                      IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              Nos. 113,531
                                                   113,532


                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                             TONY R. ROAT,
                                               Appellant.


                                     SYLLABUS BY THE COURT

1.
               A case is moot when a court determines it is clearly and convincingly shown that
     the actual controversy has ended, that the only judgment that could be entered would be
     ineffectual for any purpose, and that it would not have an impact on any of the parties'
     rights.


2.
               The mootness doctrine is based on and gives effect to prudential considerations,
     such as conservation of judicial resources.


3.
               The determination of whether a case is moot is subject to de novo review on
     appeal.




                                                    1
4.
            Before dismissing cases as moot, courts must exercise caution and explore with
     due consideration the wide variety of interests a party asserts.


5.
            The party asserting mootness generally bears the initial burden of establishing that
     a case is moot in the first instance.


6.
            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.


7.
            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
     impaired by dismissal or that an exception to the mootness doctrine applies.


8.
            The prospect of a later suit for damages may create a sufficient interest in a case
     pending before an appellate court to allow the case to survive a mootness challenge.


9.
            Changed circumstances will not lead to dismissal of an appeal if leaving a
     judgment intact might affect vital rights of the parties.




                                                   2
10.
              Legal malpractice claims cannot be grounded on an attorney's failure to make
      arguments for a change in the law, even if such a change later takes place.


11.
              An abstract interest in the outcome of litigation does not prevent the litigation
      issue from becoming moot; the interest must have an impact on the legal rights of a party.


12.
              Mere stigma or "rightness" is insufficient to justify continuing to exercise
      jurisdiction over an appeal.


13.
              When courts are addressing possible mootness, litigants must do more than
      mention speculative rights; they must give substance to their arguments when asserting
      that protection of collateral rights necessitates resolution of their underlying appellate
      issues. In a similar vein, appellate courts must analyze and evaluate those arguments
      before exercising the prudential authority to dismiss appeals because of mootness.


              Review of the judgment of the Court of Appeals in an unpublished order filed February 3, 2016.
      Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed June 19, 2020. Judgment
      of the Court of Appeals dismissing the appeal is affirmed.


              Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause, and Corrine E.
      Gunning, of the same office, was on the brief for appellant.


              Lance J. Gillet, , assistant district attorney, argued the cause, and Julie A. Koon, and Boyd K.
      Isherwood, assistant district attorneys, Marc Bennett, district attorney, and Derek Schmidt, attorney
      general, were on the brief for appellee.

                                                           3
The opinion of the court was delivered by


       ROSEN, J.: In 2009, Tony Roat was charged with one count of making a criminal
threat, charged as a severity level 9, nondrug person felony. He eventually entered into a
plea agreement to that charge. On December 18, 2009, he was sentenced to a term of 11
months, with a 12-month probation period. In determining his criminal history, the
district court relied on a 1984 Kansas burglary conviction that the presentence
investigation report (PSI) classified as a person felony. On August 4, 2010, his probation
was revoked and the prison term was imposed.


       On May 17, 2011, Roat entered into a plea agreement in a separate case to one
count of possession of a controlled substance, a severity level 4 drug felony. Prior to
sentencing, he filed a motion to withdraw his plea, arguing that he was actually innocent
because he did not possess methamphetamine. The motion was denied. On April 26,
2012, the district court sentenced him to 34 months in prison, with an effective beginning
sentence date of December 16, 2011. The district court again relied on the 1984 burglary
classification. In both cases, Roat did not object to his criminal history score. The district
court's denial of his motion to withdraw his plea was affirmed in State v. Roat, No.
108,102, 2013 WL 4046450 (Kan. App. 2013) (unpublished opinion), rev. denied 299
Kan. 1273 (2015).


       On June 9, 2014, Roat filed through counsel a motion to correct an illegal
sentence, alleging that the court had improperly calculated his criminal history when
imposing his sentence, in light of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Counsel filed a similar motion
in November 2014, arguing that both sentences were illegal. The district court denied the
motions.


                                              4
       Roat appealed to the Court of Appeals. On January 15, 2016, the State filed a
notice of change of custodial status, informing the court that, as of February 28, 2015,
Roat was no longer subject to Kansas Department of Corrections supervision because he
had satisfied both the prison and post-release supervision provisions of his sentences in
the two cases. On January 20, 2016, the Court of Appeals issued an order directing him to
show cause why the appeal should not be dismissed as moot. Roat filed a response, in
which he argued that his sentence could have an impact on future sentences and that he
might want to pursue a legal malpractice claim against his trial attorney for not raising
the Murdock and Dickey issues when he was sentenced. The Court of Appeals noted the
response and dismissed his appeal. This court granted review over this dismissal.


       Both before and after oral argument, the parties filed letters and responses under
Rule 6.09 (2020 Kan. S. Ct. R. 39), in which they cited to cases and statutory
amendments relating to the effect that possible changes in the law might have on this
appeal. On July 17, 2019, this court issued an order directing the parties to file
supplemental briefing on the impact that 2019 amendments to K.S.A. 22-3504 might
have on the appeal. Both parties filed supplemental briefs as directed, and their positions
are noted.


Discussion


       The sole issue in this appeal is whether Roat's appeal has become moot as a
consequence of the expiration of his sentencing conditions. It is tempting to take
shortcuts when addressing such a question, either by adopting a bright line rule that
expiration of a sentence necessarily renders an appeal moot or by holding that any
asserted legal interest in continuing appellate review suffices to preserve an appeal.




                                              5
       We consider either approach improper, however, both in terms of protecting the
rights of parties to have their day in court and in terms of protecting courts from
burdensome and fruitless litigation. Our analysis includes the following: a discussion of
the basis and application of the mootness doctrine, and the consequent standard of
review; an examination of the ruling by the Court of Appeals in light of that discussion;
an analysis of Roat's claims as they relate to mootness; and the effect of the 2019
amendments to K.S.A. 22-3504 on Roat's appeal. We will conclude that the Court of
Appeals properly dismissed the appeal as moot, despite engaging in either erroneous or
insufficient analysis of the question.


The Mootness Doctrine


       A case is moot when a court determines that "'it is clearly and convincingly shown
the actual controversy has ended, the only judgment that could be entered would be
ineffectual for any purpose, and it would not impact any of the parties' rights.'" State v.
Montgomery, 295 Kan. 837, 840-41, 286 P.3d 866 (2012). A case that is moot is properly
subject to a motion to dismiss. Hanson v. Griffing, 129 Kan. 597, 283 P. 659 (1930).


       A. Mootness Is a Discretionary Policy Based on Judicial Economy


       Kansas has historically considered the mootness doctrine as grounded in
preserving court resources and time. As early as 1899, this court stated its basis for
declining to consider "mere moot questions": "'The time of this court ought not to be
occupied by the consideration of abstract questions of law, however important and
interesting they may be.'" State, ex rel., v.Railway, 90 Kan. 20, 56 P. 755 (1899) (quoting
Hurd v. Beck, 88 Kan. 11, 12, 45 P. 92 [1896]).




                                              6
       In 1945, this court explicitly rejected a jurisdictional component to mootness and
described mootness as a "rule of court policy," explaining that "[t]he fact that an issue has
become moot does not necessarily mean that the appellate court is without jurisdiction to
determine it." Moore v. Smith, 160 Kan. 167, 170-71, 160 P.2d 675 (1945). This
understanding of mootness was consistently maintained for about 15 years. See, e.g.,
State ex rel. Anderson v. Engler, 181 Kan. 1040, 1042, 317 P.2d 432 (1957).


       But this court began to stray from that course in 1961, when it stated that a trial
court "had no authority to enter any judgment other than a dismissal of the action" when
an issue was moot. Graves v. State Bd. of Pharmacy, 188 Kan. 194, 197, 362 P.2d 66
(1961). With that holding, the Graves court implied that mootness is a question of
jurisdiction.


       From that point, the court bounced between the two lines of thought. In 1976, it
confirmed Moore, explaining that mootness does not deprive a court of jurisdiction to
decide an issue. Knowles v. State Bd. of Ed., 219 Kan. 271, 278, 547 P.2d 699 (1976).
But, in 1980, it reverted to the opinion that a "court is without constitutional authority to
render advisory opinions," explaining that "[s]uch an opinion would go beyond the limits
of determining an actual case or controversy and would violate the doctrine of separation
of powers." Nat'l Ed. Ass'n-Topeka, Inc. v. U.S.D. 501., 227 Kan. 529, 531-32, 608 P.2d
920 (1980). In 1985, it cited Knowles and recognized mootness as a question of court
policy. Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682(1985). But in 1991,
it cited Nat'l Ed. Ass'n-Topeka, Inc. and described mootness as a jurisdictional
consideration. Miller v. Ins. Mgmt. Assocs., Inc., 249 Kan. 102, 109-10, 815 P.2d 89
(1991).


       In these decisions, the court has not acknowledged the tension between the two
lines of thought. To the contrary, in 1991, it appeared to embrace both. It said "'the court
                                              7
is without constitutional authority to render advisory opinions[,]' [but] [a]n exception to
this general rule is recognized where the case involves a question of public interest even
though it has become moot as to the parties involved." State ex rel. Stephan v. Johnson,
248 Kan. 286, 290-91, 807 P.2d 664 (1991). In stating that the court has no constitutional
authority to decide a moot issue but then recognizing that it will decide a moot issue
when a certain exception applies, the court apparently regarded mootness as both
jurisdictional and prudential.


       From there, this court's decisions embraced one or the other of these positions
without acknowledging the existence of the other. See, e.g., Allenbrand v. Zubin Darius
Contractor, 253 Kan. 315, 317, 855 P.2d 926 (1993); Sheila A. v. Finney, 253 Kan. 793,
796-97, 861 P.2d 120 (1993) (mootness is jurisdictional); Board of County
Commissioners v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996) (mootness is court
policy); Smith v. Martens, 279 Kan. 242, Syl. ¶ 1, 106 P.3d 28 (2005) (mootness is court
policy).


       In 2008, this court expanded on its position that mootness is a jurisdictional
question. In State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888-98, 179 P.3d 366
(2008), this court that the "separation of powers doctrine embodied in the Kansas
constitutional framework" imposes a "constitutional case-or-controversy requirement"
and explained that, if an issue fails to present a case or controversy, a Kansas court is
without power to decide that issue. This court then set out four requirements of a case or
controversy. It said, "As part of the Kansas case-or-controversy requirement, courts
require: (a) parties must have standing; (b) issues cannot be moot; (c) issues must be ripe,
having taken fixed and final shape rather than remaining nebulous and contingent; and
(d) issues cannot present a political question." (Emphasis added.) 285 Kan. at 896.




                                              8
       This court has cited Sebelius a number of times for the notion that there is no case
or controversy when an issue is moot. See Creecy v. Kansas Department of Revenue, 310
Kan. 454, 460, 447 P.3d 959 (2019) (one of four elements of case-or-controversy
requirement is that issue not be moot); State v. Cheever, 306 Kan. 760, 786, 402 P.3d
1126, cert. denied 138 S. Ct. 560 (2017) (same); Solomon v. State, 303 Kan. 512, 521,
364 P.3d 536 (2015) (same); Gannon v. State, 298 Kan. 1107, 1119, 319 P.3d 1196
(2014) (same).


       Since 2008, this court has included mootness in this list of four considerations
when setting out the law before analyzing whether the parties have standing, whether an
issue is ripe, or whether an issue is a political question. But when it has considered only
whether an issue was moot, this court has not mentioned the jurisdictional role of
mootness or its place in the case and controversy analysis. Instead, it has continued to
describe mootness as a doctrine grounded in court policy. See Mundy v. State, 307 Kan.
280, 288, 408 P.3d 965 (2018); State v. Hollister, 300 Kan. 458, 467, 329 P.3d 1220
(2014) State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014); State v. Hilton, 295
Kan. 845, 849, 286 P.3d 871 (2012); State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455
(2009).


       Recognizing mootness to be a discretionary policy aimed at avoiding unnecessary
or fruitless issues has the benefit of allowing a court to consider moot issues when
judicial economy would benefit from a decision on the merits. For example, in Parsons v.
Bruce, 270 Kan. 839, 841-42, 19 P.3d 127 (2001), an issue was raised concerning the
computation of a conditional release date. The appellant was conditionally released while
the appeal was pending. This court elected to retain the appeal "in the interest of judicial
economy" despite its apparent mootness. 270 Kan. 842. See also State v. Berry, 292 Kan.
493, 514, 254 P.3d 1276 (2011) (court addresses issues rendered moot by reversal for
reasons of judicial economy).
                                              9
       The discretionary, policy-based approach to mootness contrasts with a
jurisdictional approach to which federal courts nominally subscribe. As has been
frequently noted, however, the federal constitutional theory is not grounded in history and
is not applied consistently.


       The constitutional, jurisdictional concept of mootness is relatively new to the
federal courts. It first appeared in 1964—in a footnote that referred to two law journal
articles but to no cases—in Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S. Ct. 391, 11
L. Ed. 2d 347 (1964). From there, the Jafco dicta gradually picked up steam, with a
slowly expanding body of cases citing to Jafco and to other cases citing to Jafco,
eventually leading to a general, but not exclusive, federal doctrine that mootness is
grounded in Article III of the United States Constitution. This phenomenon is explored in
detail by Matthew I. Hall in The Partially Prudential Doctrine of Mootness, 77 Geo.
Wash. L. Rev. 562 (2009). Hall summarized the inconsistencies in federal mootness law:


               "The law of mootness lacks a coherent theoretical foundation. On the one hand,
       mootness has been regarded—at least since 1964—as a limitation on federal court
       jurisdiction, mandated by Article III of the United States Constitution. Under this
       account, because mootness is a constitutional, and not merely a prudential, limitation on
       federal court jurisdiction, it is not waivable, may be raised at any point in the litigation,
       and must be raised by the Court sua sponte where circumstances suggest a possible
       mootness issue.


               "On the other hand, courts routinely hear moot cases where strong prudential
       reasons exist to do so—a practice that cannot be reconciled with the belief that mootness
       is a mandatory jurisdictional bar. So-called 'exceptions' to the doctrine of mootness
       endow courts with extensive discretion about which moot claims they will dismiss and
       which they will choose to hear. For example:




                                                     10
                 "• There is a longstanding practice among courts of hearing moot claims, so long
       as the claim is inherently short-lived and the party asserting the claim also has a
       reasonable expectation that the asserted wrong could recur.


                 "• Under certain circumstances, federal courts allow plaintiffs with moot claims
       to avoid dismissal by asserting the rights of nonparties under several ostensibly distinct
       doctrines that I will refer to collectively as the doctrine of 'third-party nonmootness.'


                 "• Federal courts have repeatedly declined to dismiss apparently moot claims
       based on discretionary factors having to do with judicial administration or authority, such
       as sunk costs on the part of courts, or evidence of gamesmanship by a party in taking
       action that appears calculated to moot the case.


                 "Courts and scholars refer to the doctrines under which courts elect to hear moot
       cases as 'exceptions' to the mootness bar, but these exceptions do not 'prove the rule'—
       they debunk it. The exceptions to mootness do not appear to be based on any
       interpretation of Article III's Case or Controversy Clause—as they would be if mootness
       were actually applied as a constitutionally mandated limit on federal court jurisdiction.
       Rather, as articulated and applied, they are based on prudential considerations, such as
       protection of judicial efficiency and authority, the preference for sufficiently-motivated
       parties, and avoidance of party gamesmanship. The frequent invocation of these
       exceptions by federal courts is thus hard to reconcile with the conventional understanding
       of mootness as a constitutionally mandated jurisdictional bar." 77 Geo. Wash. L. Rev. at
       562-64.


       Hall concluded that the haphazard application of the constitutional jurisdictional
basis of federal mootness law "is symptomatic of a deep confusion at the core of the
modern understanding of mootness." 77 Geo. Wash. L. Rev. at 564. This confusion has
expressed itself when courts have attempted to sort out the inconsistencies. See, e.g., Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121-22 (10th Cir.
2010) (federal courts recognized two kinds of mootness: constitutional and prudential;

                                                     11
the latter is based on considerations of prudence and comity and discretion whether to
exercise court's constitutional power).


       In a concurring opinion in Honig v. Doe, 484 U.S. 305, 330-31, 108 S. Ct. 592, 98
L. Ed. 2d 686 (1988), Chief Justice Rehnquist discussed the evolution of the federal
jurisdictional mootness doctrine. He noted that the federal courts rely on the "case or
controversy" requirement—except when they don't. He pointed out common examples of
the federal courts sidestepping the case or controversy requirement when it was judicially
prudent to do so, and he even argued that cases that have been fully briefed and argued
should be decided, even if intervening events would eliminate a case or controversy:


               "The logical conclusion to be drawn from these cases, and from the historical
       development of the principle of mootness, is that while an unwillingness to decide moot
       cases may be connected to the case or controversy requirement of Art. III, it is an
       attenuated connection that may be overridden where there are strong reasons to override
       it. The 'capable of repetition, yet evading review' exception is an example. So too is our
       refusal to dismiss as moot those cases in which the defendant voluntarily ceases, at some
       advanced stage of the appellate proceedings, whatever activity prompted the plaintiff to
       seek an injunction. See, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,
       289, n. 10, 102 S. Ct. 1070, 1074, n. 10, 71 L. Ed. 2d 152 (1982); United States v. W.T.
       Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953). I believe that
       we should adopt an additional exception to our present mootness doctrine for those cases
       where the events which render the case moot have supervened since our grant of
       certiorari or noting of probable jurisdiction in the case. Dissents from denial of certiorari
       in this Court illustrate the proposition that the roughly 150 or 160 cases which we decide
       each year on the merits are less than the number of cases warranting review by us if we
       are to remain, as Chief Justice Taft said many years ago, 'the last word on every
       important issue under the Constitution and the statutes of the United States.' But these
       unique resources—the time spent preparing to decide the case by reading briefs, hearing
       oral argument, and conferring—are squandered in every case in which it becomes
       apparent after the decisional process is underway that we may not reach the question

                                                    12
       presented. To me the unique and valuable ability of this Court to decide a case—we are,
       at present, the only Art. III court which can decide a federal question in such a way as to
       bind all other courts—is a sufficient reason either to abandon the doctrine of mootness
       altogether in cases which this Court has decided to review, or at least to relax the doctrine
       of mootness in such a manner as the dissent accuses the majority of doing here. I would
       leave the mootness doctrine as established by our cases in full force and effect when
       applied to the earlier stages of a lawsuit, but I believe that once this Court has undertaken
       a consideration of a case, an exception to that principle is just as much warranted as
       where a case is 'capable of repetition, yet evading review.'" 484 U.S. at 331-32.


       Both the history of the mootness doctrine in Kansas, with the law developing on a
prudential basis independent of federal analysis, and the problem of exceptions to the
jurisdictional basis that inheres in the federal constitutional reasoning, lead us to conclude
that the better approach is to consider mootness a prudential doctrine. Kansas recognizes
an exception, for example, for cases that are otherwise moot but that raise issues that are
capable of repetition and present concerns of public importance. See, e.g., State v.
Kinder, 307 Kan. 237, 244, 408 P.3d 114 (2018). If mootness were jurisdictional, we
could not have such court-created exceptions. See State v. Montgomery, 295 Kan. 837,
841, 286 P.3d 866 (2012); Operation Save America v. City of Jackson, 275 P.3d 438, 449
(Wyo. 2012) ("Our mootness exceptions illustrate that Wyoming's mootness doctrine,
like that of many other state, is prudential rather than constitutionally based. [Citation
omitted.]").


       B. Standard of Review


       This brings us to our standard of review, which is de novo and is predicated on
prudential considerations. As we held in Hilton,


               "Generally, Kansas appellate courts do not decide moot questions or render
       advisory opinions. [Citation omitted.]That doctrine, however, is not a question of
                                                    13
       jurisdiction. Rather, this court has previously described the mootness doctrine as a court
       policy, which recognizes that the role of a court is to "'determine real controversies
       relative to the legal rights of persons and properties which are actually involved in the
       particular case properly brought before it and to adjudicate those rights in such manner
       that the determination will be operative, final, and conclusive."' State v. Bennett, 288
       Kan. 86, 89, 200 P.3d 455 (2009) (quoting Board of Johnson County Comm'rs v. Duffy,
       259 Kan. 500, 504, 912 P.2d 716 [1996]).


           "A court policy necessarily comes about through prior opinions of the court, i.e., the
       mootness doctrine developed through court precedent. Accordingly, our review is
       unlimited. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) ('To the extent our
       decision involves ... the interpretation and application of ... court precedent, we are
       resolving questions of law and, thus, exercising unlimited review. Johnson v. Brooks
       Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 [2006].')." 295 Kan. at 849.


       C. Courts Must Exercise Caution When Applying the Mootness Doctrine


       When presented with cases that involve tenuous or peripheral rights or remedies, it
may be tempting to exercise prudential considerations and dismiss those cases in the
interest of judicial economy. While such a course can be a proper application of judicial
discretion, it must be exercised with caution and only upon due consideration of the wide
variety of interests a party asserts.


       Litigants must have some effective means to vindicate injuries suffered to their
rights without being shut out of court. See Christopher v. Harbury, 536 U.S. 403, 415,
122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). In other words, individuals are entitled to their
"day in court." See In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948);
Terrell v. Allison, 88 U.S. (21 Wall.) 289, 292, 22 L. Ed. 634 (1874); Jackson v. City of
Bloomfield, 731 F.2d 652, 65 (10th Cir. 1984). The expeditious disposition of cases does


                                                    14
not supersede "'one's fundamental right to his full day in court.'" Frito-Lay, Inc. v.
Morton Foods, Inc., 316 F.2d 298, 300 (10th Cir. 1963).


       This court has expressly recognized that a party has "the right to a day in court."
See In re Massey, 56 Kan. 120, 122, 42 P. 365 (1895). This right is considered
fundamental and expansive in its reach:


           "The constitutional guarantee of providing for open courts and insuring a civil
       remedy for injuries to persons and property is a statement of our philosophy and a general
       rule which can be used to solve civil conflicts. This right is generally regarded as one of
       the most sacred and essential constitutional guarantees. However, the guarantee creates
       no new rights but merely is declaratory of our fundamental principles. In light of this
       guarantee, it is the policy and the obligation of the state to furnish and of the courts to
       give every litigant his day in court and a full and ample opportunity to be heard. This
       right extends to everyone who may be materially affected by the action of the court in a
       legal proceeding. . . . It insures the right of every person protected by it to seek remedy
       by court action for any injuries done to him or his personal property. . . . A litigant is
       assured the right to prosecute or defend an action, provided he prosecutes or defends the
       action as contemplated by law. Since a prisoner can sue or be sued in this state he must
       be afforded the right to his day in court." (Emphasis added.) State ex rel. Stephan v.
       O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984).


       This right to litigate actual injuries has led our United States Supreme Court to
presume the existence of continuing injuries or collateral consequences when defendants
seek to continue their appeals from their convictions even though their sentences have
expired. See United States v. Juvenile Male, 564 U.S. 932, 936, 131 S. Ct. 2860, 180 L.
Ed. 2d 811 (2011); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556, 20 L. Ed.
2d 554 (1968) (collateral consequences include engaging in certain businesses, serving as
labor union officials, voting, serving as jurors).


                                                     15
       Such a presumption does not apply when a defendant seeks review only over an
expired sentence. See Spencer v. Kemna, 523 U.S. 1, 7-14, 118 S. Ct. 978, 140 L. Ed. 2d
43 (1998); Lane v. Williams, 455 U.S. 624, 632-33, 102 S. Ct. 1322, 71 L. Ed. 2d 508
(1982). Even in such cases, however, the appeal is not necessarily moot. The possibility
of consequences collateral to the imposition of the sentence may suffice to justify review
on the merits. See Pollard v. United States, 352 U.S. 354, 358, 77 S. Ct. 481, 1 L. Ed. 2d
393 (1957).


       A mere surmise or belief that a party cannot prevail upon trial will not justify
refusing that party a day in court. The court must decide as a matter of law that a party
cannot prevail before denying that party its day in court. See Beck v. Kansas Adult
Authority, 241 Kan. 13, 25, 735 P.2d 222 (1987).


       For these reasons, we conclude that a "bright line" test, such as one that renders a
sentencing appeal necessarily moot if the sentence is completed, is contrary to the law of
our state. In Montgomery, 295 Kan. 837, Syl. ¶¶ 3, 4, we held that an appeal is moot only
if judgment would be "ineffectual for any purpose"; a case is not moot if "it may have
adverse legal consequences in the future." (Emphasis added.) An appeal should not be
dismissed for mootness "unless it is clearly and convincingly shown the actual
controversy has ended, the only judgment that could be entered would be ineffectual for
any purpose, and it would not impact any of the parties' rights." (Emphasis added.)
Wiechman v. Huddleston, 304 Kan. 80, 84, 370 P.3d 1194 (2016).


       A determination of mootness must therefore necessarily include analysis of
whether an appellate judgment on the merits would have meaningful consequences for
any purpose, including future implications. We must now decide whether Roat has met
his burden of demonstrating the existence of a meaningful interest that would be impaired
by dismissal.
                                             16
         D. The Court of Appeals Failed to Engage in Necessary Analysis of Mootness


         As we have seen, before a court may dismiss a case as moot, it must conclude that
the requested relief would not have an impact on the appellant's rights. See State v.
Williams, 298 Kan. 1075, 1082-83, 319 P.3d 528 (2014).


         The party asserting mootness generally bears the initial burden of establishing that
a case is moot in the first instance. See, e.g., Cierco v. Lew, 190 F. Supp. 3d 16, 23 (D.C.
Cir. 2016). 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. See, e.g. Honeywell
Intern., Inc. v. Nuclear Regulatory Com'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (passage
of relevant time period may render case moot). The burden then shifts to the party
opposing the mootness challenge to show the existence of a substantial interest that
would be impaired by dismissal or that an exception to the mootness doctrine applies.
See, e.g., Cierco, 190 F. Supp. 3d at 23.


         Here, the State has shown that Roat has fully completed his sentence, which
suffices to establish a prima facie showing of mootness. In her response to the Court of
Appeals order to show cause, Roat's appellate counsel asserted that "a judgment in this
case is necessary to determine whether Mr. Roat may pursue a legal malpractice claim
against his trial attorney." The response then pointed to Garcia v. Ball, 303 Kan. 560,
573, 363 P.3d 399 (2015), for the proposition that an appellate court would have to rule
that Roat's sentence was illegal before he would be able to prosecute his malpractice
claim.


         The Court of Appeals dismissed Roat's appeal under the mootness doctrine,
holding that the expiration of Roat's sentence meant that the outcome of this appeal
                                              17
would have "no effect on his sentence in this case." This was an erroneous measure of
when a case is moot. In its brief discussion, the Court of Appeals cited to Montgomery,
295 Kan. 837. Montgomery did not state, however, that an appeal becomes moot when
the outcome would have no effect on the case at hand. Montgomery repeated the well-
established principle that "[a]n appeal will not be dismissed as moot unless it clearly and
convincingly appears that the actual controversy has ceased and the only judgment which
could be entered would be ineffectual for any purpose." (Emphasis added.) 295 Kan. 837,
Syl. ¶ 3. See State v. Russ, 309 Kan. 1240, 443 P.3d 1060 (2019); Mundy v. State, 307
Kan. 280, 289, 408 P.3d 965 (2018); Reeves v. Board of Johnson County Comm'rs, 226
Kan. 397, 405, 602 P.2d 93 (1979); Moore v. Smith, 160 Kan. 167, 175, 160 P.2d 675
(1945). The range of collateral interests that may preserve an appeal is wide. See, e.g.,
State v. McCraw, 551 S.W.2d 692 (Tenn. 1977), where the Tennessee Supreme Court
held that, for purposes of post-conviction relief, the status of being "in custody" for
mootness considerations includes any possibility of restraint on liberty, including a bar
from voting in another state.


       In addition to failing to apply Montgomery's well established principle, the Court
of Appeals made no reference to Roat's asserted collateral rights and also appears to have
completely ignored his arguments. This summary dismissal, without further analysis, was
erroneous.


       The preservation of rights for future litigation is an interest that may preserve an
appeal from dismissal based on mootness. In Moore, 160 Kan. 167, the court applied the
principle of interest in future litigation to the issue before it to find that the appeal was
not moot. The Governor had appointed Moore to fill a vacant sheriff's position in July
1943 after the sheriff was ousted from office. In the 1944 election, Moore was elected to
serve the regular two-year term, which was set to begin January 1945. Also in that
election, Smith, the defendant, was elected to serve the remainder of the ousted sheriff's
                                               18
term. Moore filed suit, seeking to enjoin the county commissioners from certifying Smith
as the sheriff. The district court granted the motion and imposed a permanent injunction.
By the time the case was appealed to this court, Moore's elected term had started.
Consequently, Moore argued the case should be dismissed as moot. This court disagreed.
It observed that, even though Smith could no longer serve the remainder of the ousted
sheriff's term, he might still be entitled to damages or to the salary from that time. It
reasoned that this case was not moot because, if Smith brought an action to collect salary
or damages, the issue of whether he had a rightful claim to the position could be res
judicata. Moore, 160 Kan. at 175-76.


       We accordingly conclude that 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. For this reason, a prisoner asserting a right to sue trial counsel for
malpractice may have a substantive interest in avoiding res judicata with respect to the
validity of the expired sentence.


       We have held a convicted 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). In Canaan, the court held that a person convicted in a
criminal action must obtain postconviction relief before maintaining an action alleging
malpractice against his or her criminal defense attorneys. 276 Kan. 116, Syl. ¶ 2.


       In Mashaney v. Board of Indigents' Defense Services, 302 Kan. 625, 632, 355 P.3d
667 (2015), this court held that a criminal defendant does not have to prove actual
innocence in order to bring a legal malpractice claim against his or her criminal defense
attorney. But the defendant must erase criminal liability by vacation or reversal of a
conviction, regardless of whether the vacation or reversal is compelled by a successful
assertion of actual innocence. And, in Garcia, 303 Kan. 560, Syl. ¶¶ 4, 5, this court held
                                              19
that a motion to correct an illegal sentence is the proper means of establishing that a
sentence was erroneous for purposes of pursuing a subsequent legal malpractice claim.


       This court has long designated bringing a suit for negligence to be a "right." See
e.g., Apodaca v. Willmore, 306 Kan. 103, 392 P.3d 529 (2017); Vorhees v. Baltazar, 283
Kan. 389, 153 P.3d 1227 (2007); O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964);
Vaughn v. Kansas City N.W.R. Co., 65 Kan. 685, 70 P. 602 (1902). Dismissing Roat's
appeal, therefore, creates a bar to the exercise of his right to sue his attorney for damages.
For that reason, he clearly states a right or interest that is affected by the dismissal of this
appeal for mootness. Unfortunately, the Court of Appeals did not acknowledge, or even
mention, this right that Roat asserted. We cannot know whether the Court of Appeals
considered the malpractice claim or what effect that consideration may have had on its
decision to dismiss.


       E. The Mootness Doctrine as Applied to This Appeal


       Carrying out de novo review, we must decide whether Roat has asserted an
interest sufficient to prevent dismissal for mootness.


       In his response to the show cause order from the Court of Appeals, Roat stated:


               "[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.]"




                                                    20
       Roat's circumstances changed between the time that he docketed his appeal and
the time it was ready for hearing, i.e., he completed the terms of his sentence. When, by
reason of changed circumstances between commencement of an action and judgment on
that action, a judgment would be unavailing as to the issue presented, the case is moot.
Huber v. Schmidt, 180 Kan. 80, 82, 299 P.2d 33 (1956). Changed circumstances will not
lead to dismissal of an appeal, however, if leaving a judgment intact will affect vital
rights of the parties. Carr v. Diamond, 192 Kan. 336, 337, 388 P.2d 589 (1964).


       Accordingly, we must evaluate whether Roat's interest in a malpractice suit is a
vital, or substantial, right requiring a judgment in this appeal. We conclude that he has
failed to demonstrate such a right.


       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. Failure to brief an analytic framework
sufficiently for effective appellate review is tantamount to not raising the issue at all. See
State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013); State v. Easterling, 289 Kan.
470, 487, 213 P.3d 418 (2009). A party should not leave the court "to guess about the
specifics of how [a party] would frame his arguments . . . ." State v. Berriozabal, 291
Kan. 568, 594, 243 P.3d 352 (2010).


                                              21
       We are reluctant to try to put flesh onto the skeleton of a hypothetical legal
malpractice claim that Roat suggests creates an interest sufficient to defeat mootness. It
may be that he would argue that his attorney should have made the arguments that
appellate counsel successfully made in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015). If Roat's trial attorney had successfully made those arguments, then, the
reasoning might be, he would have spent less time incarcerated.


       Although Roat did not object to the scoring of his criminal history prior to
sentencing, the failure to object to a criminal history score does not preclude a defendant
from appealing the legal effect of prior convictions upon the calculation of his or her
criminal history score. See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015);
Dickey, 301 Kan.1018, Syl. ¶¶ 3-4.


       But there is a difference between correcting an illegal sentence based on newly
articulated law and pursuing a legal malpractice action based on newly articulated law.
Roat was sentenced in April 2012. The Court of Appeals issued its opinion in State v.
Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230, on June 27, 2014. Roat would have to
allege malfeasance by his trial counsel for not urging the adoption of a new law.


       Research does not reveal any Kansas cases allowing legal malpractice claims
based on failure to make arguments that represent a change in law. Other states and legal
treatises have taken the position that failing to make an argument that later proved to be
good law is not grounds for malpractice.


       In Minkina v. Frankl, 86 Mass. App. Ct. 282, 289, 16 N.E.3d 492 (2014), the court
held that it is not legal malpractice to fail to advocate for or anticipate a substantial
change in law requiring the overruling of a controlling precedent. The court cited Davis v.
Damrell, 119 Cal. App. 3d 883, 888, 174 Cal. Rptr. 257 (1981) (failure to anticipate "'180
                                               22
degrees shift in law' cannot serve as the basis for professional negligence" [citation
omitted]); Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152, 1153 (Fla. Dist. Ct. App.
1987) ("[A]n attorney's failure to accurately predict changes on an unsettled point of law
is not actionable"); Howard v. Sweeney, 27 Ohio App. 3d 41, 43-44, 499 N.E.2d 383
(1985) ("Counsel's failure to predict a subsequent change in a settled point of law cannot
serve as a foundation for professional negligence."); 4 Mallen , Legal Malpractice § 33.5
(2020) ("The rule is that an attorney is not liable for an error in judgment concerning a
proposition of law that is debatable, uncertain, unsettled, or tactical.").


       We determine that this is the proper rule. Otherwise, lawyers and their insurance
carriers will find themselves in a perpetual guessing game, wondering what new
statement of law they must argue in order to avoid liability. The issue would become
even more confused with issues in which the courts do not take a direct line to a
conclusion, as has been the case with Murdock and Keel.


       We, therefore, conclude that Roat has failed to present the appellate courts with an
adequate theory of his malpractice action to justify an appellate determination of the
correctness of the sentence that he has fully served. His hypothetical malpractice is more
"hope" than substance. See Christopher, 536 U.S. at 416. His claim does not preclude
application of the mootness doctrine.


       Roat also stated, at oral argument, that he has an abstract "right to a correct
sentence." This is an insufficiently substantial right to warrant further appellate review.
The duty of the courts is to decide actual controversies by a judgment that can be given
an effect and not to give opinions on abstract propositions. Burnett v. Doyen, 220 Kan.
400, 403, 552 P.2d 928 (1976). Having an abstract interest in the outcome of litigation
does not prevent an issue from becoming moot. Andeel v. Woods, 174 Kan. 556, 558, 258
P.2d 285 (1953); Moore, 160 Kan. at 170.
                                              23
       Mere stigma or "rightness" is insufficient to justify continuing to exercise
jurisdiction over an appeal. In St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87
L. Ed. 1199 (1943), one of the first cases to recognize collateral consequences of
conviction as a basis for avoiding mootness, the Supreme Court refused to review St.
Pierre's challenge to a contempt citation after he had completed his five-month sentence,
because "petitioner [has not] shown that under either state or federal law further penalties
or disabilities can be imposed on him as a result of the judgment which has now been
satisfied." 319 U.S. at 43. The Court rejected St. Pierre's argument that the possibility that
"the judgment [could] impair his credibility as [a] witness in any future legal proceeding"
was such a penalty or disability, because "the moral stigma of a judgment which no
longer affects legal rights does not present a case or controversy for appellate review."
319 U.S. at 43.


       Roat makes a closely related argument that the length of his sentence and his
criminal history in the present case might have an impact on a future court's sentencing
decision.


       It is not clear what Roat means when he alleges that a future sentencing court
might "take judicial notice of the journal entries in the underlying cases." Presumably, he
means that a court might accept the criminal history score as listed in the journal entry of
judgment without entertaining any challenge to that score by the defendant. This seems to
be what the Court of Appeals panel in State v. Lamunyon, 21 Kan. App. 2d 281, 898 P.2d
1182 (1995), aff'd 259 Kan. 54, 911 P.2d 151 (1996), envisioned when it held that the
case was not moot because a future "sentencing court might take judicial notice of the
journal entry in this case, which states that [the defendant's] criminal history category is
D." Lamunyon, 21 Kan. App. 2d at 286.




                                             24
       But neither the Lamunyon panel nor Roat explains where a sentencing court would
derive the authority to do this. The statutes that govern criminal history determinations—
K.S.A. 2018 Supp. 21-6813 and K.S.A. 2018 Supp. 21-6814—preclude a court from
taking such action.


       This court discussed the interplay between the language of these statutes in State v.
Schow, 287 Kan. 529, 539, 197 P.3d 825 (2008). In that case, the defendant objected to
the criminal history reflected in his PSI, which included two convictions out of Florida
that had been listed on an earlier 1997 PSI from a Johnson County case. The district court
ruled that the State met its burden to prove the defendant's criminal history when it
presented the 1997 PSI and shifted the burden to the defendant to show that the prior
criminal history schedule was incorrect.


       We ultimately held:


       "[A] defendant may file a written objection to his or her criminal history worksheet,
       including those convictions which may have been contained in a previous criminal
       history worksheet, and such an objection places the burden on the State to produce
       further evidence establishing the existence of the challenged conviction(s) by a
       preponderance of the evidence." Schow, 287 Kan. at 539-40.


       A court can therefore accept the criminal history worksheet in the PSI as evidence
of the defendant's criminal history. And, it can take judicial notice of that worksheet even
if the person who prepared it is unavailable as a witness. But the defendant is entitled to
challenge that criminal history worksheet, and the State is then required to prove the
accuracy of the history by a preponderance of the evidence. This prevents a district court
from relying solely on previous criminal history scores to calculate a sentence over a
defendant's objection.


                                                   25
       The Schow court also rejected the idea that the State could have "asserted
collateral estoppel to avoid relitigating the existence of a prior conviction." 287 Kan. at
540. It pointed out that "an essential element of collateral estoppel is that the issue had
been decided on its merits in the prior proceeding." 287 Kan. at 540. For that reason, if
there was no prior judgment on the merits of the criminal history challenge, collateral
estoppel is inapplicable. The State could only "rely upon collateral estoppel to avoid
repeatedly litigating the efficacy of the same prior convictions in successive sentencing
hearings." 287 Kan. at 540.


       This discussion reveals that a dismissal in this case will not have the effect Roat
asserts; it will not cause a future sentencing court to rely on only an earlier journal entry
of sentencing to establish his criminal history. It will require Roat to object to a previous
calculation of criminal history in future cases. But this future hypothetical requirement—
objecting to a criminal history score—does not create a justiciable controversy.


       The United States Supreme Court rejected such speculative interests in Lane, 455
U.S. 624, where the petitioners' sentences expired during the course of habeas corpus
proceedings and the petitioners were attacking only their sentences. The Court noted:


       "At most, certain non-statutory consequences may occur; employment prospects, or the
       sentence imposed in a future criminal proceeding, could be affected. [Citation omitted.]
       The discretionary decisions that are made by an employer or a sentencing judge,
       however, are not governed by the mere presence or absence of a recorded violation of
       parole; these decisions may take into consideration, and are more directly influenced by,
       the underlying conduct that formed the basis for the parole violation." Lane, 455 U.S. at
       632-33.


       We conclude that Roat has failed to argue collateral interests with sufficient
specificity and has failed to demonstrate that such interests have substance and are
                                                  26
protectable at law. His asserted interests, as they have been articulated, do not preclude
dismissal for mootness. Although the Court of Appeals seems to have adopted an
incorrect legal standard in its perfunctory order, it arrived at the correct conclusion: this
appeal is moot. We accordingly dismiss the appeal.


       In so doing, however, we note an obligation that rests on both litigants and the
courts. Litigants must do more than mention speculative rights; they must give substance
to their arguments when asserting that protection of collateral rights necessitates
resolution of their underlying appellate issues. And appellate courts must analyze and
evaluate those arguments before exercising the prudential authority to dismiss appeals
because of mootness. We trust that these directives will be informative in future cases in
which courts confront the question of mootness.


       We further note that the statute governing correction of illegal sentences, K.S.A.
22-3504 has been amended during the pendency of this appeal. The statute now reads:
"(a) The court may correct an illegal sentence at any time while the defendant is serving
such sentence." (Emphasis added.) A new section K.S.A. 2019 Supp. 22-3504(d) reads:
"The amendments made to this section by this act are procedural in nature and shall be
construed and applied retroactively." L. 2019, ch. 59, § 15.


       This amendment relates to statutory authority to file a motion to correct an illegal
sentence; it does not directly invoke or demonstrate mootness of motions that were filed
before the amendment. Even if the amendment applies retroactively, it applies only to
situations in which the defendant has not yet filed a motion before the operative date of
the amendment. K.S.A. 2019 Supp. 60-2102(a) provides for appeals to the Court of
Appeals as a matter of right from a final decision in any action except when a direct
appeal to the Supreme Court is required. In the present case, Roat properly filed his


                                              27
motion while he was serving his sentence, the district court entered a final order denying
his motion, and he had a vested right to appeal an adverse ruling on that motion.


       The judgment of the Court of Appeals is affirmed, subject to the reservations
noted above.


       LUCKERT, J., not participating.1
       JOHNSON, J., not participating.2
       MICHAEL J. MALONE, Senior Judge, assigned.




1
  REPORTER'S NOTE: Senior Judge Michael J. Malone was appointed to hear
case No. 113,531 vice Justice Marla J. Luckert under the authority vested in the
Supreme Court by K.S.A. 20-2616.
2
  REPORTER'S NOTE: Justice Lee A. Johnson heard oral arguments but did not
participate in the final decision in case No. 113,531. Justice Johnson retired effective
September 6, 2019.


                                          * * *
                                           28
       BILES, J., concurring: I concur in the result based on the rationale expressed in
State v. Tracy, 311 Kan. __, __ P.3d __ (No. 113,763, this day decided).


                                           ***


       STEGALL, J., concurring: I join Justice Biles' concurrence. I write to note my
disagreement with portions of the majority opinion. Specifically, the majority opinion
appears to abandon or at least weaken the constitutional requirement that Kansas courts
decide only cases and controversies. State ex rel. Morrison v. Sebelius, 285 Kan. 875,
896, 179 P.3d 366 (2008) ("Kansas courts have repeatedly recognized that the 'judicial
power'" granted by Article 3, §1 of the Kansas Constitution "is the 'power to hear,
consider and determine controversies between rival litigants.'"). Until now, it has been
axiomatic that we do not render advisory opinions—indeed, we are not constitutionally
empowered to do so. State v. Cheever, 306 Kan. 760, 786, 402 P.3d 1126 (2017)
("Because the Kansas Constitution's framework 'limit[s] the judicial power to actual cases
and controversies,' Kansas courts do not have the power to give advisory opinions."),
abrogated on other grounds by State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019).


       But in its lengthy discussion of the mootness doctrine and whether it presents a
jurisdictional bar, the majority summarizes—with approval—Chief Justice Rehnquist's
view that "federal courts rely on the 'case or controversy' requirement [to dismiss cases as
moot]—except when they don't." Slip op. at 11. Chief Justice Rehnquist did seem to be
suggesting, in a concurring opinion, that the federal mootness doctrine was premised on
the "case or controversy requirement of Art. III" but that such considerations could "be
overridden where there are strong reasons to override it." Honig v. Doe, 484 U.S. 305,
331, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) (Rehnquist, C.J., concurring). An invitation
                                            29
the majority accepts by concluding that we can therefore decide "otherwise moot" cases
that "raise issues that are capable of repetition and present concerns of public importance"
because mootness is a "prudential" doctrine. Slip op. at 13.


         How are judges and litigants to understand the significance of an "otherwise moot"
case other than one in which the case or controversy has ended? I cannot escape the
logical conclusion that if a case or controversy has not ended, the case could never be
otherwise moot. It seems, then, that today we make explicit in law what may have in the
past been an unfortunate accident—that we will issue advisory opinions when we want
to. I cannot agree with this practice.


         When a case or controversy has ended, our jurisdiction ends. The majority
genuflects to this constitutional limit on our authority while dodging it. Though not
argued in this case, I suggest standing (rather than mootness) is the better legal doctrine
for future courts to focus upon. If a case is "otherwise moot" because the case or
controversy has ended, would a litigant have standing to pursue an issue just because it is
capable of repetition and presents a matter of public importance? This, and other related
questions will have to wait for another case in which the litigants raise and argue the
point.




                                             30
