Commonwealth of Kentucky v. Erin Hess

• Court: Kentucky Supreme Court
• Decided: August 23, 2021
• Docket: 2019 SC 0130
• Status: Unknown

Opinion

Supreme Court of Kentucky 2019-SC-0130-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS NO. 2016-CA-1500 V. CAMPBELL CIRCUIT COURT NO. 14-CR-00865

ERIN HESS APPELLEE

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

This matter is before the Court on the Appellee’s Petition for Rehearing

and/or Modification of the Opinion of the Court, rendered June 17, 2021. The

Court having reviewed the record and being otherwise fully and sufficiently

advised, hereby ORDERS:

1. The Petition for Rehearing, of the Opinion of the Court, rendered June

17, 2021, filed herein by the Appellee, is DENIED.

2. However, to the extent the Opinion of June 17, 2021, contains a

typographical error on page 9, which does not affect the holding, the

Opinion is MODIFIED on its face by substitution of the attached

Opinion.

All sitting. All concur.

ENTERED: August 26, 2021.

_______________________________________ CHIEF JUSTICE MODIFIED: AUGUST 26, 2021 RENDERED: JUNE 17, 2021 TO BE PUBLISHED

ON REVIEW FROM COURT OF APPEALS V. NO. 2016-CA-1500 CAMPBELL CIRCUIT COURT NO. 14-CR-00865

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING

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. I. BACKGROUND

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 KRS1

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

1 Kentucky Revised Statutes.

2 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.

II. ANALYSIS

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.

3 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.3d 52, 53 (Ky. 1952); Harris v.

Commonwealth, 224 S.W.2d 427 (Ky. 1949); Crum v. Commonwealth, 23

S.W.2d 550 (Ky. 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

4 fugitive status. Id. at 34. The Court of Appeals dismissed the appeal, quoting

Molinaro v. New Jersey, 396 U.S. 365, 366, (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, 2214 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 (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

5 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

(1975)], the justifications advanced for dismissal of fugitives’ pending appeals

generally will not apply.” 507 U.S. at 249 (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)

6 (single appeal as a matter of right); see also Moore v. Commonwealth, 199

S.W.3d 132, 137 (Ky. 2006) (first appeal is a matter of constitutional right).

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 hearing. The principle is well-

established that a defendant may waive his or her constitutional right if done

knowingly and voluntarily. Johnson v. Commonwealth, 354 S.W.3d 141, 143

(Ky App. 2011).

In this case, Hess signed AOC Form 491, a Motion to Enter a Guilty

Plea, which specifically, and in bold letters listed her constitutional rights

including her right to appeal her case to a higher court. Also, in bold letters,

directly under this list, was the notice that if she pled guilty, she was waiving

those rights. Hess declared, in her motion, that her plea of guilty was freely,

knowingly, intelligently and voluntarily made and that her attorney fully

explained her constitutional rights to her. Additionally, in taking the guilty

plea, the trial court conducted a Boykin2 colloquy to ensure Hess’ plea was

made voluntarily, intelligently and with the knowledge she was waiving her

right of appeal. Hess orally and in writing waived her constitutional appeal

under Ky. Const. § 115. See Windsor v. Commonwealth, 250 S.W.3d 306, 307

(Ky. 2008) (explaining that § 115 authorizes a direct appeal, but that an

unconditional guilty plea waives the right with limited exceptions that are not

2 Boykin v. Alabama, 395 U.S. 238 (1968).

7 applicable to this case). With her constitutional right of appeal gone, any

appeal thereafter must be statutorily based.

Finally, Hess and the Commonwealth agree that this Court has

characterized probation hearings as collateral, post-conviction proceedings.

See Jackson v. Commonwealth, 319 S.W.3d 343, 346 (Ky. 2010). The right to

appeal to the Court of Appeals from a collateral, post-conviction circuit court

order is statutory, not constitutional. In Jackson, we noted that “probation

revocation orders do not constitute judgements imposing a sentence as

required by Ky. Const. § 110 (2)(b). Such orders, absent unusual

circumstances not present here, simply cannot provide a basis for a matter of

right appeal[.]” Id. at 346-47.

KRS 22A.020(1) states in relevant part that “[a]n appeal may be taken as

a matter of right to the Court of Appeals from any conviction, final judgment,

order, or decree in any case in Circuit Court.” Hess’ appeal of the trial court’s

order revoking her probation was a statutory right to appeal, not a

constitutional one.

Since Hess’ right to appeal was statutory under KRS 22A.020(1), the

issue of whether the FDD would deprive Hess of a constitutional right is moot.

And while the application of the FDD is discretionary, the Court of Appeals’

denial to apply it in this case is inextricably intertwined with the incorrect

conclusion of law that Hess had a constitutional right to appeal. Accordingly,

this Court shall invoke Kentucky Rule of Evidence (KRE) 201 and take judicial

notice of all governmental documents and public records indicating Hess’

8 absconsion, specifically the parole revocation warrant based upon absconsion

and her counsel’s admission at oral argument that Hess remains a fugitive at

this time.

In absconding, Hess forfeited any statutory right to appeal that she might

have had. This forfeiture applies irrespective of the validity of her underlying

appellate claim. Here, the trial court erred by failing to make the requisite

findings of fact prior to ordering revocation. KRS 439.3106(1)(a). It is

elementary that “[f]indings are a prerequisite to any unfavorable decision and

are a minimal requirement of due process of law.” Rasdon v. Commonwealth,

701 S.W.2d 716, 719 (Ky. App. 1986) citing Gagnon v. Scarpelli, 411 U.S. 778

(1973). See also Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014);

McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015). Because the FDD

applies, we have no means to correct the trial court’s error. That should not,

however, be taken to imply approval of the trial court’s error. Absconsion does

not excuse the trial court from fulfilling its statutory requirements and making

the findings required under KRS 439.3106(1)(a).

Though the trial court made a fact-finding error in its order revoking

Hess’ probation, Hess cannot invoke the rules of the legal system, abscond

from that same system, and expect to be rewarded. Hess disentitled herself

from pursuing her statutory right to appeal a collateral, post-conviction trial

court ruling by absconding during the process of her appeal. The Court of

Appeals erred in in their conclusions of law by granting Hess a constitutional

9 right that did not exist. As a result, they failed to apply the FDD and to dismiss

Hess’ appeal.

III. CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals opinion

vacating the Campbell Circuit Court’s Order revoking Hess’ probation, and

remand to the Court of Appeals with direction to dismiss Hess’ appeal.

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