State v. Raiburn, 95,908.

• Decision Date: 24 July 2009
• Docket Number: No. 95,908.,95,908.
• Citation: 212 P.3d 1029
• Parties: STATE of Kansas, Appellee, v. Steven L. RAIBURN, Appellant.
• Court: Kansas Supreme Court

212 P.3d 1029

STATE of Kansas, Appellee, v. Steven L. RAIBURN, Appellant.

No. 95,908.

Supreme Court of Kansas.

July 24, 2009.

[212 P.3d 1031]

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Marla Foster Ware, county attorney, argued the cause, and Paul J. Morrison, former attorney general, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by ROSEN, J.:

The fugitive disentitlement doctrine generally holds that the appeal of a criminal defendant who has absconded from the jurisdiction of the courts should be dismissed. This case requires us to decide whether the fugitive disentitlement doctrine is alive in Kansas and, if so, whether it is applicable when the record shows only that the State has alleged the defendant failed to report to his or her probation officer.

Steven L. Raiburn was convicted of one count of felony possession of marijuana. He was sentenced to a term of 20 months' imprisonment, with his prison term suspended and the imposition of 18 months' probation. He timely appealed. Shortly thereafter, the State filed a motion in the district court to revoke Raiburn's probation, alleging failure to report to his probation officer.

On appeal to the Court of Appeals, Raiburn raised two issues concerning his conviction. The State raised an additional issue—whether Raiburn had abandoned his right to appeal by absconding. The Court of Appeals issued a show cause order directing Raiburn to demonstrate that he had submitted to the jurisdiction of the Kansas district court by May 11, 2007, or the appeal would be dismissed with prejudice. Raiburn filed a response addressing several reasons why the appeal should not be dismissed but did not directly address his whereabouts. The Court of Appeals ordered the parties to file supplemental briefs addressing the absconder issue.

Ultimately, the Court of Appeals elected to dismiss the appeal. State v. Raiburn, 38 Kan.App.2d 703, 171 P.3d 654 (2007). This court granted Raiburn's petition for review. On August 7, 2008, this court issued an order directing the parties to address at oral argument the question of Raiburn's fugitive status and specifically whether Raiburn has submitted to the jurisdiction of the district court. At oral argument, the State indicated that the bench warrant for Raiburn was still outstanding. Counsel for Raiburn appropriately declined to answer questions regarding his client's whereabouts.

A Brief History Of The Fugitive Disentitlement Doctrine

For over 100 years, Kansas courts have followed a loosely formulated rule, variously known as the fugitive disentitlement doctrine, the fugitive dismissal rule, or the escape rule, which allows courts to dismiss an appeal when a criminal defendant escapes during the pendency of the appeal. See State v. Scott, 70 Kan. 692, 79 P. 126 (1905). The law in Kansas is not as fully developed as it is in other states. Kansas has no statute or rule mandating, or directly authorizing, application of the fugitive disentitlement doctrine, see Supreme Court Rule 5.05 (2008 Kan. Ct. R. Annot. 35) (appellate court may dismiss for any other reason the law requires), and invocation of the doctrine by the appellate courts has been relatively rare. The doctrine is well established, however, in many different variations, in other jurisdictions.

Perhaps the first instance of the United States Supreme Court invoking the doctrine was in 1876, when the Court held that it was within its authority to "refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." Smith v. United States, 94 U.S. (4 Otto) 97, 97, 24 L.Ed. 32 (1876). In Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), the Supreme Court reaffirmed its support of the doctrine, stating: "No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction." In 1993, the Supreme Court again revisited the issue: "It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal." Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).

The Supreme Court has not only applied the fugitive disentitlement doctrine to appeals pending before that Court, it has upheld the right of states to implement the doctrine statutorily as well as through case law in state courts. In Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), the defendant escaped from jail after filing his appeal and was recaptured 2 days after the escape. After his recapture, the Texas Court of Criminal Appeals dismissed his case pursuant to Texas Code of Criminal Procedure Annotated, Article 44.09 (1966), which provided for automatic dismissal of an appeal when the defendant escaped during the pendency of the appeal unless the defendant returned voluntarily within 10 days. The United States Supreme Court upheld the constitutionality of the statute, stating: "Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law. [Citation omitted.] This Court itself has long followed the practice of declining to review the convictions of escaped criminal defendants. [Citations omitted.]" 420 U.S. at 537, 95 S.Ct. 1173.

The vast majority of states that have not codified the fugitive dismissal rule have judicially adopted it. See, e.g., Young v. State, 518 So.2d 822, 824 (Ala.Crim.App.1987), cert. denied 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988) ("For over a century, Alabama appellate courts have exercised the discretion to summarily dismiss the appeals of those who have escaped custody while their appeals are pending."); State v. Dyer, 551 N.W.2d 320, 320-21 (Iowa 1996) (exercising "inherent power" to dismiss appeal because of fugitive status despite there being no statute or rule authorizing dismissal on such grounds); State v. Bell, 608 N.W.2d 232, 233-36 (N.D.2000) (defendant precluded from continuing appeal because he forfeited and abandoned appeal by escaping); State v. Lamontae D.M., 223 Wis.2d 503, 507-10, 589 N.W.2d 415 (Wis.App.1998) (applying escape rule to juvenile absconder and dismissing appeal).

There are, however, jurisdictions that do not subscribe to the fugitive disentitlement doctrine. Prior to 1967, Louisiana had statutory authority mandating dismissals where the appellant was a fugitive from justice. See State v. Jugger, 217 La. 687, 694, 47 So.2d 46 (1950). The statute was removed from the revised version of the Louisiana Code of Criminal Procedure that became effective January 1, 1967. See State v. Falcone, 383 So.2d 1243, 1246 (La.1980). The Official Revision Comment to the Louisiana Code of Crim. Proc. Ann., art. 919, p. 70 (West 2008), explains:

"The provision is omitted from this Code, because it is unfair to the defendant. For example, if a man has appealed from a death sentence and he escapes, under [the former statute], the effect is to make the escape a capital offense, since he loses his right to appeal. Furthermore, the more frightened a convicted defendant is, the more likely he is to attempt to escape, and he should not be denied his right to appeal because of such circumstances."

See Falcone, 383 So.2d at 1246-47. While providing a novel justification for repealing the codification of the fugitive disentitlement doctrine, Louisiana is in a distinct minority of states refusing to dismiss appeals in which the appellant is a fugitive from justice.

Kansas first utilized the doctrine in City of Holton v. Mannix, 6 Kan.App. 105, 49 P. 679 (1897). The Court of Appeals ordered that unless an escaped appellant submitted to the jurisdiction of the court within 60 days, the appeal would be dismissed. 6 Kan.App. at 106, 49 P. 679. In analyzing the propriety of retaining the appeal, the court stated: "If this court should affirm the judgment, he is not likely to appear, and submit to his sentence and if this court should reverse the judgment, and order a new trial, he will appear or not, as he will consider most to his interest." 6 Kan.App. at 106, 49 P. 679. "It is clearly within our discretion to refuse to hear a criminal case on appeal unless the appellant is where he can be made to respond to such judgment as might be rendered." 6 Kan.App. at 106, 49 P. 679.

Less than 10 years later, the Kansas Supreme Court dismissed an appeal under the fugitive disentitlement doctrine. See Scott, 70 Kan. at 693-94, 79 P. 126 (appeal dismissed where defendant violated the conditions of his postconviction bond and failed to appear for a hearing set after notice of appeal had been filed).

In 1978, this court affirmed a trial court's dismissal of an appeal based on a finding that the appeal had been abandoned. Weser v. State, 224 Kan. 272, 274, 579 P.2d 1214 (1978). The defendant had escaped from custody after sentencing, and the trial court granted the State's motion to dismiss the appeal approximately 2 weeks after the escape and after the notice of appeal had been filed. After the defendant's capture and reincarceration, he filed a motion to reinstate his appeal, which the trial court denied. The defendant subsequently filed a K.S.A. 60-1507 motion, which was dismissed by the trial court on a motion by the State that argued the defendant failed to allege grounds showing exceptional circumstances for failing to perfect his direct appeal. On review of the dismissal, this court found that because the appellant's attorney made no attempt to assure the appellant's appearance and the appellant voluntarily remained at large until captured and reincarcerated, the...