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March 27, 2026 Get Citation Alerts Download PDF Add Note

State v. Wente

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 128231

• Precedential Status: Non-Precedential

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.8K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 128,231

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

VICTOR ALLEN WENTE,
Appellant.

MEMORANDUM OPINION

Appeal from Sheridan District Court; KEVIN BERENS, judge. Submitted without oral argument.
Opinion filed March 27, 2026. Appeal dismissed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Andrew J. Lohmann, assistant solicitor general, and Kris W. Kobach, attorney general, for
appellee.

Before PICKERING, P.J., CLINE, J., and CAREY HIPP, District Judge, assigned.

CLINE, J.: Victor Allen Wente appealed the district court's revocation of his
probation and assessment of jail credit. But while his appeal was pending, Wente was
released from prison. We find Wente's appeal is moot and therefore dismiss it.

On February 5, 2018, the district court sentenced Wente in three cases. The court
imposed consecutive prison sentences in all three cases but suspended those sentences
and placed Wente on probation for 12 months.

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On February 8, 2019, a voluntary extension of probation was filed. This extension
sought to extend Wente's probation "until all court obligations are paid in full." Wente,
his intensive supervision officer, the county attorney, and the presiding judge all signed
this extension.

On August 5, 2019, the district court found that Wente violated his probation and
extended his probation for 12 months. Then on January 6, 2020, after another violation,
the district court revoked Wente's probation and imposed his underlying prison sentences.
The court did not grant Wente any jail credit when it imposed his sentences.

Wente timely appealed the revocation of his probation. But Wente was not
appointed counsel until June 12, 2024.

While Wente's appeal was pending, the State filed a notice of change in custodial
status showing that Wente had served his sentence and had been released. After this, our
court issued a show cause order requesting the parties to explain why this case should or
should not be dismissed on mootness grounds.

Wente asserts two reasons why his appeal is not moot. First, he argues that we
must consider his appeal since he is asserting the district court did not have jurisdiction to
revoke his probation. Second, Wente claims if he is successful on appeal he can pursue
expungement of his convictions sooner and he can pursue "civil remedies" such as a legal
malpractice suit against his counsel.

Standard of Review and Relevant Legal Framework

Kansas courts do not have the constitutional authority to issue advisory opinions.
State ex rel. Morrison v. Sebelius, 285 Kan. 875, 898, 179 P.3d 366 (2008). Rather,
courts decide concrete questions that will have an actual impact on the parties before it.

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And, even if the case began with an active dispute, courts will generally not continue to
hear the case if the issues become moot. Roat, 311 Kan. at 584. "Mootness occurs when
circumstances, such as completing a sentence, would render a judicial decision
ineffectual to a party's vital rights." State v. Wilson, 319 Kan. 55, 58, 552 P.3d 1228
(2024).

Kansas courts use a burden-shifting framework to assess whether a moot case
should be dismissed. A party can seek dismissal by showing that the actual controversy in
the case has ended and that any judgment that could be entered "'would be ineffectual for
any purpose, and it would not impact any of the parties' rights.'" Roat, 311 Kan. at 584.
The party asserting that issues in a case have become moot must make a prima facie
showing that the actual controversy in the case has ended. See 311 Kan. 581, Syl. ¶ 6.
The burden then shifts to the other party, who must "show the existence of a substantial
interest that would be impaired by dismissal" or convince this court that "an exception to
the mootness doctrine applies." 311 Kan. 581, Syl. ¶ 7.

Last summer, the Kansas Supreme Court issued its opinion in State v. Phipps, 320
Kan. 616, 570 P.3d 1240 (2025), reh. granted October 17, 2025, purporting to overrule
Roat's mootness analysis and replace that burden-shifting framework with an absolute
jurisdictional bar against hearing moot cases. But the court has granted a rehearing in
Phipps and has ordered supplemental briefing on the issues in that case, effectively
suspending its previous decision. See Supreme Court Rule 7.06(c) (2026 Kan. S. Ct. R. at
51). Because of this, we must proceed under Roat's framework.

Wente fails to overcome his burden of showing the existence of a substantial interest that
would be impaired by dismissal, and he does not argue that an exception to the mootness
doctrine applies.

The State asserts that Wente's two appellate arguments became moot once Wente
served his sentence and was released in this case. It maintains that whether the district

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court had jurisdiction to revoke Wente's probation is a moot issue because this court
cannot change the sanction imposed given that Wente served his sentence. And it asserts
that Wente's jail credit claim is also moot because his sentence has been served and his
prison term cannot now be shortened to account for a miscalculation of jail credit.

Wente makes no argument on whether his jail credit claim is moot. We therefore
find he has waived this issue on appeal by failing to brief it. See State v. Davis, 313 Kan.
244, 248, 485 P.3d 174 (2021) (An issue not briefed is deemed waived or abandoned.).
As for his other claim, Wente contends that this court has a duty to address jurisdiction,
and he contends this duty "trumps" mootness concerns. He also argues that a successful
appeal would impact both his right to seek expungement sooner and pursue a legal
malpractice claim against his counsel.

The problem with Wente's jurisdictional argument is it does not address the effect
of a decision on the merits. Even if this court were to consider whether the district court
had jurisdiction over his probation revocation, the end result is the same: This court
cannot alter history and change the fact that Wente has already served the sanction he
claims the court had no jurisdiction to order. And, as the State points out, this court has
dismissed moot claims even when jurisdictional claims were made. For example, in In re
Care & Treatment of Teer, No. 89,652, 2004 WL 1191445, at *1-2 (Kan. App. 2004)
(unpublished opinion), we found that amendments to a statute mooted the defendant's
claim that the court lacked jurisdiction.

We find Wente's other arguments equally unpersuasive. For one, Wente has not
shown that a successful appeal would impact the time frame in which he could
successfully pursue an expungement of the three convictions in the cases which underlie
this appeal. Under K.S.A. 21-6614(a), a person convicted of a severity level 9 felony
(like Wente was in the three cases at issue in this appeal) can petition the convicting court
for expungement if three or more years have elapsed since the person satisfied the

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sentence imposed or was discharged from probation. K.S.A. 21-6614(h) provides some
requirements for expungement. It allows for the expungement of a petitioner's arrest
record, conviction, or diversion if the court makes certain findings. It states:

"At the hearing on the petition, the court shall order the petitioner's arrest record,
conviction or diversion expunged if the court finds that:
(1)(A) The petitioner has not been convicted of a felony in the past two years and
no proceeding involving any such crime is presently pending or being instituted against
the petitioner if the petition is filed under subsection (a)(1) or (a)(2); or
(B) no proceeding involving a felony is presently pending or being instituted
against the petitioner if the petition is filed under subsection (a)(3);
(2) the circumstances and behavior of the petitioner warrant the expungement;
(3) the expungement is consistent with the public welfare; and
(4) with respect to petitions seeking expungement of a felony conviction,
possession of a firearm by the petitioner is not likely to pose a threat to the safety of the
public." K.S.A. 21-6614(h).

As the State points out, Wente has several impediments to pursuing an
expungement apart from this appeal.

For one, the State asks this court to take judicial notice under K.S.A. 60-409 of a
case pending against Wente at the time the State filed its brief. This case involved felony
possession of methamphetamine alleged to have occurred on March 29, 2025, which was
after Wente's sentences expired in the cases that are the subject of this appeal. To be
eligible for an expungement, an applicant cannot have a felony conviction in the prior
two years or a felony case presently pending. Because Wente has a pending felony case,
he would not be eligible for expungement.

Next, Wente's presentence investigation report revealed that at the time of
sentencing he had an outstanding warrant, a failure to appear in municipal court, and nine
other felony cases pending. And, last, the State asks this court to take judicial notice of

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Wente's 2020 conviction for criminal use of a weapon in another case. Therefore,
according to the State, given Wente's pending charges and extensive criminal behavior,
the likelihood that this appeal, even if successful, will change his ability to obtain
expungement before 2028 is too tenuous and speculative to prevent this court from
dismissing it as moot.

In response, Wente does not dispute the existence of any pending cases or his
extensive criminal history. Instead, he cites K.S.A. 21-5108(b) for the proposition that he
must be presumed innocent of all pending charges. From this, he claims we must presume
his innocence and presume that any pending charges will be resolved in his favor.

Yet what Wente misses is that it is not a matter of whether he is presumed
innocent of any of the charges. Under the expungement statute, one of the circumstances
preventing a petitioner from successfully seeking expungement is a pending felony case.
And here, Wente would not be eligible for expungement regardless of whether he is
successful on this appeal because he has a felony case pending against him. Because of
this, Wente's expungement argument does not present a compelling reason preventing us
from dismissing this case as moot.

As for Wente's last argument, he claims the outcome of this appeal "could also
impact [his] ability to pursue civil remedies in the future." Wente stated that he "has
communicated to counsel that he intends to pursue civil remedies if his appeal is
successful."

Wente is correct that pursuing a legal malpractice suit is an interest which can
prevent an appeal from becoming moot. But our Supreme Court has said that when
evaluating whether the interest in a malpractice suit is a vital, or substantial, right
requiring a judgment, a "plaintiff must identify a 'nonfrivolous,' 'arguable' underlying
claim in forward-looking prisoner actions that seek to remove roadblocks to future

6
litigation." Roat, 311 Kan. at 596. And the "predicate claim must be described well
enough to apply the 'nonfrivolous' test and to show that the 'arguable' nature of the
underlying claim is more than just 'hope.'" 311 Kan. at 596-97. "Failure to brief an
analytic framework sufficiently for effective appellate review is tantamount to not raising
the issue at all." 311 Kan. at 597.

Wente fails to describe any theory of malpractice he could assert against his
counsel, and we are not required to imply one. Simply stating that he intends to pursue a
legal malpractice suit is not enough to get past the threshold established by our Supreme
Court. See 311 Kan. at 596-97. Therefore, Wente's civil remedy argument is equally
unavailing to show that this appeal is not moot.

Appeal dismissed.

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