Opinion
No. 106,674.
2012-11-2
STATE of Kansas, Appellee, v. Mitchell COOPER, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Eric Fournier, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Eric Fournier, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mitchell Cooper appeals the district court's revocation of his probation and order he serve his underlying sentence. Finding no error, we affirm.
Cooper pled no contest on August 27, 2009, to one count of possession of marijuana with intent to sell, and the district court accepted his plea. Cooper's presumptive sentence fell into the border box of the Kansas Sentencing Guidelines grid. The court then sentenced Cooper in accordance with the plea agreement—ordering him to serve 18 months of probation, with an underlying 15–month prison sentence.
Cooper moved and transferred the supervision of his probation order to Texas, where his mother resided. Cooper, however, stumbled: A Texas court convicted him on January 4, 2010, of possession of cocaine and convicted him 9 days later of possession of marijuana. Accordingly, Cooper was incarcerated for about 8 months in Texas and then extradited back to Kansas.
The district court revoked Cooper's probation because of his Texas convictions. Cooper asked the court to reinstate his probation because he needed drug treatment. The court rejected his request and ordered him to serve his underlying sentence. Cooper appeals.
Preliminarily, the State asserts that Cooper's appeal is moot. Specifically, the State contends that even if Cooper did not receive any credit for good behavior while in prison, he still would have been released before June 1, 2012.
Generally, appellate courts do not decide moot questions or render advisory opinions. Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996). The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal 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. 259 Kan. at 504. An appeal, however, will not be dismissed for mootness “unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.” State v. Johnson, 39 Kan.App.2d 438, Syl. ¶ 1, 180 P.3d 1084,rev. denied 286 Kan. 1183 (2008).
The State draws this court's attention to Johnson to support its claim that Cooper's appeal is moot. In Johnson, the district court revoked the appellant's probation and ordered him to serve his underlying sentence. By the time his appeal made its way to this court, we asked Johnson to show cause regarding whether his appeal should be dismissed as moot. Johnson confirmed he was no longer in prison, and we thus dismissed his appeal. 39 Kan.App.2d at 438–43.
But unlike the appellant in Johnson, Cooper has not been asked by this court to show cause regarding whether he has been released from prison. Moreover, after a criminal appeal is docketed, “the State is obligated to serve notice on the clerk of the appellate courts of any change in the defendant's custodial status while the appeal is pending.” Supreme Court Rule 2.042 (2012 Kan. Ct. R. Annot. ––––, effective July 1, 2012). Our record demonstrates that no such notice has been served and, therefore, because the State has failed to demonstrate clearly and convincingly that Johnson's appeal is moot, review of the merits is proper. See Johnson, 39 Kan.App.2d 438, Syl. ¶ 2.
Nonetheless, Cooper's appeal fails. Before the district court, he argued he needed to be placed in a drug treatment program rather than be incarcerated. Before this court, Cooper also argues that incarceration is more costly than probation and that it contributes to prison overcrowding.
As novel as these arguments may be, the district court did not abuse its discretion. Cooper's marijuana and cocaine convictions in Texas clearly demonstrate that he violated his probation here. See State v. Gary, 282 Kan. 232, 237–38, 144 P.3d 634 (2006). Based on our review of the record, the district court's decision to revoke Phillips' probation was not arbitrary, fanciful, or unreasonable. See State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). Therefore, the court did not abuse its discretion by revoking his probation and ordering him to serve his underlying sentence.
Affirmed.