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NOT DESIGNATED FOR PUBLICATION

No. 122,936

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WAYNE A. STEWART,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Opinion filed December 17, 

2021. Affirmed.

Wayne Stewart, appellant pro se.

Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and WARNER, JJ.

PER CURIAM: In 2018, the State filed a petition under the Kansas Sexually Violent 

Predator Act (KSVPA) to adjudicate whether Wayne Stewart should be committed for 

care and treatment under that program. While that commitment action was pending, 

Stewart filed a separate petition for a writ of habeas corpus under K.S.A. 60-1501, 

challenging the court's authority in the KSVPA action. The district court held a hearing 

on Stewart's petition but ultimately dismissed his claim, finding the commitment 

adjudication could proceed. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

The pending KSVPA petition is the second the State has filed against Stewart, but 

it arises from conduct beginning 40 years ago. 

In 1981, Stewart pleaded guilty to attempted rape; in 1983, he was convicted of 

aggravated indecent liberties with a child. Before he was released from prison in 2001 for 

these convictions, the State filed a petition to involuntarily commit Stewart under the 

KSVPA. But an evaluation from Larned State Hospital found he did not qualify as a 

sexually violent predator—at that time, the evaluation indicated Stewart was unlikely to 

engage in similar future behavior, and any diagnosed mental disorders did not affect his 

ability to control his behavior. As a result, the Wyandotte County District Court 

dismissed the 2001 petition. 

Unfortunately, Stewart did engage in other harmful behavior. In 2009, the State 

charged Stewart with two counts of aggravated indecent liberties with a child and one 

count of attempted aggravated indecent liberties with a child. Stewart pleaded no contest 

in 2011 to four counts of aggravated battery for the conduct leading to these charges. The 

court imposed a controlling 120-month prison sentence, but it did not make any findings

at that time that Stewart's 2011 convictions were sexually motivated.

In January 2018, before Stewart's release from prison for the 2011 convictions, the 

State filed a second KSVPA petition in Wyandotte County District Court. The State 

based its petition on Stewart's 1981 and 1983 convictions and filed a psychologist's report 

noting Stewart met the KSVPA's requirements. The district court found the petition and 

report established probable cause that Stewart was a sexually violent predator and 

ordered he be held in the Wyandotte County Jail. Following an evidentiary hearing, the 

court reached the same conclusion and ordered Stewart to undergo an evaluation at 

Larned State Hospital. That evaluation also determined Stewart met the requirements for 
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involuntary commitment. The findings in both the initial report and the later evaluation 

were based, in part, on a sex-based mental-health disorder diagnosed after the 2001 

evaluation. 

In June 2019, Stewart filed a pro se petition for writ of habeas corpus under 

K.S.A. 60-1501—the suit giving rise to this appeal—challenging the legality of the 

adjudication. His petition raised two main arguments: the 2011 convictions could not 

form the basis of the adjudication because they did not involve sexually motivated 

offenses, and res judicata precluded a second adjudication based on his 1981 and 1983

convictions because the 2001 adjudication had been decided on the merits. 

After a hearing where both Stewart and the State presented arguments, the district 

court summarily dismissed the petition. It concluded that even if the 2011 convictions 

could not be used to prove Stewart had been convicted of a sexually violent offense, they 

were relevant to support other elements in the commitment action, such as the likelihood 

to reoffend. And the court found that res judicata did not apply because Stewart had 

failed to prove the 2001 adjudication had been dismissed with prejudice. 

Stewart appeals the dismissal of his K.S.A. 60-1501 petition. From the record 

before us, it is unclear whether Stewart's KSVPA adjudication has been resolved.

DISCUSSION

Stewart's pro se appeal raises four interrelated issues. They broadly fall into two 

categories: challenges to the use of the 1981 and 1983 convictions and challenges to the 

use of the 2011 convictions. We do not reach the merits of these claims, however, 

because we agree with the State that a K.S.A. 60-1501 petition is not an appropriate 

avenue for Stewart to collaterally challenge his ongoing commitment adjudication.
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Stewart filed his habeas petition under K.S.A. 2020 Supp. 60-1501(a), which 

allows "any person in this state who is detained, confined[,] or restrained of liberty on 

any pretense" to request a "writ of habeas corpus." In most instances, K.S.A. 60-1501 

provides an avenue for individuals to challenge the mode or condition of their 

confinement, including pretrial confinement. See Safarik v. Bruce, 20 Kan. App. 2d 61, 

Syl. ¶ 5, 883 P.2d 1211, rev. denied 256 Kan. 996 (1994); see also In re Mason, 245 Kan. 

111, 115, 775 P.2d 179 (1989) (person released on bond is still in custody and may file 

habeas petition).

In its arguments before the district court, the State focused primarily on the merits 

of Stewart's claims regarding his previous convictions. The State continues to make those 

arguments on appeal. But it also asserts another reason to support the district court's 

summary dismissal of Stewart's habeas petition: a habeas action is not an appropriate 

avenue under these circumstances for Stewart to challenge the court's rulings in the 

commitment adjudication. 

Because appellate courts are courts of review, we do not ordinarily consider issues 

raised for the first time on appeal. State v. Vonachen, 312 Kan. 451, Syl. ¶ 1, 476 P.3d 

774 (2020). But because this preservation rule in many instances stems from prudential 

concerns, we may consider new arguments on appeal if the issue warrants our review and 

if review is possible based on the record before us. State v. Parry, 305 Kan. 1189, 1192, 

390 P.3d 879 (2017). For example, appellate courts have previously decided to consider 

purely legal issues in the first instance if they are based on undisputed facts, or if

deciding an issue is necessary to serve the ends of justice or prevent deprivation of a 

fundamental right and would resolve the case. We have also considered arguments that 

provide an alternative basis for affirming the district court's decision. See State v. 

Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012). The State's argument falls into 

this third category of cases. And because that argument does not require any further 

factual development and ultimately resolves this appeal, we opt to consider it here.
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The State argues that Stewart's K.S.A. 60-1501 petition only raises issues that 

could be (or already have been) litigated in his commitment adjudication, and he should 

not be allowed to use this habeas petition as an appeal of that court's nonfinal ruling. 

Instead, the State asserts, Stewart should be required to litigate these issues in the 

commitment case or in his direct appeal of that case if he is involuntary committed. 

The Kansas Supreme Court has long held that a statutory petition for habeas 

corpus "is not a substitute for an appeal." State v. Shores, 187 Kan. 492, 493, 357 P.2d 

798 (1960). Instead, "[h]abeas corpus is an extraordinary legal remedy, and it should not 

be used when relief may be obtained by ordinary procedure." Foster v. Maynard, 222 

Kan. 506, 513, 565 P.2d 285 (1977). As the United States Supreme Court explained in 

Henry v. Henkel, 235 U.S. 219, 229, 35 S. Ct. 54, 59 L. Ed. 203 (1914), when it found 

that a criminal defendant in a federal case could not challenge pretrial rulings via a 

federal habeas petition:

"[T]he hearing on habeas corpus is not in the nature of a writ of error, nor is it intended as 

a substitute for the functions of the trial court. Manifestly, this is true as to disputed 

questions of fact, and it is equally so as to disputed matters of law, whether they relate to 

the sufficiency of the indictment or the validity of the statute on which the charge is 

based. These and all other controverted matters of law and fact are for the determination 

of the trial court. If the objections are sustained or if the defendant is acquitted, he will be 

discharged. If they are overruled and he is convicted, he has his right of review. The rule 

is the same whether he is committed for trial in a court within the district, or held under a 

warrant of removal to another state. He cannot, in either case, anticipate the regular 

course of proceeding by alleging a want of jurisdiction, and demanding a ruling thereon 

in habeas corpus proceedings. [Citations omitted.]"

Thus, it is "well settled that in the absence of exceptional circumstances . . . the 

regular judicial procedure should be followed and habeas corpus should not be granted in 

advance of a trial." Jones v. Perkins, 245 U.S. 390, 391, 38 S. Ct. 166, 62 L. Ed. 358 
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(1918). This principle makes sense. In most instances, justice is best served by allowing 

an original proceeding to run its course without collateral intervention. To hold otherwise 

would be to open the floodgates to potential habeas petitions challenging virtually any 

pretrial ruling. And while there are limited instances where courts have granted writs of 

habeas corpus before trial, those cases are the exception, not the rule. See, e.g., In re 

Habeas Corpus Petition by Bowman, 309 Kan. 941, 441 P.3d 451 (2019) (finding 

double-jeopardy principles were an extraordinary circumstance to allow a pretrial writ of 

habeas corpus when State was going to seek an unlawful second criminal trial); In re 

Care & Treatment of Easterberg, 309 Kan. 490, 437 P.3d 964 (2019) (likening a KSVPA 

commitment proceeding to a second trial and granting a writ of habeas corpus in an 

original action to determine whether the KSVPA trial court had jurisdiction to proceed). 

Stewart asserts that his habeas petition is similar to the petition in Easterberg and 

thus we should reach a similar result. We agree that there are many similarities between 

the two cases: Both Stewart and Easterberg were undergoing KSVPA commitment 

proceedings. Both Stewart and Easterberg were charged in previous cases with sexually 

violent crimes, but they each entered pleas for crimes that are not listed as sexually 

violent offenses in Kansas statutes. See K.S.A. 2020 Supp. 59-29a02(e) (listing sexually 

violent offenses). But there are significant differences between the two cases as well. 

Most notably, Stewart has been convicted of two other sexually violent offenses (the 

1981 attempted rape and the 1983 aggravated-indecent-liberties offense) involving young 

children, while Easterberg had not. Thus, the legal question raised in Easterberg

regarding whether Easterberg could be considered for commitment at all is a very 

different question than the issue raised in this case.

In order for Stewart's case to be in an analogous procedural circumstance to 

Easterberg's, we would have to disregard Stewart's previous convictions. Stewart argues 

that preclusion principles require us to do just that since the 2001 KSVPA adjudication 

was voluntarily dismissed. But Stewart presented this same argument to the district court 
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in the current KSVPA proceeding, and the court found as a factual matter that the 

previous case had been dismissed without prejudice—meaning the preclusive principles 

Stewart cites do not apply. See Crockett v. Medicalodges, Inc., 247 Kan. 433, 438, 799 

P.2d 1022 (1990) (res judicata does not apply when a case is dismissed without 

prejudice), overruled on other grounds by Martin v. Naik, 297 Kan. 241, 300 P.3d 625 

(2013). Thus, Stewart's habeas petition attempts to do just what the Kansas Supreme 

Court has long stated that habeas petitions cannot: substitute for an appeal of the district 

court's nonfinal factual findings and legal conclusions in the commitment case. 

Our review of the transcript of the hearing in this case shows that the district court 

judge appreciated the difficult procedural quagmire before him. And with good reason: 

Stewart does not allege sufficiently exceptional circumstances that would allow him to 

use his habeas petition to collaterally challenge his ongoing commitment proceeding. For 

this reason, we conclude—albeit for a different reason than the district court—that 

dismissal of Stewart's K.S.A. 60-1501 petition was appropriate. 

Affirmed.