will have to serve the balance of his
postrelease supervision term in prison. Under K.S.A. 2010 Supp. 75-5217(c), if a
defendant commits a felony while on postrelease supervision, the defendant "shall serve
the entire remaining balance of the period of postrelease supervision." The Gaudina court
acknowledged this possibility. "Although the defendant may again be incarcerated if
[postrelease] conditions are violated, the time served is in addition to the original prison
term not in place of the original term." 284 Kan. at 362-63.

This scenario occurred in State v. Gray, No. 97,403, 2008 WL 496153 (Kan. App.
2008) (unpublished opinion). Gray raised a sentencing issue. Like here, he had served the
prison portion of his sentence and was released on postrelease supervision. While on
postrelease supervision, he committed new felonies and was ordered to serve a new
prison sentence consecutive to the postrelease supervision term. And under K.S.A. 2006
Supp. 75-5217(c), he had to serve the balance of his postrelease supervision term in
prison. The court determined the appeal was moot. Gray could not be awarded credit
against the postrelease supervision portion of his sentence for the time he spent in prison
above the prison time ordered at resentencing. 2008 WL 496153, at *4-5.

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Finally, we note that resentencing Barnes using a criminal history score of B
would not affect Barnes' remaining postrelease supervision obligations. Thus, that
judgment would be ineffectual for any purpose and this appeal is moot.

Appeal dismissed.