State v. Johnson

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NOT DESIGNATED FOR PUBLICATION

No. 119,049

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRENDA JO JOHNSON,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed May 3, 2019.
Appeal dismissed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GARDNER, J., and WALKER, S.J.

PER CURIAM: Brenda Jo Johnson pled guilty to one count of attempted possession
of methamphetamine. The district court sentenced Johnson to an underlying prison
sentence of 14 months but granted her probation for a period 12 months. The district
court ultimately revoked her probation and ordered her to serve her underlying prison
sentence. Johnson appeals, arguing the district court erred in bypassing the intermediate
sanctions required before probation can be revoked. But Johnson is no longer serving the
term of prison imposed as a result of her probation revocation; thus, the propriety of the
district court's decision to revoke her probation has been rendered moot.
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FACTS

On August 9, 2016, Johnson was charged with possession of methamphetamine,
possession of marijuana, and possession of drug paraphernalia. The parties ultimately
entered into a plea agreement, under which Johnson would plead guilty to one count of
attempted possession of methamphetamine and the remaining charges would be
dismissed. Based on her criminal history score and the severity level of the crime, the
presumptive sentence under the sentencing guidelines was probation. But Johnson
committed the offense while she was on felony probation. Because of this, a special rule
gave the sentencing court discretion to impose a prison sentence instead of presumptive
probation without it being deemed a departure. See K.S.A. 2018 Supp. 21-6604(f)(1).
The district court imposed an underlying prison sentence of 14 months but granted
Johnson probation for a period 12 months.

Johnson violated several conditions of her probation within a few months of
sentencing. Specifically, Johnson:

1. Tested positive for or admitted to methamphetamine use on two occasions;
2. Failed to submit to a urine analysis test on a third occasion; and
3. Failed to attend drug and alcohol treatment as directed.

The State filed a motion to revoke probation. A revocation hearing was held on the
morning of December 19, 2017, but Johnson did not appear until that afternoon based on
what Johnson described as a mistake in calendaring. When she did appear, the district
court continued the hearing. On December 26, 2017, Johnson waived her right to an
evidentiary hearing and stipulated to the probation violations. Johnson requested the
district court impose an intermediate sanction. The State requested that Johnson be
ordered to serve her underlying prison sentence. In support of its request, the State
pointed to Johnson's long history of drug offenses, her failure to complete substance
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abuse treatment, and her criminal history. The State also observed that the district court
had declined to apply the discretionary special rule in deciding to grant Johnson a term of
probation.

After finding Johnson violated the terms of her probation, the district court
revoked probation, bypassed intermediate sanctions, and imposed the underlying
sentence of 14 months in prison. In doing so, the district court found that Johnson was not
amenable to probation, stating:

"THE COURT: Ms. Johnson, I don't find you amenable to probation, given the
long-term nature of your drug problems. And while I do believe that the past doesn't
necessarily control today and tomorrow, the truth is you did use and you did walk away
from treatment.
"I am going to find that the resources really are not substantial enough to—to
reform you, that perhaps you are not in the right position at this time to take advantage of
drug treatment. You are not amenable to probation. Probation will be revoked, and you
will be remanded to [Kansas Department of Corrections]."

Johnson filed a motion to reconsider, alleging that the district court failed to state
with specificity the reason why it was skipping over the intermediate sanction. At a later
hearing on this motion, the State reiterated Johnson's long history of drug problems. The
State also requested the district court consider her previous terms of probation and "the
dangers of [methamphetamine] and how [it] harms somebody's health and well-being."
The district court adopted these reasons and denied the motion to reconsider. More
specifically, the district court explained:

"Ms. Johnson has been in front of me many times. Ms. Johnson has a long-standing drug
history. . . . But when she continues to use when she's placed on . . . probation, and she
walks out of drug treatment, I don't find Ms. Johnson amenable to treatment. . . . I don't
think Ms. Johnson, from her behavior since, has shown that she really is amenable to
treatment."
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The district court also highlighted that it had declined to impose the special rule to
impose prison at sentencing because Johnson really wanted substance abuse treatment.
Her failure to follow through, the district court reasoned, showed that she could not be
successful on probation.

Johnson timely appealed. While her appeal was pending, Johnson began serving
her prison sentence. She completed the prison portion of that sentence on August 24,
2018, and currently is on postrelease supervision. Following her release, the State filed a
motion to dismiss the appeal as moot but it was denied.

ANALYSIS

On appeal, Johnson argues the district court failed to make the specific findings
that were required to bypass intermediate sanctions and go directly to revocation of
probation. Based on this failure, Johnson asks us to reverse the revocation of her
probation and remand with direction for the district court to impose an intermediate
sanction.

Before addressing the merits of her argument, we first must address the State's
claim that Johnson's release from prison and placement on postrelease supervision
renders her appeal moot. As a general rule, Kansas courts do not render advisory opinions
or decide moot questions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012).
Rather, "the role of a court is to '"determine real controversies relative to the legal rights
of persons and properties which are actually involved in the particular case properly
brought before it and to adjudicate those rights in such manner that the determination will
be operative, final, and conclusive."'" 295 Kan. at 840. To be a real, justiciable
controversy, a case must involve definite and concrete issues and "adverse legal interests
that are immediate, real, and amenable to conclusive relief." State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008). If it is clearly and convincingly
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shown that (1) the actual controversy has ended; (2) the entry of judgment would be
ineffectual for any purpose; and (3) a judgment would have no impact on any of the
rights of the parties, then the case must be dismissed as moot. McAlister v. City of
Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009).

As noted above, Johnson asks us to reverse the decision to revoke her probation
and remand for the district court to impose an intermediate sanction and reinstate her
probation. But this is a request we do not have the ability to grant. Johnson already has
served the prison term to which she was sentenced. Probation operates as a substitute for
a term of imprisonment and therefore cannot be imposed if the underlying prison
sentence has been completed. State v. Kinder, 307 Kan. 237, 243-44, 408 P.3d 114
(2018). So a defendant who has completed the incarceration portion of a sentence cannot
be placed on probation. In addition, an intermediate sanction such as the one Johnson
requests cannot be longer than the time remaining on the defendant's prison sentence. See
K.S.A. 2018 Supp. 22-3716(c)(7). Because Johnson has served her full term of
imprisonment, she cannot be subject to the short-term intermediate sanction or to
reinstated probation as she requests.

Johnson did not address the mootness issue in her brief nor did she file a reply
brief to respond to the State's arguments. She did, however, file a response to the State's
motion to dismiss, in which she argued that this appeal is not moot because she is still on
postrelease supervision and resolving the appeal in her favor could result in its removal.
While Johnson is correct that she would not be on postrelease supervision if her probation
was not revoked, that alone is not enough to turn this case into a real, justiciable
controversy. This is particularly true where, as here, the issue concerns the propriety of
the probation revocation and the relief requested is an intermediate sanction and the
reinstatement of probation, which is a request we cannot grant.

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Alternatively, Johnson argues that the repetition and public importance exception
to the mootness doctrine applies. But these exceptions to the mootness doctrine do not
apply. In this context, public importance is defined as "something more than that the
individual members of the 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 as individuals." State v. Hilton, 295 Kan. 845, Syl. ¶ 5, 286 P.3d 871
(2012). Nothing in the record suggests that this case, a routine probation revocation, is
likely to interest the public for any reason beyond simple curiosity. It is similarly unlikely
to guide their behavior in the future.

For the reasons stated above, we find there is no longer a real, justiciable case or
controversy for this panel to resolve. See Montgomery, 295 Kan. at 844 (If an offender
who is challenging the revocation of his or her probation completes the underlying
sentence before the appeal is heard, then the "appeal presents a request for an advisory
opinion on a moot issue.").

Appeal dismissed as moot.