MEMORANDUM OPINION
This case appears before this court for the second time. Almost four years ago, the district court sentenced John Paul Kent to 18 months probation with an underlying 30-month prison sentence. After Kent stipulated to multiple probation violations, the district court revoked his probation, and about two years later Kent untimely appealed that revocation. After docketing his appeal, a panel of this court ordered the case to be sent back to the district court for a hearing to determine whether a jurisdictional exception applied to allow Kents untimely appeal. However, without determining the jurisdiction issue, the district court instead dismissed the case as moot. This court retained the appeal and instructed the parties to brief the issues of mootness, jurisdiction, and the substantive arguments related to Kents probation revocation. But once again, this court is without jurisdiction to decide the substantive issue. The district courts decision is reversed and remanded with directions.
PROCEDURAL AND FACTUAL BACKGROUND
Kent entered a plea agreement with the State related to events that occurred on February 1, 2018, where the State agreed to dismiss several charges against Kent in exchange for Kents no-contest plea to felony distribution of methamphetamine. After a hearing, the district court accepted Kents no-contest plea and sentenced him to 18 months probation with an underlying 30-month prison sentence.
In May 2019, the State moved to revoke Kents probation, alleging he failed to:
• report to his intensive supervision officer (ISO);
• seek and maintain employment;
• submit to drug and alcohol testing;
• cooperate with his ISO to create a drug treatment or psychiatric treatment plan;
• successfully complete his drug court program;,
• pay his community corrections administrative fee; and
• pay his court-ordered obligations.
Kent waived his right to a hearing on the States motion to revoke and stipulated that he violated the terms and conditions of his probation. The district court accepted Kents waiver and stipulation and then stated that “[Kents] probation is revoked.”
The district court then asked the parties if there was an agreement on the disposition, and the State responded:
“Judge, were—hes—I think the agreement is hes—hes agreeing to go and serve his sentence. What hes asking for is to be granted a week to—be ordered to serve—to report at 11 a.m.—be let out today, be ordered to report at 11 a.m. on the 29th of July, which is a week from today.”
Kents counsel agreed—stating that Kent was requesting to delay reporting to serve his sentence by one week to allow him to wrap up personal affairs. The State did not oppose the requested week delay, in part because Kent had another outstanding felony case that it intended to pursue if he did not surrender himself in the present case. The district court agreed to allow Kent a week delay: “[T]he Court orders that [Kent] appear at the Allen County Sheriffs Office by or before 11 a.m. central standard time on July 29th, 2019.”
Notably, the district court did not provide any specific reasons for revoking Kents probation beyond accepting Kents stipulation to the violations alleged in the States motion. The court also did not advise Kent of his right to appeal the revocation at the hearing. Kent did not report to serve his sentence on July 29, 2019, but was later arrested on November 18, 2019, and taken into custody.
On February 18, 2020, Kent filed a “Motion to Withdraw Stipulation to Probation Revocation”—seeking to withdraw his stipulation because he “did not fully and completely understand the stipulation” and that the stipulation “was not freely and voluntarily entered.” Kent argued that he had not been told about the possibility of intermediate sanctions instead of probation revocation and that his counsel failed to provide him with legal information and resources about his case. Kent sought withdrawal of his stipulation and argued that intermediate sanctions were the appropriate remedy in his case.
In its response, the State argued that the district court did not have jurisdiction to hear Kents motion because it had already imposed his sentence. The district court held a hearing on Kents motion, where it found that it lacked jurisdiction to grant his motion to withdraw or to revisit the probation violation hearing. On July 8, 2020, Kent filed his first notice of appeal—challenging the district courts denial of his motion for lack of jurisdiction and his initial probation revocation.
This court docketed Kents appeal on April 8, 2021, and then ordered the parties to show cause why the case should not be dismissed for lack of jurisdiction given Kents late notice of appeal from his probation revocation. After receiving the parties show cause briefings, this court sent the case back to the district court for a hearing to determine “whether case law exceptions to the requirement of a timely filed notice of appeal apply.” See State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
The district court held a hearing on September 13, 2021, in response to this courts order, but Kent did not appear. Rather than conducting a jurisdiction hearing as directed, the district court found that Kent had served his entire sentence and thus his case was now moot. The district court stated, “I dont think we have to deal with an Ortiz exception,” because it found the appeal moot. The State agreed; Kents counsel objected, arguing:
“No, I would think that we got remanded here from the Court of Appeals relative to make a determination on the Ortiz exception, that that was what we were charged with doing; and so I would have to formally object to the Court finding that there is no Ortiz exception based upon mootness.”
The court responded, stating:
“Ive never dealt with this before, but I—hes already served his sentence, and so I think the issue is moot there.
“And, in addition, we cant locate him and he has a right to be here, and I dont know what else I can do. I think really even the remand from the Court of Appeals is now moot. I mean, their order is still in place, but theres nothing for the Court to take any action on; and, arguably, the Court doesnt even have jurisdiction.
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“But the bottom line is we probably need to submit an order saying that he—we tried to obtain service on him—we failed despite our best efforts—at the best address we had available for him; he has served his sentence; and the case is now moot.”
The district court ended the hearing without deciding the jurisdiction question pursuant to Ortiz. This court retained Kents appeal but ordered the parties to brief both the substantive arguments and the questions of appellate jurisdiction and mootness.
DISCUSSION
On appeal, Kent argues that the district court erred twice—first, by finding his appeal moot and second, when it initially revoked his probation without first imposing intermediate sanctions. However, before determining the substantive claim of erroneous probation revocation, this court must first address the district courts dismissal of Kents claim as moot and whether it has jurisdiction to address the substantive issue.
I. THE STATE FAILED TO SHOW THE CASE IS MOOT
The State argues that, regardless of any other arguments, this court should dismiss Kents appeal as moot. Kent argues that his appeal is not moot because he is on postrelease supervision and the controversy is still active, and that the State failed to provide any evidence of Kents sentence completion below or on appeal and thus has not carried its burden to prove mootness.
Kansas appellate courts do not generally decide moot questions or render advisory opinions. When determining questions of mootness, appellate courts exercise unlimited review. State v. Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020). As the party seeking dismissal based on mootness, the State “generally bears the initial burden of establishing that a case is moot in the first instance.” 311 Kan. at 593. The Kansas Supreme Court has rejected a “bright line” test for mootness. An appeal should be dismissed for mootness only 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. [Citation omitted.]” 311 Kan. at 592.
In an appeal solely challenging a sentence—like Kents—the party asserting mootness can establish a prima facie showing of mootness by demonstrating that the defendant has fully completed the terms and conditions of their sentence. If the State makes this showing, the burden shifts to the defendant to show that dismissal would impair a substantial interest or that an exception to the mootness doctrine applies. Roat, 311 Kan. 593.
The States brief claims that Kent has “served his underlying prison sentence” and that “neither party contests” this fact. For support of this assertion, the State cites to one page of Kents appellate brief that discusses Kents potential release date and potential postrelease timeline. However, Kents brief does not concede that he had completed his underlying sentence. Rather, the preceding page of Kents appellate brief notes that the State has the burden to make “a prima facie showing that a person has fully completed the terms and conditions of [their] sentence” and “[t]hat did not happen in this case.” Kents brief goes on to say:
“The State did not allege or prove the case was moot, or that Mr. Kent has even completed his sentence in this case, and there was no evidence of that fact. Mr. Kent asserts that the question of mootness fails in the first instance because there has been no proof that the case is moot.
“In the interest of complying with this Courts order to brief [the mootness issue], however, counsel for Mr. Kent will address the question in full. He maintains that he has not completed the terms and conditions of his sentence.”
Thus, contrary to the States contention, this court finds nothing in the record establishing Kent has admitted or agreed that he has served his underlying sentence.
At the status hearing on this courts order—where the district court found the case was moot—the State presented no evidence of Kents sentence completion. At the beginning of the hearing, Kents district court counsel informed the court—without any accompanying evidence—that he could not locate Kent and that Kent “ha[d] completely exhausted his sentence in this case.” The district court then found that Kent “ha[d] served his sentence” and the case was now moot.
On appeal, this court asked the parties to brief the mootness issue. But just as at the hearing below, the States brief provides no evidence of Kents sentence completion. The State cites only to Kents single appellate brief page to support its argument that Kent served his entire underlying sentence. Yet, the Kansas Supreme Court has held that a party must provide a reliable factual source showing the defendants custodial change for sufficient proof of sentence completion. See State v. Yazell, 311 Kan. 625, 631, 465 P.3d 1147 (2020). The State has cited to no factual support in the record and has provided no notice of change in custodial status filed pursuant to Supreme Court Rule 2.042 (2022 Kan. S. Ct. R. at 18) or any other documentation confirming Kents sentence completion.
As the State has the burden to show Kent fully completed the terms and conditions of his sentence—and it produced no reliable evidence that occurred—this court cannot find that Kents appeal is moot. See State v. Foster, No. 123,019, 2021 WL 6068998, at *5 (Kan. App. 2021) (unpublished opinion) (“Because the State produced no reliable evidence that Fosters claims are moot, our only remaining choice is to reach the merits of Fosters claims even if this requires us to issue an advisory opinion.”). The district court erred in finding Kents appeal was moot.
II. THIS COURT LACKS JURISDICTION TO ADDRESS KENTS SUBSTANTIVE CLAIMS
Before addressing Kents substantive claims, this court must first determine whether it has jurisdiction to hear Kents untimely appeal. As discussed above, a panel of this court sent Kents appeal back to the district court for an Ortiz hearing to determine whether an exception applied to Kents untimely revocation appeal. Rather than conduct an Ortiz analysis, the district court dismissed the case as moot.
Now, Kent asserts essentially that this court is in the same position as the previous panel and must remand the case for an evidentiary hearing on the jurisdiction question because the parties were unable to fully present their jurisdiction arguments to the district court. He argues in the alternative that if this court “desires to act in the interest of judicial economy,” it could assume an Ortiz exception applies and reach the merits of his argument on appeal. The State agrees with Kent in the first instance—asserting that this court has no jurisdiction to hear the merits and no Ortiz exception has been found to apply, so this court should remand with instructions to conduct an Ortiz analysis below.
Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. State v. Lundberg, 310 Kan. 165, 170, 445 P.3d 1113 (2019). This court has jurisdiction only when an appeal is timely filed or when one of the three Ortiz exceptions is found by the district court. See State v. Smith, 304 Kan. 916, 919-20, 377 P.3d 414 (2016). Neither has occurred in this case. And “[w]hen the record discloses a lack of jurisdiction, an appellate court must dismiss the appeal.” State v. Marinelli, 307 Kan. 768, 769, 415 P.3d 405 (2018). As Kents appeal was untimely filed and no Ortiz exception was found below, this court lacks jurisdiction to hear the merits of Kents appeal.
Even assuming one exists, this court declines to search for an avenue under which it could assume it has jurisdiction permitting it to reach Kents substantive claims.
CONCLUSION
Having found that the State has failed to provide sufficient evidence to support its claim that Kents appeal is moot, and that this court lacks jurisdiction to hear Kents substantive arguments on appeal, this court must reverse the district courts dismissal and remand this case to the district court. On remand, the district court must either conduct an Ortiz hearing as previously directed to determine whether a jurisdictional exception applies to excuse Kents untimely appeal or determine the issue is moot based on reliable evidence.
Reversed and remanded with directions consistent with this opinion.
PER CURIAM: