STATE v. BARTON (2024)

MEMORANDUM OPINION

Everett Scott Barton appeals the district court's imposition of a term of imprisonment rather than a grant of a dispositional departure to probation. Barton has completed his entire term of imprisonment at the time of this appeal, and thus the State argues that Barton's claim is moot. Because Barton fails to address the State's mootness argument, we dismiss his appeal.

Facts

In February 2023, the district court accepted Barton's no-contest plea to possession of methamphetamine, in violation of K.S.A. 21-5706(a), a crime committed in February 2021. Before sentencing, Barton moved for a dispositional departure to probation or, alternatively, a downward durational departure from his presumptive prison sentence. The district court denied Barton's dispositional departure to probation. But the district court granted Barton's downward durational departure, sentencing him to 24 months in prison.

Barton timely appeals.

Analysis

On appeal, Barton claims that the district court abused its discretion because he gave substantial and compelling reasons for the district court to grant a dispositional departure to probation. The State argues that Barton's claim is moot. Barton did not address mootness in his brief on appeal and failed to file a reply brief addressing the State's mootness arguments.

Whether a case is moot is a question of law over which this court exercises unlimited review. State v. Roat, 311 Kan. 581, Syl. ¶ 3, 466 P.3d 439 (2020). A case is moot when it has been clearly and convincingly shown that the actual controversy has ended and that any judgment entered would not impact any of the parties' rights. 311 Kan. at 584. If the court concludes that the defendant's requested relief would have no impact on his rights, the court may dismiss the appeal as moot. 311 Kan. at 593. Though Kansas appellate courts generally do not decide moot questions or render advisory opinions, mootness is a prudential doctrine—not jurisdictional—and appellate courts have recognized exceptions to that general prohibition. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012).

The party asserting mootness carries the initial burden of establishing that a case is moot. When a defendant appeals only their sentence, the State can demonstrate the appeal is moot by showing that the defendant has fully completed the terms of his or her sentence. Roat, 311 Kan. at 593. Once established, the burden shifts to the party opposing a finding of mootness “to show the existence of a substantial interest that would be impaired by dismissal or that an exception to the mootness doctrine applies.” 311 Kan. at 593. The State argues that Barton's challenge is moot because he has completed serving his entire sentence, filing in support of its argument a notice of change of custodial status showing that Barton was released from custody in late July 2024. See State v. Yazell, No. 116,761, 2021 WL 402078, at *3-5 (Kan. App. 2021) (unpublished opinion).

Nothing in the record controverts the State's notice of Barton's change in custodial status. Barton did not preemptively assert any defenses to a potential mootness argument, and he failed to file a reply brief addressing the State's mootness assertion. Instead, in his brief, Barton requests reversal of his prison sentence, asking for probation instead. Our Supreme Court has held that an abstract right to a correct sentence where the sentence imposed has been served, without more, “is an insufficiently substantial right to warrant further appellate review.” Roat, 311 Kan. at 598. To avoid dismissal due to mootness, litigants “must do more than mention speculative rights; they must give substance to their arguments when asserting that protection of collateral rights necessitates resolution of their underlying appellate issues.” 311 Kan. at 601. Barton has failed to assert any rights—collateral or otherwise—which would be protected by this court's ruling after his release.

Barton has completed all terms of confinement and has failed to show that dismissal of his claim for mootness would impair any of his substantial rights. Because Barton fails to rebut the State's prima facie showing of mootness, we dismiss his claim.

Appeal dismissed.

Per Curiam: