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Date: 06-21-2020

Case Style:


Case Number: 113,763



Plaintiff's Attorney: Lance J. Gillett, assistant district attorney, argued the cause, and Matt J. Maloney, assistant
district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general

Defendant's Attorney:

Need help finding a lawyer for representation for challenging the district court's decision to classify a 1974 Colorado conviction for second-degree burglary as a person felony when determining a criminal history score prior to sentencing for a later drug offense in Kansas.

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Tracy pled guilty in 2013 to one count of methamphetamine possession, a severity
level 5 drug felony. For sentencing purposes, the district court found he had a criminal
history score of B. This was based in part on both a 1974 Colorado burglary conviction
and a 1982 Kansas burglary conviction being classified as person offenses. Tracy did not
object to either classification at the time. The court imposed an underlying sentence of 36
months' imprisonment but granted a downward dispositional departure to 12 months'
probation. The district court extended, and then eventually revoked, Tracy's probation
and ordered him to serve the underlying sentence.
At the hearing at which revocation occurred, the district court noted Tracy had
filed a motion to correct an illegal sentence, challenging the earlier classifications of his
prior Colorado and Kansas burglary convictions. We know very little about that written
motion because it is not included in the appellate record. But in denying the motion, the
court determined State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014) (holding outof-state convictions for crimes predating the Kansas Sentencing Guidelines Act must be
classified as nonperson offenses), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015), did not apply retroactively. Presumably, Tracy advanced that argument in the
motion. The court also held Tracy waived any challenge to those classifications because
he did not object at the original sentencing hearing. It revoked the probation and ordered
him to serve the underlying sentence. He appealed.
Tracy's argument appears to have changed in the Court of Appeals. He contended
the district court's classification of both convictions necessarily required unconstitutional
judicial fact-finding prohibited by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. 254, 133 S. Ct.
2276, 186 L. Ed. 2d 438 (2013). The panel agreed with him in part.
The panel held Tracy's 1982 Kansas burglary conviction should have been
classified as a nonperson felony under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015) (Dickey I). State v. Tracy, No. 113,763, 2016 WL 3960185, at *8 (Kan. App.
2016) (unpublished opinion) (noting under Dickey I, classifying Tracy's Kansas
conviction as a person felony required judicial fact-finding barred by Apprendi and
Descamps). But it held his Colorado conviction was properly classified. It noted Tracy's
claim focused on the Colorado statute's intent element, which he argued was broader than
the Kansas statute's similar element. The panel reasoned that Dickey I did not apply to
how intent was defined when comparing statutes. Tracy, 2016 WL 3960185, at *11
("Because Tracy does not challenge whether his 1974 Colorado burglary involved a
dwelling, we conclude the Colorado burglary was correctly classified as a person
offense."). In doing so, it adopted the reasoning of two other Court of Appeals decisions:
State v. Moore, 52 Kan. App. 2d 799, 377 P.3d 1162 (2016), rev'd 307 Kan. 599, 412
P.3d 965 (2018), and State v. Buell, 52 Kan. App. 2d 818, 377 P.3d 1174 (2016), rev'd
307 Kan. 604, 412 P.3d 1004 (2018). Tracy, 2016 WL 3960185, at *11.
Both the State and Tracy sought review from this court. We denied review of the
State's challenge about the Kansas conviction. But we kept Tracy's request for review in
abeyance pending resolution of other appeals with related issues. In the interim, the
parties agree Tracy fully served his prison sentence and the applicable period of
postrelease supervision. The State argues this renders Tracy's appeal moot.
Tracy objects to the mootness suggestion, arguing: (1) if this court does not
correct and vacate the panel's decision, any future sentencing court might feel obligated
to follow the panel's decision and again classify the 1974 Colorado burglary conviction as
a person felony; (2) without a favorable outcome from this court, under Garcia v. Ball,
303 Kan. 560, 573, 363 P.3d 399 (2015), Tracy could not pursue a legal malpractice
claim against his original sentencing attorney for not challenging the allegedly improper
classification; and (3) the issue relating to classification is capable of repetition and raises
concerns of public importance.
As a practical matter, Tracy argues for the impractical—that we should remand his
case back to the district court for resentencing, even though he has entirely served his
original sentence. We reject this and dismiss his appeal as moot.
Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). But an
appeal will not be dismissed as moot unless 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. 295 Kan. at
840-41; McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); State ex
rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007).
Speculated reliance by a future sentencing court on the panel's decision
Tracy claims if we do not correct the Court of Appeals decision, a future district
court will feel obligated to follow the panel's ruling and again classify his 1974 Colorado
conviction as a person felony—if he is ever convicted again for another crime. This
assertion lacks merit.
To begin with, and even assuming Tracy's premise that he has a predilection for
recidivism, dismissing this appeal can have no legal effect on how a future sentencing
court would classify his prior crimes in a new sentencing proceeding. State law grants a
defendant the right to challenge a criminal history worksheet before sentencing. And
when that happens, the burden shifts to the State to prove its accuracy by a preponderance
of the evidence. K.S.A. 2019 Supp. 21-6814(c); State v. Schow, 287 Kan. 529, 539-40,
197 P.3d 825 (2008). Despite Tracy's suggestion that he would be precluded from
relitigating this issue in a future prosecution, our sentencing guidelines contemplate a
new presentence investigation for each new sentence. K.S.A. 2019 Supp. 21-6813; State
v. Collier, 263 Kan. 629, 634, 952 P.2d 1326 (1998) (explaining collateral estoppel).
Adding to this, a future sentencing court will no doubt be guided by our decisions
in Moore and Buell, both of which direct how that hypothetical court's classifying of prior
crimes, such as Tracy's Colorado conviction, should be resolved. See Moore, 307 Kan.
599, Syl. ¶ 3 (for an out-of-state conviction to be comparable to an offense under the
Kansas criminal code, the elements of the out-of-state crime must be identical to, or
narrower than, the elements of the Kansas crime to which it is being referenced); Buell,
307 Kan. 604, Syl. ¶ 3 (same); State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 562, 412 P.3d
984 (2018) (same). Tracy's arguments focus on his prior crime's person/nonperson
classification, which is typically a question of law. See State v. Obregon, 309 Kan. 1267,
1275, 444 P.3d 331 (2019). And in a future prosecution, the crimes' classification will be
determined according to the then-governing law. See 309 Kan. at 1271 (noting party
challenging classification may seek benefit of change in law while direct appeal
Tracy fails to explain how a future sentencing court would have authority to
ignore the statutory requirements for preparing and considering a presentence
investigation in a manner that would deny him his legal right to challenge "any error in
the proposed criminal history worksheet." K.S.A. 2019 Supp. 21-6814(c). Similarly, to
accept his argument we would have to assume that a future sentencing court would ignore
controlling caselaw. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017)
(Kansas courts are "duty bound to follow Kansas Supreme Court precedent absent
indication Supreme Court is departing from previous position"). Tracy's speculative claim
simply fails to demonstrate a way in which a judgment on this appeal would impact his
rights as he asserts.
Tracy's legal malpractice contention
Tracy argues he needs postsentencing relief now for his allegedly unlawful
sentence because he would otherwise be barred "if [he] wants to" pursue a legal
malpractice claim against his original sentencing attorney for not objecting to that
sentence. See Garcia, 303 Kan. at 573 (criminal defendant required to obtain
postsentencing relief from an unlawful sentence before legal malpractice claim accrued).
But Tracy provides no detail about what he might assert as a basis for this alleged legal
malpractice he might want to file. See Mashaney v. Board of Indigents' Defense Services,
302 Kan. 625, 639, 355 P.3d 667 (2015) (setting out elements of a legal malpractice
He simply states,
"In Mr. Tracy's case, because of the prolonged appeals process, although he was
entitled to relief on his sentence due to the improper classification of his criminal history,
he did not benefit from that relief. If Mr. Tracy wants to pursue a malpractice claim
against his original trial counsel for not raising that issue at his original sentencing, at this
point, he would be prevented from doing so unless and until this Court officially grants
him relief on the classification of his Colorado second-degree burglary conviction. For
this reason, this issue is not actually moot." (Emphasis added.)
Given the superficial nature of his entirely hypothetical contention, we hold Tracy
fails to adequately support his claim. State v. Gonzalez, 307 Kan. 575, 592, 412 P.3d 968
(2018) ("Simply pressing a point without pertinent authority, or without showing why it
is sound despite a lack of supporting authority or in the face of contrary authority, is akin
to failing to brief an issue. When a party fails to brief an issue, that issue is deemed
waived or abandoned."). This omission is particularly glaring given the flux in our
sentencing laws over the relevant timeframe.
We are uncertain, for example, whether Tracy asserts his original sentencing
attorney should have argued Murdock retroactivity, which was the claim presumably
advanced in the motion to correct an illegal sentence; the comparability argument
rejected by the panel; or something else. Tracy provides no explanation about how his
attorney would allegedly have failed in a duty to "exercise ordinary skill and knowledge"
under the circumstances in this case. Mashaney, 302 Kan. at 639. He does not advance
any concrete issue in this regard, and we should not have to speculate whether he is
simply advancing a spurious argument to avoid dismissal.
Even so, we note the Murdock retroactivity argument could not have been made at
the time of Tracy's original 2013 sentencing because Murdock was not decided until
2014. And even that raises additional complications because Murdock was overruled by
Keel in 2015. Similarly, Tracy's argument to the Court of Appeals based on Dickey I was
not available at the time of his 2013 sentencing because Dickey I was not decided until
2015, and even that is hard to square because the comparability analysis was modified
again by Wetrich in 2018. Without more, we hold Tracy waived this argument.
Issue capable of repetition
Finally, Tracy suggests the panel's decision could have an impact on other
defendants in other cases, i.e., the result is capable of repetition and raises concerns of
public importance. But Tracy again offers no detail as how this is possible given the
current state of our caselaw. We fail to see any merit to this claim because our decisions
in Wetrich, Moore, and Buell are binding precedent and deal with the same question.

Outcome: We hold the issue raised before this court is moot.
Appeal dismissed.

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