1 NOT DESIGNATED FOR PUBLICATION

No . 1 2 2, 206

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appel l ee ,

v.

J ERRY L EE C OSSMAN , Appell ant

.

MEMORANDUM OPINION

Appeal from Barton District Court; C AREY L. H IPP , judge. Opinion filed November 13

, 20 20

. Appeal dismissed

.

Submitted by the parties for summary disposition pursuant to K.S.A. 201 9 Supp. 21

- 6820(g) and
(h).

B efore A RNOLD

- B URGER , C.J., B USER and W ARNER , J J

.

P ER C URIAM : Jerry Lee Cossman appeals his sentence contending the district
court abused its discretion by denying his motion for a dispositional departure to
probation and by scoring his prior California convictions as person crimes for criminal
history purposes. We granted Cossman ' s motion for su mmary disposition of his appeal
under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47). We now dismiss his appeal
for lack of jurisdiction and mootness

.2 F ACTUAL AND P ROCEDURAL H ISTORY

Cossman pled guilty to criminal threat, a severity level 9 person felony. He

committed this crime in March 2018. At sentencing, Cossman challenged the
classification of his prior California convictions from 1996 and 1998 as person felonies
for criminal history purposes. The parties agreed that Cossman was convicted of vi olating
California Penal Code § 273.5 (1996) which provided:

" (a) Any person who willfully inflicts upon his or her spouse, or any person who willfully
inflicts upon any person with whom he or she is cohabiting, or any person who willfully
inflicts upon a ny person who is the mother or father of his or her child, corporal injury
resulting in a traumatic condition, is guilty of a felony

. . . .

. . . .

" (c) As used in this section, ' traumatic condition ' means a condition of the body, such as a

wound or ex ternal or internal injury, whether of a minor or serious nature, caused by a
physical force. "

Cossman argued the " traumatic condition " element of the California offense made it
broader than any Kansas offense.

The district court found the California stat ute comparable to the offenses of battery
and aggravated battery in Kansas. The court thus found Cossman ' s criminal history score
was B, scoring the two California convictions as person felonies.

The court denied Cossman ' s motion for a downward dispositional departure to
probation. The court found no substantial and compelling reasons to depart, noting that
Cossman had four prior convictions for person crimes and that he had to be extradited
when he did not show for a previous hearing after being released on bond. In November3

2019, the court sentenced him to 14 months in prison with 12 months ' postrelease
supervision.

Cossman timely appeals.

A NALYSIS

We do not have jurisdiction to review the denial of Cossman ' s departure motion

.

We lack jurisdiction over Cossman ' s appeal of the denial of his departure motion

because Cossman was given a presumptive sentence. Under K.S.A. 2019 Supp. 21

- 6820(c)(1)

, an appellate court shall not review on appeal a sentence for a felony

conviction that is withi n the presumptive Kansas Sentencing Guidelines Act sentence for

the crime. See State v. Sprung , 294 Kan. 300, 317, 277 P.3d 1100 (2012) (no jurisdiction
to review presumptive sentences) ; s ee also State v. Looney

, 299 Kan. 903, 908

- 10 , 327

P.3d 425 (2014) (holding that " all departure sentences are subject to appeal under K.S.A.

21

– 4721(a) unless appellate jurisdiction is divested by a more specific provision " and
further noting that K.S.A. 21

- 4721(c)(1) [now K.S.A. 2019 Supp. 21

- 6820(c)(1)] is a
more specific provisi on prohibiting appeals from presumptive sentences)

.

Cossman ' s criminal history score challenge is moot

.

In the State ' s response to Cossman ' s motion for summary disposition of this
appeal, the State argues this appeal is moot because Cossman ' s imprisonmen t has ended
and a judgment would not have an impact on any of the parties ' rights. Cossman has
completed his prison sentence but has not been released from postrelease supervision.
The State filed a notice of change of confinement status stating that Cossm an was released from prison to postrelease status on March 13, 2020. The State filed another
notice stating that Cossman had relocated to Missouri and began supervision through the4

State of Missouri as of May 1, 2020. Cossman did not respond to the State ' s claim of

mootness.

A case is moot when it is clearly and convincingly shown that the actual

controversy has ended, the only judgment that could be entered would be ineffectual for

any purpose, and it would not have an impact on any of the parties ' rights. State v. Roat

, 311 Kan. 581

, 584, 466 P.3d 439 (2020)

. The party asserting mootness generally bears

the initial burden of establishing that a case is moot. In a sentencing appeal

, the party asserting mootness may establish a prima facie showing of mootness by demonstrating

that the defendant has fully completed his or her sentence. Upon a prima facie showing of

mootness, the burden shifts to the party opposing the mootness challenge to show the

existence of a substantial interest that would be impa ired by dismissal or that an exception to the mootness doctrine applies. 311 Kan. at 593

.

Our Supreme Court has cautioned our court not to employ a " bright line " test that
renders a sentencing appeal necessarily moot when the offender has served his or her

sentence. 311 Kan. at 592 . However, when the offender fails to challenge the State ' s showing of mootness, we can dismiss the appeal as moot. State v. Sykes

, 311 Kan. 612

, 613

- 14, 465 P.3d 1152 (2020)

.

Here, the State showed that Cossman completed the prison portion of his sentence
but he is still on postrelease supervision. Numerous panels of this court have found
challenges to an offender ' s criminal history sco re moot when the offender is still on
postrelease supervision because the term of postrelease supervision is a function of the
severity level of the crime, not the criminal history score. See

, e.g. , State v. Barnes , No.
117,783, 2018 WL 6005417, at *2

- 3 (K an. App. 2018) (unpublished opinion), rev. denied

310 Kan. 1063 (2019). Offenders sentenced for a nondrug severity level 9 crime " must serve 12 months on postrelease supervision. " K.S.A. 201 9 Supp. 22

- 3717(d)(1)(C) . Even
assuming the district court miscalc ulated Cossman ' s criminal history score, the5

miscalculation would not affect his term of postrelease supervision. The controversy
surrounding the length of Cossman ' s sentence has ended. A judgment in his favor would
be ineffectual for any purpose. And Coss man has identified no rights that he loses by
dismissal of this appeal as moot.

Appeal d ismissed.