State v. Tracy, 466 P.3d 434

In 2013 Richard A. Tracy pled guilty to methamphetamine possession (severity level 5). The district court assigned him a criminal history score of B based in part on a 1974 Colorado second-degree burglary and a 1982 Kansas burglary, both treated as person felonies. Tracy did not object at sentencing.
The court imposed a 36-month underlying sentence but granted a downward dispositional departure to 12 months’ probation; probation was later revoked and the underlying sentence ordered executed.
Tracy filed a post‑sentencing motion (not in record) challenging classification of his prior convictions; the district court denied relief, citing Murdock (not retroactive) and waiver for failure to object at original sentencing.
On appeal the Court of Appeals held the 1982 Kansas burglary should be nonperson (Dickey I) but sustained the Colorado conviction as a person felony. Tracy sought further review; the State also sought review on related points.
By the time this Court considered Tracy’s petition, he had fully served his prison term and postrelease supervision. The State moved to dismiss the appeal as moot; Tracy argued the panel opinion could hurt future proceedings and impede any legal malpractice claim.

Issue	Tracy's Argument	State's Argument	Held
Mootness of appeal after Tracy completed sentence	Appeal not moot because Court of Appeals' unpublished holding could bind future sentencing courts; he may need relief to pursue malpractice; issue capable of repetition	Case is moot—Tracy served sentence and any future sentencing court would apply current law; no present controversy	Appeal dismissed as moot; Court declined to reach merits
Proper classification of 1974 Colorado burglary as person vs nonperson felony	Classification required impermissible judicial fact‑finding under Apprendi/Descamps; Colorado intent element differed from Kansas	Colorado conviction was comparable and properly classified; Dickey I analysis did not control intent comparison	Not reached by this Court (CO classification had been upheld by Court of Appeals; Supreme Court dismissed appeal as moot)
Need for relief to pursue legal malpractice claim	Without postsentencing relief he cannot sue prior counsel (per Garcia)	Speculative and inadequately supported; Tracy fails to identify what malpractice claim would allege; argument waived	Court rejects the malpractice accrual contention as insufficient and dismisses the appeal as moot

Apprendi v. New Jersey, 530 U.S. 466 (judicial fact‑finding increasing punishment violates Sixth Amendment)
Descamps v. United States, 570 U.S. 254 (limits permissible judicial fact‑finding when comparing statutes for sentence enhancements)
State v. Murdock, 299 Kan. 312 (addressed treatment of out‑of‑state crimes predating KSGA)
State v. Keel, 302 Kan. 560 (overruled Murdock)
State v. Dickey, 301 Kan. 1018 (Dickey I) (comparability analysis for prior Kansas convictions)
State v. Moore, 307 Kan. 599 (elements must be identical or narrower for out‑of‑state comparability)
State v. Buell, 307 Kan. 604 (same rule for out‑of‑state comparability)
State v. Wetrich, 307 Kan. 552 (further refinement of comparability analysis)
State v. Obregon, 309 Kan. 1267 (classification of prior convictions is typically a question of law)
Garcia v. Ball, 303 Kan. 560 (postsentencing relief required before malpractice claim for sentencing advice accrues)