Opinion
No. 105,765.
2012-05-18
STATE of Kansas, Appellee, v. Sean R. McCAMMON, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Sean McCammon appeals from his sentence of 1 year in the county jail. After sentencing, McCammon was ordered to serve a minimum of 90 days in jail, which, under the statute, he could serve in a work release program. However, the Sedgwick County work release program refused to accept McCammon because of his mental retardation. McCammon contends on appeal that his rights under the Americans with Disabilities Act were violated, his sentence should be vacated, and his case should be remanded with orders permitting him to serve his sentence in a work release program. We dismiss.
Facts
In May 2010, Sean McCammon was charged in Sedgwick County District Court with one count of domestic battery after having been convicted or diverted from charges of domestic battery two or more times within the preceding 5 years. Several months later, McCammon agreed to plead guilty as charged in exchange for certain sentencing recommendations.
A presentence investigation report (PSI) showed that McCammon had a juvenile adjudication for assault on a law enforcement officer, three adjudications for misdemeanor battery, one adjudication for assault, and two adjudications for disorderly conduct. McCammon also had two adult convictions of misdemeanor domestic battery and a conviction for misdemeanor sexual battery.
At McCammon's January 2011 sentencing hearing, defense counsel requested that McCammon be ordered to serve 48 hours in jail, after which he would be released to a program called People First Employment Residential Services (People First). Counsel noted that McCammon had some “physical and mental health issues” that prevented him from working. Counsel also admitted she had been advised that McCammon would not meet the eligibility requirements for the work release facility. A representative of People First stated that McCammon suffered from mental retardation, post-traumatic stress disorder, depression, and bipolar disorder. People First has both a residential and work program where persons with developmental disabilities are taken to a worksite daily and are provided supervision.
The State did not oppose the defense counsel's request that McCammon be assigned to People First rather than the county's work release center. The court expressed concern that the sentence recommended by both parties would be illegal. Prior to the hearing, defense counsel contacted the county's work release program and was told that McCammon would not qualify for the program because he was not employable. The district court continued the sentencing hearing to allow the attorneys to contact the work release program again to determine if a solution could be reached.
At the reconvened sentencing hearing in February 2011, defense counsel reported that she had contacted the work release program and they had determined they could not take McCammon in their program. At this point, counsel cited the Americans with Disabilities Act (ADA) and its requirement that state and local governments provide services. She asserted that being able to participate in work release was a benefit provided by state law and that McCammon was not being afforded reasonable accommodation for his disabilities; however, defense counsel did not provide the court with any caselaw supporting her argument. Counsel discussed federal regulations regarding services, programs, and activities of a public entity. The court rejected McCammon's arguments that the ADA applied to his case, finding there were legitimate reasons to require work release participants to be able to perform a job, that it would require supervision of someone with McCammon's history of batteries, and that judges do not have flexibility under the sentencing guidelines. Accordingly, the court ordered McCammon to serve the minimum 90–day sentence with probation for one year thereafter. McCammon timely appealed his sentence and “all adverse rulings.”
On appeal, McCammon contends that his rights under the ADA were violated when the district court denied him participation in the work release program during his 90–day jail sentence. He asserts the district court “should have required the work release facility” to allow him to complete his work release time in the People First program. McCammon asks this Court to remand the case and order that he be allowed to participate in work release.
Sentence
McCammon is appealing his sentence, which requires interpretation of the applicable statutes. On appeal, this court has unlimited review of statutory interpretation. State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011).
K.S.A.2009 Supp. 21–3412a(b)(3) states, in relevant part:
“If, within five years immediately preceding commission of the crime, a person is convicted of a violation of domestic battery a third or subsequent time, such person shall be guilty of a person felony and sentenced to not less than 90 days nor more than one year's imprisonment.... The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment.... The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.” (Emphasis added.)
McCammon contends that under Title II of the ADA, 42 U.S.C. § 12131 et seq., he was unlawfully denied participation in the work release program because of his disabilities. Specifically, the ADA states “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. McCammon's brief cites Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), for support. In Yeskey, the United States Supreme Court held that Title II of the ADA, prohibiting a “ ‘public entity’ “ from discriminating against a “ ‘qualified individual’ “ on account of that individual's disability, applied to inmates in state prisons. 524 U.S. at 209 (quoting 42 U.S.C. § 12132). Moot Issues
In its brief, the State does not dispute the applicability of the ADA to jail programs. However, the State asserts that McCammon's issue is moot because the 90–day period in which he would have served in a work release program has expired. McCammon, in his reply brief, does not dispute that his 90–day jail term has expired, but he asserts the issue is one of great public importance and is capable of repetition.
As a general principle, an appellate court does not decide moot questions or render advisory opinions. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012). However, an appellate court may elect to entertain issues that, although moot, are issues of statewide importance and are capable of repetition. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011).
In this case, while McCammon's sentencing issue is moot, that does not prevent him from seeking administrative and judicial relief, including declaratory and injunctive relief, in a civil proceeding under the ADA and/or 42 U.S.C. § 1983. See, e.g., Yeskey, 524 U.S. at 208 (inmate brought civil action challenging denial of admission to boot camp program—instead of prison—because of disabilities). Pursuit of a civil action in this context may be appropriate. Criminal Appeal
In addition, the State contends that a direct criminal appeal is not the proper vehicle to assert a claim under the ADA. The State emphasizes that Yeskey was a civil action brought against the State by an inmate after he was denied admission to a boot camp program because of hypertension; the case was not brought as part of his direct criminal appeal. Yeskey, 524 U.S. at 208. McCammon does not respond to this argument in his reply brief.
Neither party cites to 42 U.S.C. § 12133, which clearly states: “The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.” (Emphasis added.) That statute is part of the Rehabilitation Act of 1973. Section 794a, in turn, incorporates by reference the remedies, procedures, and rights set forth in Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–16 (pertaining to federal government employees claiming discrimination), and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d (discrimination by programs receiving federal financial assistance). See 29 U.S.C. § 794a.
Title VII requires employees to file administrative complaints before filing civil actions with claims of employment discrimination; both Title VI and VII permit government agencies to refer to civil actions filed against violators by federal agencies to enforce anti-discrimination laws. See 42 U.S.C. § 2000e–16; 42 U .S.C. § 2000d–1. The statutes do not provide for enforcement of anti-discrimination procedures as part of a criminal case.
The only published cases found, where courts directly address the ability to pursue ADA claims with respect to sentencing, rejected the use of a criminal case to litigate a disability discrimination claim. In Wilson v. Commonwealth, 31 Va.App. 200, 522 S.E.2d 385 (1999), the Virginia Court of Appeals rejected a criminal defendant's attempt to challenge a trial court's decision to sentence her to prison rather than to a community-based boot camp under the ADA; the decision was based on the defendant's diagnosed schizophrenia. Wilson, 31 Va.App. at 202. The Virginia Court's reasoning is similar to that set forth above.
A California appellate court reached a similar conclusion in a juvenile delinquency proceeding in In re M.S., 174 Cal.App. 4th 1241, 95 Cal.Rptr.3d 273 (2009). There, the appellate court rejected the juvenile's argument that his placement with the juvenile justice authority was based solely upon his diabetes and, therefore, violated the ADA. In re M.S., 174 Cal.App. 4th at 1251–52. The court's reasoning was two-fold: (1) the ADA argument was not raised in the trial court, and (2) there was no authority to permit an ADA claim to be raised in a juvenile disposition hearing. In re M.S., 174 Cal.App. 4th at 1252.
The ADA clearly only provides relief in civil proceedings, and McCammon fails to cite any authority to the contrary. McCammon has available to him a procedure to challenge the rejection of his request for participation in a work release program, but that procedure does not exist in a criminal appeal. McCammon failed to establish that this court has jurisdiction to consider an ADA claim in a criminal appeal.
Dismissed.