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NOT DESIGNATED FOR PUBLICATION

No. 123,459

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

PAUL LEE STOTTS,

Appellant.

MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed February 25, 2022. 

Affirmed.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek 

Schmidt, attorney general, for appellee.

Before POWELL, P.J., SCHROEDER, J., and JAMES L. BURGESS, S.J.

POWELL, J.: After finding Paul Lee Stotts violated the terms and conditions of his 

probation, the district court imposed a 180-day intermediate prison sanction. Stotts now 

appeals, claiming the district court abused its discretion by imposing the sanction. We 

affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

For crimes he committed on May 7, 2015, and as part of a plea agreement with the 

State, Stotts pled no contest to attempted robbery and battery. At the sentencing hearing 

conducted on September 10, 2019, the district court imposed a 29-month prison sentence 

but granted Stotts a dispositional departure to probation for a period of 24 months.

On June 10, 2020, the State moved to revoke Stotts' probation, alleging he violated

his probation conditions by failing to refrain from violating the law; for testing positive 

for marijuana, methamphetamine, cocaine, and alcohol; and for failing to obtain a 

substance abuse evaluation. Stotts stipulated to the violations, and the district court 

imposed a 30-day jail sanction, ordered a mental health evaluation, and extended his 

probation 24 months. The district court also warned Stotts this was his last chance.

On August 27, 2020, the State again sought to revoke Stotts' probation, this time 

alleging he had violated the sanctions imposed and tested positive for illegal drugs. At the 

November 3, 2020 evidentiary hearing, Stotts' probation officer testified Stotts was 

unsuccessfully discharged from Serenity House and had submitted a positive urine 

analysis (UA) test for marijuana, amphetamine, methamphetamine, and MDMA. Stotts 

testified he left Serenity House because he was having an issue with bed bugs. Stotts 

admitted to using the drugs but claimed he got them from another person when they were 

both quarantined in a hotel after his roommate from the Oxford House—another cleanliving environment Stotts entered after Serenity House—contracted Covid-19.

The district court found Stotts in violation of the terms and conditions of his 

probation. The State recommended the district court impose a 180-day intermediate 

prison sanction, while Stotts requested a 120-day sanction. When the district court was 

making its decision, Stotts' probation officer confirmed Stotts had already served a threeday intermediate jail sanction. The district court ordered a 180-day sanction because it 
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had originally granted Stotts probation after a dispositional departure and the district 

court had told Stotts this was his last chance at the last probation violation hearing. The 

district court again extended Stotts' probation by 24 months.

Stotts timely appeals.

ANALYSIS

Stotts argues the district court erred in imposing a 180-day intermediate prison 

sanction for his probation violation because he had dual diagnoses of mental health 

illness and substance abuse disorder, his living conditions at the Serenity House were 

unsanitary, and Covid-19 forced him to quarantine at a hotel where he relapsed into drug 

use. The State counters Stotts' appeal is moot because he has completed his intermediate 

sanction. Alternatively, the State argues the sanction was appropriate because Stotts had 

been granted a dispositional departure and was warned at his last violation hearing that it 

was his last chance.

Mootness

The State has provided us with a custodial status notification showing Stotts has 

completed serving his intermediate sanction and, for this reason, argues Stotts' appeal is 

moot. Stotts does not contest this fact but responds to the State's mootness argument by 

asserting a live issue exists because, if we agree with him, he could be given the 180-day 

sanction at a future probation violation hearing.

Mootness is a legal question which we review de novo. State v. Roat, 311 Kan. 

581, 590, 466 P.3d 439 (2020). Appellate courts do not generally decide moot questions 

or issue advisory opinions. However, "an appeal will not be dismissed as moot unless it is 

clearly and convincingly shown the actual controversy has ended, the only judgment that 
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could be entered would be ineffectual for any purpose, and it would not impact any of the 

parties' rights. [Citations omitted.]" State v. Tracy, 311 Kan. 605, 607-08, 466 P.3d 434 

(2020). Mootness is a discretionary policy used by the courts to avoid unnecessary issues 

but allows a court to consider an issue "when judicial economy would benefit from a 

decision on the merits." Roat, 311 Kan. at 587. A case where a defendant only seeks 

review of a completed sentence is not necessarily moot if possible collateral 

consequences to the sentence are enough to justify review on the merits. 311 Kan. at 592.

The State relies on State v. Montgomery, 295 Kan. 837, 844, 286 P.3d 866 (2012), 

in which our Supreme Court found Montgomery's appeal of his probation revocation

moot because Montgomery had completed his prison term. The Supreme Court 

determined that the district court had no authority to punish or supervise him any further 

in the case, so any action the court could take on Montgomery's probation revocation 

would not impact on his rights. 295 Kan. at 841.

Montgomery is easily distinguishable from Stotts' appeal. Here, Stotts is 

challenging the imposition of a 180-day intermediate prison sanction after he completed 

the sanction. But Stotts remains on probation; thus, the district court could still impose

additional sanctions should he violate his probation again. Moreover, the district court's 

future ability to revoke Stotts' probation after another violation is dependent on our 

validation of the district court's 180-day sanction. See K.S.A. 2014 Supp. 22-

3716(c)(1)(E). Thus, Stotts' appeal is not moot.

Standard of Review

We review the appropriateness of a district-court-imposed probation violation 

sanction for abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 

(2020). Judicial discretion is abused if the action is an error of law, is an error of fact, or 

is one no reasonable person would agree with. State v. Jones, 306 Kan. 948, 957, 398 
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P.3d 856 (2017). Stotts bears the burden to establish such an abuse of discretion. See 

State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).

A district court's discretion concerning the imposition of probation violation 

sanctions is limited by the provisions contained in K.S.A. 2014 Supp. 22-3716, the statute 

in effect at the time Stotts committed his original crimes of conviction. See State v. 

Dooley, 308 Kan. 641, 649, 423 P.3d 469 (2018) (discussing district court's discretion 

under graduated sanctioning scheme); State v. Dominguez, 58 Kan. App. 2d 630, 637, 

473 P.3d 932 (2020) (finding intermediate sanctioning scheme in effect at time original 

crimes committed applies). With some exceptions, the district court is required to impose 

graduated intermediate sanctions before revoking an offender's probation. K.S.A. 2014 

Supp. 22-3716(c).

At the time Stotts committed his crimes, intermediate sanctions included a 2- or 3-

day jail sanction and a 120- or 180-day prison sanction. K.S.A. 2014 Supp. 22-

3716(c)(1)(B), (C), (D). Here, the district court imposed a 180-day prison sanction, which

could be imposed only after Stotts had been given a 2- or 3-day jail sanction. See K.S.A. 

2014 Supp. 22-3716(c)(1)(D).

The parties proceed under the assumption that Stotts previously received a 2- or 3-

day intermediate jail sanction prior to the district court's imposition of the 180-day 

intermediate prison sanction. The transcript of the probation violation hearing shows the 

district court assumed Stotts had previously received a two- or three-day intermediate jail 

sanction, and, when asked by the court, the probation officer confirmed this fact. 

However, the rest of the record does not appear to support the probation officer's 

representation. There is no journal entry filed establishing that a two- or three-day

intermediate jail sanction had been previously imposed on Stotts. Moreover, the journal 

entry memorializing the probation violation hearing in which the district court imposed 

the 180-day intermediate prison sanction specifically fails to check the box indicating that 
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Stotts had previously received an intermediate sanction. It merely shows that Stotts had

previously received a 30-day jail sanction pursuant to K.S.A. 2020 Supp. 22-3716(c)(9), 

which is the current version of K.S.A. 2014 Supp. 22-3716(c)(11). However, this 

sanction is not an intermediate sanction and is not subject to the same prerequisites. See 

K.S.A. 2014 Supp. 22-3716(c)(11). Thus, we have doubts about the district court's legal 

authority to impose a 180-day prison sanction upon Stotts.

However, at no point has Stotts ever challenged the district court's legal authority 

to impose the 180-day intermediate prison sanction. Before us, Stotts attacks only the 

wisdom of the district court's decision, arguing no reasonable person would agree with it.

At the probation violation hearing, Stotts asked the district court to impose a 120-day 

intermediate prison sanction instead, suggesting Stotts may have invited any error by the 

district court because this intermediate sanction also cannot be imposed without Stotts 

having already received the 2- or 3-day intermediate jail sanction. See K.S.A. 2014 Supp. 

22-3716(c)(1)(C); State v. Stoll, 312 Kan. 726, 735, 480 P.3d 158 (2021) (litigant may 

not invite error then complain of error on appeal). Thus, Stotts has waived any challenge 

to the district court's legal authority to impose the 180-day intermediate prison sanction.

See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issue not briefed deemed 

waived or abandoned).

Addressing the merits of district court's action, Stotts asserts no reasonable person 

would agree with the district court's decision to impose such a severe sanction because of 

extenuating circumstances surrounding his violation. He argues a lesser sanction was 

more appropriate. Stotts was unsuccessfully discharged from Serenity House, then, while 

in quarantine in a hotel because of close contact with someone positive for Covid-19, 

Stotts submitted a positive UA for marijuana, amphetamines, methamphetamines, and 

MDMA. Stotts admitted to his probation officer that he did use those drugs. The district 

court found Stotts violated his probation, and Stotts does not challenge that finding here.
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Agreeing with the State's request and contrary to Stotts' wishes, the district court

imposed a 180-day intermediate prison sanction, explaining it did so because probation 

was originally granted as the result of a dispositional departure and, at Stotts' first 

probation violation hearing, the district court had warned him that this was his last 

chance—meaning Stotts needed to follow the conditions of his probation. The district 

court's stated reasons for imposing the sanction it did strike us as reasonable, and we see 

no abuse of discretion.

Affirmed.