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Date: 09-02-2020
Case Style:
STATE OF KANSAS v. COREY LEROY YAZELL
Case Number: 116,761
Judge: Eric Rosen
Court: IN THE SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen A. Howe, district attorney, and Derek Schmidt, attorney general
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Kansas.
Description:
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On January 4, 2016, Yazell entered into a plea agreement, pleading guilty to one
count of possession of methamphetamine and one count of driving while suspended. On
March 4, 2016, the district court sentenced Yazell to 14 months of prison for the
methamphetamine charge and a concurrent 90 days for the driving charge. The court then
suspended the imposition of that sentence and placed Yazell on 12 months of probation.
On September 12, 2016, the State filed a motion to revoke Yazell's probation. The
motion alleged several violations of his probation conditions. It alleged he was arrested in
Missouri on July 7, 2016, on drug charges, he failed to report to his probation officer on
multiple occasions, he was associating with individuals with criminal histories, and he
failed to satisfy outstanding warrants in Missouri.
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On October 6, 2016, the district court conducted a hearing on the State's motion.
Over Yazell's hearsay objections, Yazell's compact officer, who was the Kansas officer
entrusted with managing his case while Yazell continued to live in Missouri, testified to
information she had received in interstate compact reports from Missouri. The court
elected to impose the original sentence of 14 months of prison for the methamphetamine
charge and a concurrent 90 days for the driving charge, with 12 months of postrelease
supervision. Yazell took a timely appeal to the Court of Appeals.
On May 2, 2017, Yazell filed a brief with the Court of Appeals. He raised one
argument: that the district court improperly relied on hearsay testimony to support
probation revocation, and the consequence was inconsistent with due process
requirements. On September 1, 2017, the State filed its responsive brief, in which it
argued that Yazell's due process rights had been satisfied.
On December 13, 2017, the Court of Appeals issued an order sua sponte directing
the parties to show cause why the appeal should not be dismissed as moot due to Yazell's
release from custody. Answering the order to show cause, the State relied on the website
maintained by the Kansas Department of Corrections—Kansas Adult Supervised
Population Electronic Repository (KASPER). The State averred: "The Kansas
Department of Corrections website shows that, on May 10, 2017, Yazell was released
from custody onto post-release; on November 10, 2017, Yazell's sentence expired. He is
no longer under supervision." The response continued: "The State confirmed as much
with a phone call to Cherryl Hensley—Senior Administrative Specialist with the Kansas
Department of Corrections Sentence Computation Unit—on December 19, 2017."
Yazell responded by asserting that the State had not proved he was no longer
affected by revocation. He pointed out that, by its own conditions, KASPER is not to be
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relied on for accuracy. He also questioned the legal reliability of Cherryl Hensley and
pointed out that it was an unsworn ex parte communication not subject to crossexamination. Yazell neither confirmed nor denied that he was still in custody. He,
instead, suggested that a remand for a hearing was the appropriate procedure.
The Court of Appeals noted the responses and dismissed the appeal without
revealing any analysis. It simply informed the parties: "Response to Show Cause
considered by the Court and case dismissed as moot." We granted Yazell's petition for
review.
ANALYSIS
Yazell argues that the Court of Appeals erred when it relied on a printout from
KASPER and the State's factual assertion about a phone call with Hensley to find that
Yazell had completed his sentence. Yazell also argues that, even if this was not an error
and he has completed his sentence, his case is not moot because a finding that he violated
probation could be used as evidence that he is not amenable to probation in future cases.
We turn to his first allegation of error. This issue contemplates the legal effect of
an evidentiary submission to the appellate courts. The standard of review is de novo
because there is no district court factual finding. See In re Burnette, 73 Kan. 609,
Syl. ¶ 5, 85 P. 575 (1906).
Generally, Kansas appellate courts do not make factual findings. This task is
reserved for district courts, where evidence is offered and tested. See State v. Thomas,
288 Kan. 157, 161, 199 P.3d 1265 (2009) ("Appellate courts do not make factual findings
but review those made by district courts."). If an appellate court reviews the district
5
court's factual findings, it generally does so only to ensure that substantial competent
evidence supported those findings; it does not reweigh or reassess the evidence. State v.
Jenkins, 311 Kan. 39, 45, 455 P.3d 779 (2020) (This court reviews the factual
underpinnings of a district judge's legal ruling for substantial competent evidence.");
State v. Galloway, 311 Kan. __, 459 P.3d 195, 202 (2020) (court does not reweigh
evidence or assess witness credibility when reviewing for substantial competent
evidence).
But there are times when an appellate court is called upon to make a finding of its
own. One of those times occurs in this appeal—where a party alleges that a change in
circumstance since the district court proceedings has rendered an action moot. Before the
appellate court may consider mootness, it must confirm the change in circumstance.
Appellate fact-finding is simple when both parties agree that a change has taken
place, or the change is so ubiquitous the court may take judicial notice of its happening.
K.S.A. 60-409(a) (allowing courts to take judicial notice of facts of "generalized
knowledge"). When the parties do not agree that a change has occurred, appellate factfinding becomes more difficult. The appellate forum is not conducive to the taking or
testing of evidence. For this reason, appellate courts must carefully scrutinize the
reliability of evidence before making the rare finding of fact.
The Court of Appeals order dismissing Yazell's appeal was brief and vague. For
this reason, we do not know on what the panel relied on to conclude that Yazell's case
was moot. Yazell insists the panel looked to the KASPER printout and the State's
description of its alleged phone call confirming the KASPER information to find that he
had been released from custody. To the extent this is what occurred, it was an error.
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Kansas appellate courts have taken inconsistent positions on the reliability of
KASPER and similar sources from off the record.
Without explaining why KASPER is reliable, several Court of Appeals decisions
have cited to it as a proper source of information about inmates, including such details as
time of incarceration and disciplinary issues.
In State v. Upham, No. 97,961, 2008 WL 1847703 (Kan. App. 2008) (unpublished
opinion), the Court of Appeals confronted a question essentially the same as in the
present appeal. The State presented printouts from KASPER as well as a form from the
Department of Corrections showing the defendant was on supervised parole. The
defendant neither confirmed nor denied his noncustodial status. Without analyzing the
reliability of KASPER as a source, the Court of Appeals dismissed the appeal as moot.
2008 WL 1847703, at *2.
In State v. Flores, No. 100,496, 2009 WL 1766258 (Kan. App. 2009) (unpublished
opinion), the Court of Appeals reached factual conclusions about the defendant's jail time
credit based on KASPER documents furnished by defense counsel. The court did not
question or analyze the reliability of KASPER records. 2009 WL 1766258, at *1.
In State v. Harbacek, No. 111,687, 2015 WL 3632321 (Kan. App. 2015)
(unpublished opinion), the Court of Appeals relied heavily on a KASPER printout in
examining whether the defendant was entitled to jail time credit. The appellate court
eventually found the evidence insufficient to answer the question before it and remanded
to the district court for a factual hearing. 2015 WL 3632321, at *6.
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Again, in State v. Hastings, No. 112,222, 2016 WL 852857 (Kan. App. 2016)
(unpublished opinion), rev. denied 306 Kan. 1324 (2017), the State submitted a KASPER
printout purporting to show that the defendant was no longer under sentence as the appeal
proceeded. The Court of Appeals considered it "important" that the defendant made no
effort to rebut the State's assertion of noncustodial status and dismissed the sentencing
portion of the appeal as moot. 2016 WL 852857, at *6.
But both the Court of Appeals and this court have also rejected turning to sources
outside official records and the evidence introduced at trial.
In In re K.B.J., No. 102,922, 2010 WL 348294, at *2 (Kan. App.) (unpublished
opinion), rev. denied 290 Kan. 1094 (2010), the Court of Appeals held, in a parental
rights proceeding, that the district court erred in taking judicial notice of information the
court services officer obtained from KASPER. The court wrote:
"Any user of KASPER must first confirm the DOC's explicit disclaimer that it assumes
no legal liability or responsibility for the accuracy, completeness, or usefulness of any
information, product, or process disclosed, nor represents that its use would not infringe
on privately owned rights. See http://www.dc.state.ks.us/kasper. In this disclaimer, the
DOC explicitly does not guarantee the accuracy of the information contained therein.
Obviously, given the DOC's disclaimers, information found therein could reasonably be
the subject of dispute, so it is not subject to judicial notice." 2010 WL 348294, at *2.
Again, in State v. Ellis, No. 110,904, 2015 WL 1402820 (Kan. App. 2015)
(unpublished opinion), the Court of Appeals rejected information that the State provided
from the KASPER website with the intent of demonstrating mootness. The court wrote:
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"But given the disclaimer set forth by the KDOC on the KASPER website, however, we
are precluded from taking judicial notice of the fact that Ellis was placed on postrelease
supervision on June 3, 2014. Before using the KASPER website, all users are required to
first confirm the KDOC's explicit disclaimer . . . . In this disclaimer, the KDOC explicitly
does not guarantee the accuracy of the information contained on the KASPER website.
Given the KDOC's disclaimers, information found on the KASPER website could
reasonably be the subject of dispute; thus, that information is not subject to judicial
notice." 2015 WL 1402820, at *2.
In State v. Heil, No. 106,578, 2012 WL 5392115 (Kan. App. 2012) (unpublished
opinion), the court declined to rely on KASPER as dispositive for establishing amounts
of jail time credit. The court accordingly remanded to the district court for a hearing.
2012 WL 5392115, at *4.
Without specifically addressing the competence and admissibility of KASPER
documents, this court has weighed in on the admissibility of similar documents as
evidence tending to demonstrate an appellant's custodial status.
In State v. Raiburn, 289 Kan. 319, 212 P.3d 1029 (2009), in analyzing the fugitive
disentitlement doctrine, this court held that mere allegations by the State that a defendant
was not in custody were insufficient to justify a judicial finding that the defendant was a
fugitive. The court, instead, required a remand to the district court where a factual
hearing could be held and where the State might prove, by a preponderance of the
evidence, that the defendant was no longer in custody. 289 Kan. at 332-33.
In State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015), this court considered a
speedy trial issue. The State sought to augment the appellate record using an arrest
warrant and accompanying report that were not introduced at trial. This court refused to
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consider or take judicial notice of the documents because they were not among the
original papers filed in district court and because they were not capable of immediate and
accurate determination by resort to easily accessible sources of indisputable accuracy.
302 Kan. at 506. The decision cited State v. Taylor, 198 Kan. 290, 299, 424 P.2d 612
(1967), which held that uncertified machine copies of Federal Bureau of Investigation
and KBI rap sheets were hearsay and not governed by Kansas statutes on judicial notice.
302 Kan. at 506. It also cited favorably In re K.B.J., 2010 WL 348294, rejecting
recognition of KASPER printouts as discussed above. 302 Kan. at 504-06.
The reasoned approach by appellate courts to date has been to reject basing
appellate decisions on KASPER and similar documentation. This makes sense. Before
accessing the KASPER database, users are required to agree with a disclaimer, which
includes this language:
"The information contained on this website is subject to disclosure pursuant to the Kansas
Open Records Act (K.S.A. 45-221). While the information is believed to be accurate, the
State of Kansas, the Kansas Department of Corrections, their employees or officers, make
no warranties, express or implied, including warranties of merchantability and fitness for
a particular purpose. Further the Kansas Department of Corrections assumes no legal
liability or responsibility for the accuracy, completeness, or usefulness of any
information, product, or process disclosed, nor represents that its use would not infringe
on privately owned rights." https://kdocrepository.doc.ks.gov/kasper/search/disclaimer
The website, therefore, makes no claim to authenticity or reliability. Furthermore,
the documentation is not certified, and the individuals who generate the site are not
available for cross-examination at the appellate level. It is the kind of information on
which judicial decisions should not be based, which is what this court held in Taylor,
Raiburn, and Brownlee.
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In line with these reasoned cases, we conclude that the Court of Appeals erred to
the extent that it relied on KASPER and the State's hearsay assertions about a Corrections
employee confirming the accuracy of the report. Because the panel's order does not reveal
its factual source, we must reverse its decision and remand the case to the Court of
Appeals. We acknowledge the possibility that the panel turned to a reliable source but
failed to describe that source in its ruling. If this is the case, the panel should describe this
source and its reliability upon remand.
We must also address the panel's conclusion that Yazell's case was moot. The
panel's order is silent on what led it to this conclusion. Assuming the panel based its
decision on a finding that Yazell completed his sentence, this was also an error.
In State v. Roat, 311 Kan.__, __P.3d__ (No. 113,531, this day decided), we
explained that a case does not become moot simply because a defendant completed his or
her sentence. It is moot only "when a court determines that '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.'" Roat,
No. 113,531, slip op. at 6 (quoting State v. Montgomery, 295 Kan. 837, 840-41, 286 P.3d
866 [2012]). Before dismissing a case as moot, a court must exercise caution and give
"due consideration" to any assertion of affected rights. Roat, No. 113,531, slip. op at 14.
Upon remand, should the panel again find that Yazell has completed his sentence,
Outcome: Reversed and remanded to the Court of Appeals with directions.
Plaintiff's Experts:
Defendant's Experts:
Comments: