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March 13, 2026 Get Citation Alerts Download PDF Add Note

State v. Bermudez

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 127257

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (50.5K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 127,257

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MANUEL BERMUDEZ III,
Appellant.

MEMORANDUM OPINION

Appeal from Finney District Court; RICHARD MARQUEZ, judge. Submitted without oral
argument. Opinion filed March 13, 2026. Reversed.

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

Tamara S. Hicks, assistant county attorney, Susan H. Richmeier, county attorney, and Kris W.
Kobach, attorney general, for appellee.

Before BOLTON FLEMING, P.J., ISHERWOOD and COBLE, JJ.

PER CURIAM: Manuel Bermudez III pled no contest to one count of possession of
methamphetamine in each of two separate cases. At sentencing, the district court applied
K.S.A. 21-6805(f)(1), otherwise known as "Special Rule 26," to sentence Bermudez to 16
months in prison in each case, and ordered his sentences to run consecutively. Under
Special Rule 26, a third or subsequent conviction for possession of a controlled substance
under certain Kansas statutes results in a presumed prison sentence. Without the
application of Special Rule 26, Bermudez' sentences would have each fallen into a

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presumed probation category. Bermudez finished serving both sentences on November
25, 2024.

On appeal, Bermudez argues that the district court erred in its application of
Special Rule 26 because his prior conviction in Texas for possession of
methamphetamine could not be considered under the special rule. The State did not
address the merits of Bermudez' appeal but argued that his appeal should be dismissed as
moot because Bermudez has served his sentences.

After a thorough review of the record, we first find that Bermudez' claim is not
moot. He has alleged, with the required specificity under Kansas law, the existence of a
substantial interest in a legal malpractice claim that would be impaired by dismissal. We
further find that the district court erred in its application of Special Rule 26. Accordingly,
we reverse the portion of the district court's sentencing order related to its application of
Special Rule 26.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of Finney County, Kansas. There, Bermudez pled no contest
to one count of possession of methamphetamine each in Case Number 21CR490 and
Case Number 22CR65. A presentence investigation report (PSI) was filed in each case
indicating Bermudez' criminal history was F. Since each of his convictions was classified
as a level 5 drug felony, his sentence in each case would have ordinarily fallen in a
presumptive probation category under the Kansas Sentencing Guidelines. K.S.A. 21-
6805(a).

Instead, the PSI in each case indicated that the sentence for each offense was
presumed prison, due to the application of "Special Rule 26, Third or Subs[equent]
Felony Drug Possession," which is codified at K.S.A. 21-6805(f)(1). Bermudez' criminal

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history worksheet listed a prior possession of methamphetamine conviction from Texas.
The other requisite prior conviction for Special Rule 26 was from a cross-scoring of the
convictions in 21CR490 and 22CR65 so that the current conviction in each case served as
a prior conviction in the other. Prior to sentencing, Bermudez filed a motion for
dispositional or durational departure in each case. At sentencing, the district court denied
Bermudez' departure motions and sentenced him to 16 months in prison in each case,
with the sentences to run consecutively, for a total prison term of 32 months. Bermudez
served both prison sentences and was released from prison on November 25, 2024.

ANALYSIS

I. IS BERMUDEZ' CAUSE OF ACTION MOOT BECAUSE HE HAS COMPLETED HIS
UNDERLYING SENTENCE?

The State's sole argument on appeal is that Bermudez' appeal is moot because he
has finished serving his prison sentences in this matter.

Standard of Review

The determination of whether a case is moot is subject to de novo review on
appeal. State v. Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020), overruled on other
grounds by State v. Phipps, 320 Kan. 616, 570 P.3d 1240 (2025), reh. granted October
17, 2025.

We consider mootness under a shifting burden of proof:

"In an appeal solely challenging a sentence, the party asserting mootness may establish a
prima facie showing of mootness by demonstrating that the defendant has fully
completed the terms and conditions of his or her sentence. The burden then shifts to the
party opposing the mootness challenge to show the existence of a substantial interest that

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would be impaired by dismissal or that an exception to the mootness doctrine applies.
[Citation omitted.]" Roat, 311 Kan. at 593.

We pause here to note recent developments concerning the application of the
mootness doctrine in Kansas. Recently, the Kansas Supreme Court issued its opinion in
State v. Phipps, 320 Kan. 616, 570 P.3d 1240 (2025), reh. granted October 17, 2025. In
Phipps, the Kansas Supreme Court overruled Roat's mootness analysis and instead held
that mootness is a jurisdictional bar for appellate courts. But the Kansas Supreme Court
has now granted rehearing in Phipps, effectively suspending its previous decision. See
Supreme Court Rule 7.06(c) (2025 Kan. S. Ct. R. at 51). Accordingly, we will proceed
under Roat's governing framework.

Discussion

Because Bermudez does not contest that he has finished serving his sentences, the
State has made "a prima facie showing of mootness by demonstrating that the defendant
has fully completed the terms and conditions of his or her sentence." Roat, 311 Kan. at
593. As a result, the burden shifts to Bermudez to demonstrate "the existence of a
substantial interest that would be impaired by dismissal or that an exception to the
mootness doctrine applies." 311 Kan. at 593.

Bermudez claims that he possesses an interest in a potential legal malpractice
claim against his trial attorney, and that this "substantial interest" would be impaired by
dismissal.

As a rule, Kansas appellate courts do not decide moot questions or render advisory
opinions. Roat, 311 Kan. at 590; State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866
(2012). But "the prospect of a suit for damages may create a sufficient interest in the case
pending before the court to allow the case to survive assertions of mootness." Roat, 311
Kan. at 594.
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It is well-established that a criminal defendant may seek damages against his or
her counsel for legal malpractice. See Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d 911,
cert. denied 540 U.S. 1090 (2003). But a defendant must first obtain postconviction relief
in his or her criminal case before bringing an action alleging malpractice against his or
her criminal defense attorney. 276 Kan. 116, Syl. ¶ 2. This requirement is often described
as the "exoneration rule." Under the exoneration rule, a defendant is required to receive
postconviction relief before they may bring a legal malpractice claim. Garcia v. Ball, 303
Kan. 560, 572, 363 P.3d 399 (2015). Under certain circumstances, a defendant's legal
interest in postconviction relief can create a "sufficient interest" to overcome mootness.
Roat, 311 Kan. at 594.

Having established that it is possible to overcome mootness through the
possessory interest of a potential legal claim, we next examine the proof required to
succeed.

In Roat, the defendant filed a motion to correct an illegal sentence. The district
court denied the motion and Roat appealed. While the case was pending on appeal, Roat
completed his sentence. The State argued that Roat's appeal was moot, but Roat
maintained that his case was not moot because he was considering a claim for legal
malpractice. Roat described his potential legal malpractice claim in response to a show-
cause order based on mootness:

'''[A] judgment in this case is necessary to determine whether Mr. Roat may pursue a
legal malpractice claim against his trial attorney . . . . Here, if Mr. Roat served prison
time he should not have, he may pursue a cause of action against his trial attorney for
allowing his criminal history score to go uncorrected. But that action can only be brought
upon a judicial determination the [sic] Mr. Roat's criminal history score is actually
incorrect. [Citation omitted.]'" 311 Kan. at 596.

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The Kansas Supreme Court found that while "[t]he preservation of rights for
future litigation is an interest that may preserve an appeal from dismissal based on
mootness," Roat did not meet this burden because he did not adequately describe his
underlying claim. 311 Kan. at 594. The court described Roat's claim as a "hypothetical
legal malpractice claim." 311 Kan. at 597.

The court also clarified that a potential legal malpractice claim must be
nonfrivolous and arguable to overcome mootness:

"A plaintiff must identify a 'nonfrivolous,' 'arguable' underlying claim in forward-looking
prisoner actions that seek to remove roadblocks to future litigation. See Lewis v. Casey,
518 U.S. 343, 352-53 & n.3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). 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.'" Christopher, 536 U.S.
at 416. Roat falls short of meeting this requirement.
"Roat provides little in the way of the details of what he might assert as a factual
basis for a legal malpractice claim. He leaves it to the appellate courts to flesh out the
nature of his claims against his trial counsel." 311 Kan. at 596-97.

On the same day Roat was released, the Kansas Supreme Court issued its opinion
in State v. Tracy, 311 Kan. 605, 466 P.3d 434, (2020). Tracy filed a motion to correct an
illegal sentence in district court, arguing the court improperly included out-of-state
convictions in his criminal history score. The district court denied the motion and Tracy
appealed. As the case made its way through the appellate courts, Tracy finished serving
his prison sentence, and the State argued the appeal was moot. Tracy countered that his
case was not moot because he might want to pursue a legal malpractice claim against his
trial attorney in the future. 311 Kan. at 609-10. Tracy provided no detail about what his
future cause of action might be. He simply argued that he was entitled to relief "due to
the improper classification of his criminal history." 311 Kan. at 609-10. The Kansas

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Supreme Court held that "[g]iven the superficial nature of his entirely hypothetical
contention, we hold Tracy fails to adequately support his claim." Tracy, 311 Kan. at 610.

In State v. Spears, No. 123,030, 2021 WL 4352536 (Kan. App. 2021)
(unpublished opinion), the defendant completed his sentence but argued his case was not
moot because he "sustained damages by serving a longer prison term than he would have
with his correct criminal history score." Spears, 2021 WL 4352536, at *3. In an effort to
overcome mootness, Spears set forth the elements of a potential legal malpractice claim,
but the panel concluded that Spears did not provide evidence of the required element of
harm.

"Yet even assuming that the first three elements are sufficient, we find Spears' damages
theory is not arguable. Spears must raise a nonfrivolous claim that his attorney caused
him injury, which caused him actual loss or damage. See Mashaney, 302 Kan. at 639.
The problem with Spears' damages theory is that it is purely retrospective and
speculative, and the record is unclear as to any harm Spears suffered." 2021 WL
4352536, at *4.

Thus, in Roat and Tracy, the defendants failed to articulate their potential
malpractice claims with sufficient factual clarity to survive mootness. And though we are
not bound by the panel's decision in Spears, see State v. Fleming, 308 Kan. 689, 706, 423
P.3d 506 (2018), we note that the panel in Spears found the defendant failed to
demonstrate the required element of harm. But the facts alleged by Bermudez in the
present case overcome each of those barriers and provide Bermudez a basis for relief
from a dismissal based on mootness.

The elements of a legal malpractice action are duty, breach, causation, and
damages. Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 639, 355
P.3d 667 (2015). As to duty, Bermudez alleges, "A criminal defense lawyer 'is obligated
to research relevant law to make an informed decision whether certain avenues will prove

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fruitful.'" State v. Dinkel, 314 Kan. 146, 152, 495 P.3d 402 (2021) (quoting Heard v.
Addison, 728 F.3d 1170, 1179 [10th Cir. 2013]). He specifically argues that his attorney
at sentencing had an obligation to review his PSI and determine whether the application
of Special Rule 26 was legally appropriate. As to breach, he alleges the plain language of
K.S.A. 21-6805(f)(1) indicates that Special Rule 26 only applies to prior Kansas
convictions. Bermudez' attorney at sentencing failed to object to the PSI or the district
court’s application of Special Rule 26. And as a result of his attorney's failure to object to
the PSI, or argue against the application of Special Rule 26, Bermudez says he was
sentenced to prison for 32 months instead of receiving probation. It is uncontroverted that
if no special rule applied, both of Bermudez' convictions would have fallen into a
presumed probation category.

As we explain below, the district court erred in applying Special Rule 26 in
Bermudez' cases and did so without objection from Bermudez' attorney. The sentencing
transcript indicates that Bermudez' defense attorney believed that the application of
Special Rule 26 was correct. When asked if she agreed with the district judge's statement,
"I show that special rule number 26 applies, which would be a third or subsequent felony
drug possession," the attorney responded, "Yes." These allegations, if proven, could
arguably establish causation. As to harm, we note that incarceration was not
contemplated by the parties within the plea agreement. "It is believed the Defendant has a
low criminal history score and will fall in a presumptive probation box. It is the
agreement of the parties that even if a Special Sentencing Rule applies that requires
prison, the parties will recommend probation." Instead, it appears that because of an
erroneous application of a special sentencing rule, Bermudez may have been sentenced to
prison instead of probation, and if true, those allegations could arguably establish the
element of harm. We draw no further conclusion as to the merits of Bermudez' legal
malpractice claim as that matter is not properly before us.

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In contrast to Roat, Tracy, and Spears, Bermudez has alleged "a 'nonfrivolous,'
'arguable' underlying claim" that seeks "to remove roadblocks to future litigation." Roat,
311 Kan. at 596. We find that Bermudez has met his burden of proof "to show the
existence of a substantial interest that would be impaired by dismissal or that an
exception to the mootness doctrine applies." 311 Kan. at 593. We therefore find
Bermudez' claim is not moot.

II. DID THE DISTRICT COURT IMPOSE AN ILLEGAL SENTENCE WHEN IT RELIED ON
AN OUT-OF-STATE CONVICTION TO APPLY K.S.A. 21-6805(f)?

Standard of Review

Whether a sentence is illegal is a question of law over which appellate courts
exercise unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).
Interpretation of a sentencing statute is a question of law, and the standard of review is
unlimited. State v. Moore, 309 Kan. 825, 828, 441 P.3d 22 (2019).

Discussion

First, we note that the State only briefed the issue of mootness and did not respond
to the merits of Bermudez' appeal. An issue not briefed is deemed waived or abandoned.
State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

Notwithstanding the State's waiver, we will briefly address the merits of this
appeal. At his sentencing, Bermudez did not object to his criminal history score or to the
application of Special Rule 26. The combination of Bermudez' criminal history score of F
along with the drug severity level 5 classification of each offense would have resulted in
a presumptive probation sentence but for the application of a special rule. K.S.A. 21-
6805(a). The district court used a prior possession of methamphetamine conviction from

9
Texas to trigger the application of Special Rule 26. Instead of probation, Bermudez was
sentenced to 32 months in prison.

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. "When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words." State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022).

Special Rule 26, the special sentencing provision found in K.S.A. 21-6805(f)(1),
states:

"The sentence for a third or subsequent felony conviction of K.S.A. 65-4160 or 65-4162,
prior to their repeal, K.S.A. 21-36a06, prior to its transfer, or K.S.A. 21-5706, and
amendments thereto, shall be a presumptive term of imprisonment and the defendant
shall be sentenced to prison as provided by this section."

It is uncontroverted that Bermudez' current crimes of conviction were two
convictions in two separate cases for possession of methamphetamine under K.S.A. 21-
5706(a). The district court properly cross-scored the convictions in those two cases
against each other to determine there was one present and one prior felony conviction for
possession of a controlled substance in each case. As a panel of our court recently
explained, "if a defendant pleads guilty to two crimes on the same day in two separate
cases, the conviction in each case counts against the other case as a prior conviction."
State v. McKinzy, No. 121,464, 2021 WL 4496098, at *1 (Kan. App. 2021) (unpublished
opinion).

The district court then relied on a 2022 conviction for possession of
methamphetamine out of Cooke County, Texas for the "third or subsequent felony
conviction" that the court believed triggered Special Rule 26. K.S.A. 21-6805(f)(1).
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K.S.A. 21-6805(f)(1) specifically includes violations of only four possible Kansas
statutes that can trigger Special Rule 26: "K.S.A. 65-4160 or 65-4162, prior to their
repeal, K.S.A. 21-36a06, prior to its transfer, or K.S.A. 21-5706, and amendments
thereto. . . ." The plain language of K.S.A. 21-6805(f)(1) does not include prior out-of-
state convictions. The legislature limited the language of the statute to prior violations of
only four specific Kansas statutes. Under the plain language of the statute, an out-of-state
conviction does not qualify as a "third or subsequent felony conviction" under K.S.A. 21-
6805(f)(1).

Other panels of our court have also concluded that the express language of a
statute often controls whether an out-of-state offense may satisfy a "prior offense"
requirement in our criminal sentencing statutes. See State v. Sargent, No. 105,053, 2011
WL 5027118, at *5 (Kan. App. 2011) (unpublished opinion) ("First, the plain meaning of
the forgery statute's progressive sentencing scheme suggests that only convictions 'of a
violation of this section [K.S.A. 21-3710]' are relevant; out-of-state convictions are not
mentioned."); State v. Kelly, No. 100,398, 2009 WL 3378205, at *4 (Kan. App. 2009)
(unpublished opinion) ("Repeated references to the use of convictions in other
jurisdictions is apparent in other statutes, and even within [K.S.A. ]21-4704, but the same
language is not found in K.S.A. 2006 Supp. 21-4704(1). If this is truly an oversight as
implied by the State, then the remedy lies with the legislature, not the courts.").

Turning back to K.S.A. 21-6805(f)(1), the preceding paragraph of the same
statute, K.S.A. 21-6805(e), provides:

"[t]he sentence for a second or subsequent conviction for unlawful manufacturing of a
controlled substance, K.S.A. 65-4159, prior to its repeal, K.S.A. 2010 Supp. 21-36a03,
prior to its transfer, K.S.A. 21-5703, and amendments thereto, or a substantially similar
offense from another jurisdiction . . . shall be a presumptive term of imprisonment . . . ."
(Emphasis added.)

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The intent of the legislature can be ascertained by the exclusion of out-of-state
convictions in one paragraph of the statute, K.S.A. 21-6805(f)(1), and the specific
inclusion of out-of-state convictions in another—K.S.A. 21-6805(e). Considering the
plain language in both paragraphs of the statute, K.S.A. 21-6805(f) does not allow for the
inclusion of prior out-of-state convictions when applying Special Rule 26.

Finally, this interpretation is also consistent with the explanation of Special Rule
26 found in the Revised Kansas Sentencing Guidelines Desk Reference Manual 52
(2025):

"26. Third or Subsequent Conviction for Drug Possession"

"The sentence for a third or subsequent felony conviction of K.S.A. [] 21-5706 shall be
presumed imprisonment. Such sentence shall not be considered a departure and shall not
be subject to appeal. K.S.A. 2025 Supp. 21-6805(f)(1). There is no indication in the
statute it would include priors that are substantially similar offenses from another state."

We find that the district court erred in applying Special Rule 26 when ordering
Bermudez' sentence. We reverse the district court's order applying Special Rule 26, but
remand is not necessary as Bermudez has already served the entirety of his sentences.

Reversed.

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