Commonwealth v. Hess
| Decision Date | 17 June 2021 |
| Docket Number | 2019-SC-0130-DG |
| Citation | 628 S.W.3d 56 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | COMMONWEALTH of Kentucky, Appellant v. Erin HESS, Appellee |
COUNSEL FOR APPELLANT: Daniel J. Cameron, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General of Kentucky.
COUNSEL FOR APPELLEE: Adam Meyer, Assistant Public Advocate.
The Fugitive Disentitlement Doctrine (FDD) recognizes the principle that when a criminal defendant absconds and remains a fugitive during his or her appellate process, dismissal of the appeal is an appropriate sanction. In this case, the Campbell Circuit Court revoked Erin Hess’ probation, which Hess then appealed. Hess was subsequently paroled but has now absconded from that parole and remains a fugitive. The issue we resolve in this case is whether the Court of Appeals erred in failing to dismiss Erin Hess’ appeal of her probation revocation. We hold that the Court of Appeals erred and therefore reverse its opinion and remand to that court with instruction to dismiss Hess’ appeal.
In January 2015, Hess pled guilty before the Campbell Circuit Court to first-degree possession of a controlled substance, possession of drug paraphernalia, and endangering the welfare of a minor. While taking her plea, the trial court informed Hess of her constitutional right to appeal. She expressly waived that right and did not seek appellate review of her conviction. She was sentenced to serve a total of two years on all charges. The trial court granted Hess probation for three years upon standard terms and conditions.
In August 2016, Hess’ local probation officer filed with the trial court a supervision-violation report and accompanying affidavit. The report and affidavit stated that Hess had, according to her Ohio probation officer, violated multiple terms of her probation and absconded from supervision. The trial court immediately issued an arrest warrant, which was eventually served on Hess.
On September 7, 2016, the trial court held a probation revocation hearing. At the hearing, the trial court found that Hess had violated the terms and conditions of her probation by absconding. However, the court incorrectly ruled that because Hess absconded, it was not required to find, under KRS 1 439.3106, whether her behavior constituted a significant risk to prior victims or the community at large and whether she could be managed in the community. The trial court revoked Hess’ probation, remanding her to the Department of Corrections.
On September 13, 2016, Hess appealed the order revoking her probation. However, two months after her probation revocation, the Department of Corrections granted Hess parole. Five months thereafter, in March 2017, Hess absconded from parole. To date, she has not returned and remains a fugitive.
The Commonwealth asked the Court of Appeals to dismiss the probation revocation appeal under the FDD. The Court of Appeals declined to do so. In its Opinion Vacating and Remanding the trial court's revocation of Hess’ probation, the Court of Appeals correctly pointed out that the trial court erred by not making findings consistent with KRS 439.3106. However, the Court of Appeals went on to find that the FDD did not apply in this case because its application was discretionary; no direct connection existed between Hess’ appeal and her absconsion; and the application of the doctrine would violate Hess’ constitutional right to appeal.
The Commonwealth appealed and discretionary review was granted.
The Commonwealth's appeal is based upon the holding of the Court of Appeals that Hess’ absconsion had no connection to her appeal and subsequent refusal to take judicial notice of her absconsion under KRE 201. The appellate panel reasoned that Hess had a constitutional, not statutory, right to appeal and that application of the FDD would deprive her of that right. We review conclusions of law de novo. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006).
The principle is long-established that when a defendant absconds during the appellate process and remains a fugitive, dismissal of the appeal is an appropriate sanction. Courts in this Commonwealth have applied this doctrine for well over a hundred and forty years. In Wilson v. Commonwealth , 73 Ky. 526, 527 (1875), this Court's predecessor held:
It seems to us clear, both upon principle and authority, that the motion [to dismiss] ought to be sustained. The court ought not to do a nugatory act; yet, if we proceed to try this appeal, the appellant cannot be compelled to submit to our decision if it should be against him, and ought not therefore to be allowed to reap the benefit of a decision in his favor. He might thus be enabled to defeat the ends of justice entirely, for he may be able to keep beyond the reach of the officers until by death or removal of witnesses or other causes his conviction upon a second trial would be rendered improbable, if not impossible. As he has chosen to undertake to relieve himself by flight, in contempt of the authority of the court and of the law, he cannot also invoke the aid of this court.
See also Jackson v. Commonwealth , 247 S.W.2d 52, 53 (Ky. 1952) ; Harris v. Commonwealth , 311 Ky. 429, 224 S.W.2d 427 (1949) ; Crum v. Commonwealth , 232 Ky. 331, 23 S.W.2d 550 (1930) ; Norton v. Commonwealth , 78 Ky. 501, 502 (1880).
As recently as 2013, the Court of Appeals applied the Doctrine in the case of Lemaster v. Commonwealth , 399 S.W.3d 34 (Ky. App. 2013). Lemaster had his probation revoked after never reporting to his probation supervisor. On appeal, Lemaster argued that his due process rights had been violated since the probation hearing had been held in abstention due to his continued fugitive status. Id. at 34. The Court of Appeals dismissed the appeal, quoting Molinaro v. New Jersey , 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) :
No persuasive reason exists why [courts] should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escaped from the restraints placed upon him pursuant to conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.... [W]e conclude ... that the Court has the authority to dismiss the appeal on this ground.
399 S.W.3d at 35. In Lemaster , the court acknowledged the long-standing precedent of applying the FDD by Kentucky courts by noting appeal dismissals based on the fugitive status of the appellants. Id. (citing Harris v. Commonwealth , 311 Ky. 429, 224 S.W.2d 427 (1949) ; Crum v. Commonwealth , 232 Ky. 331, 23 S.W.2d 550 (1930) ).
In this case, the Court of Appeals distinguished Lemaster simply because Hess had been present for the probation revocation hearing and at the initiation of the appeals process. However, the Court of Appeals declined to take judicial notice of the fact that Hess had absconded again, this time while on parole, thus putting her squarely within the FDD as a fugitive while the process of the appeal is ongoing.
The Court of Appeals relied upon Ortega-Rodriguez v. United States , 507 U.S. 234, 244, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), which suggests that application of the FDD requires "some connection between a defendant's fugitive status and the appellate process[.]" However, in Ortega-Rodriguez , the absconding defendant returned and then filed an appeal. The Court ruled against applying the FDD because the return indicated no connection between the absconsion and the appeal. The Court stated that "[a]bsent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during ‘the ongoing appellate process ,’ Estelle [v. Dorrough , 420 U.S. 534, 542, n. 11, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) ], the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply." 507 U.S. at 249, 113 S.Ct. 1199 (emphasis added). In this case, a connection is clearly present. Hess has absconded a second time, subsequent to filing her appeal, and thus is not present to be part of the appeal process. This factual scenario is the exact connection Ortega-Rodriguez indicates is appropriate for applying the FDD. In fact, during oral argument, Hess’ counsel indicated that Hess is waiting to see how this Court rules on her appeal to decide whether to make herself available to the authority of the court and the law. This case's fact pattern is a perfect example of when the FDD should be applied since it is fundamentally offensive that a person who has removed herself from the justice system should potentially reap its benefits should the appellate process decide in her favor. Hess’ actions are exactly what the FDD intended to prevent.
The Court of Appeals also stated that it was not going to apply the FDD because to do so would deprive Hess of her constitutional right to appeal. The Court mistakenly believed Hess still possessed a constitutional right of appeal that would be applicable to this case.
Ky. Const. § 115 confers to a defendant a single, direct appeal as a matter of right. See Hollon v. Commonwealth , 334 S.W.3d 431, 435 (Ky. 2010) (); see also Moore v. Commonwealth , 199 S.W.3d 132, 137 (Ky. 2006) (). Hess was informed of her constitutional right to appeal and expressly waived that right when she pled guilty. Additionally, the trial court informed her of the constitutional right to appeal at her sentencing...
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