RENDERED: DECEMBER 19, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0337-DG
JOHN EDWARD ANDERSON APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2021-CA-0692 HICKMAN CIRCUIT COURT NOS. 19-M-00052 & 20-XX-0003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
This case is before us upon discretionary review after the Court of
Appeals concluded the Fugitive Disentitlement Doctrine (FDD) applied to John
Anderson, resulting in the dismissal of his appeal before that court which was,
crucially, also a matter of discretionary review. Another crucial fact is that the
merits panel of the Court of Appeals that dismissed his suit countermanded
the ruling of the motion panel which had granted discretionary review despite
the FDD being put squarely before it. Anderson had surrendered himself to
custody prior to the motion panel granting discretionary review. Thus, this case
requires us to determine whether an Appellant who absconds from custody
prior to seeking discretionary review in the Court of Appeals, can subsequently
surrender himself to the government, thereby insulating a discretionary appeal
from being dismissed based on the FDD. We hold, under the facts of this case, that he may. Therefore, we reverse the Court of Appeals and remand to that
court for consideration of the merits of Anderson’s appeal.
I. Facts
On August 17, 2020, John Anderson was convicted of failing to make a
required disposition of property in the Hickman District Court. He failed to
appear for sentencing. He was sentenced to 180 days in jail, with 60 days to
serve, two years’ probation, and a $208 fine. Anderson was ordered to report to
jail on August 28, 2020. He failed to report. A bench warrant was issued but
recalled after a show cause hearing. Anderson was ordered to report to jail on
September 14, 2020, with a warrant to be effective the following day if he failed
again to report. Anderson failed to report to jail. Anderson’s lawyer timely filed
an appeal to the Hickman Circuit Court. 1 Despite Anderson’s fugitive status,
and no attempt by the Commonwealth to invoke the FDD, the Circuit Court
undertook the appeal and affirmed his conviction on May 18, 2021.
Anderson’s counsel sought a motion for discretionary review before the
Court of Appeals. Anderson remained a fugitive at that time. On September 13,
2021, the Commonwealth filed a response to the motion and urged the Court of
Appeals to apply the FDD and deny discretionary review. Anderson then
surrendered himself to the custody of the Commonwealth. On November 30,
1 To offer as much clarity as possible, this appeal to the Hickman Circuit Court
constituted Anderson’s matter of right of appeal under Ky. Const. § 115. See also KRS 23A.080(1), stating “[a] direct appeal may be taken from District Court to Circuit Court from any final action of the District Court.” Although we ultimately conclude the Court of Appeals erred in misapplying the FDD in this case, that error does not amount to a deprivation of Anderson’s constitutional right to appeal since he had no such right before the Court of Appeals. 2 2021, the motion panel granted discretionary review, ruling that this Court’s
decision in Commonwealth v. Hess, 628 S.W.3d 56 (Ky. 2021) did not apply.
The motion panel reasoned that Hess involved a fugitive who remained at large
and was awaiting a favorable outcome in the Court of Appeals before
surrendering to custody. Id. at 59. Anderson, on the other hand, surrendered
to custody before the Court of Appeals had even ruled on the issue of whether
to accept jurisdiction. 2
Before the merits panel, the Commonwealth once again urged application
of the FDD. The merits panel was persuaded. The Court of Appeals reasoned
that the “interlocutory order [granting discretionary review] disregarded the fact
that Anderson sought the benefit of discretionary review while a fugitive from
the legal system. Consequently, the FDD applies and dismissal is within our
discretion.” Quoting Hess, the merits panel concluded Anderson’s case was a
“perfect example of when the FDD should be applied,” and “exactly what the
FDD intended to prevent.” Id. at 59. Anderson sought discretionary review in
this Court which we granted.
II. Standard of Review
We must clarify the standard of review as Anderson contends application
of the FDD is a conclusion of law reviewed de novo, while the Commonwealth
2 It is likely that Anderson has completed his sentence at this point in time. We
do not, however, believe this case is moot because “the expiration of a criminal sentence has been held not to moot an appeal from the judgment of conviction, because there remain consequences of the conviction . . . deemed sufficient to keep alive the appellant's personal stake in the outcome of the appeal.” Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014).
3 contends application of the FDD is discretionary therefore subject to an abuse
of discretion standard. We agree with Anderson. It is true that application of
the FDD has been called “discretionary.” Hess, 628 S.W.3d at 60. But this
overlooks the fact that application of the FDD is dependent upon an
assessment of facts and their legal consequences. “[I]f a determination is made
by processes of legal reasoning from, or of interpretation of the legal
significance of, the evidentiary facts, it is a conclusion of law.” Schultz v. Gen.
Elec. Healthcare Fin. Serv. Inc., 360 S.W.3d 171, 175 (Ky. 2012) (quoting Poyner
v. Lear Siegler, Inc., 542 F.2d 955, 959 (6th Cir. 1976)). An appellate court
looks to whether the appellant has in fact absconded custody; when he
absconded; whether he remains a fugitive; if not, was his return to custody
voluntary or involuntary; the nature of the proceeding (criminal or civil, as well
as the legal claims); and the nexus between the appellant’s status and the
appeal itself. These unequivocally involve a legal conclusion on the significance
of evidentiary facts. Id. But just as well, several prudential concerns such as
enforceability of judgment; judicial administration; dignity of the court;
deterrence; and simply the magnitude of punishment, are also used to
determine whether the FDD applies. It is to these latter considerations that the
term “discretionary” is properly referred to, but only because such
considerations defy bright-line rules; they guide a decision but do not fix it.
The Supreme Court of the United States has exercised review over these
prudential concerns and channeled them. Ortega-Rodriguez v. United States,
507 U.S. 234, 244-50 (1993); Degen v. United States, 517 U.S. 820, 825 (1996).
4 Neither of those cases mention giving deference to the lower court opinion
being reviewed. In fact, the Supreme Court explicitly stated that review of
application of the FDD is not to occur on a case-by-case basis which is a
hallmark of issues calling for an abuse of discretion standard. Ortega-
Rodriguez, 507 U.S. at 250 n. 23. Instead, the Supreme Court stated that
“dismissal of fugitive appeals is always discretionary, [only] in the sense that
fugitivity does not ‘strip the case of its character as an adjudicable [sic] case or
controversy[.]’” Id. (quoting Molinaro v. New Jersey, 396 U.S. 365, 366 (1970)).
Thus, we conclude the question of whether the FDD applies is properly
reviewed de novo as a question of law.
III. Analysis
Anderson has written that the FDD “is largely rooted in federal law.”
Untrue. The FDD is rooted in the “inherent authority” of the judiciary “to
protect their proceedings and judgments in the course of discharging their
traditional responsibilities.” Degen, 517 U.S at 823. The first application of the
doctrine in Kentucky in fact preceded by two years’ its first application by the
Supreme Court of the United States. Wilson v. Commonwealth, 73 Ky. 526
(1874); Smith v. United States, 94 U.S. 97 (1876). Nonetheless, the same
concerns and factors operate in both judicial systems thus federal precedent is
persuasive authority.
That said, we find it worth noting that the Supreme Court in Smith did
dismiss an appeal based on the FDD but also stated it would not enforce that
ruling if “the plaintiff in error submit himself to the jurisdiction of the court
5 below on or before the first day of our next term, the cause be left off the docket
after that time.” Smith, 94 U.S. at 98. Thus, at the very inception of the
doctrine in the federal judiciary there is an acknowledgment that a voluntary
surrender to custody could negate application of the FDD. The Wilson decision
contained no similar caveat, but unquestionably the appellant in that case
remained “at large.” Wilson, 73 Ky. at 526. In Crum v. Commonwealth, the
Court did explicitly allow the appellant an opportunity to surrender to custody
before finalizing its dismissal—"the appeal [is] dismissed, with the right of the
appellant to surrender himself and make application within six months from
this date for a reinstatement thereof[.]” 23 S.W.2d 550, 550 (Ky. 1930).
Crum offers valuable guidance to the scenario at issue here. In that case,
the Court held the general rule is “[t]he escape of defendant from custody after
conviction deprives him of the benefit of a review, and whether he escapes
before or pending his appeal it may be dismissed on motion, unless he
surrenders himself before the matter is determined or within a time fixed by the
Court.” Id. (internal quotation omitted) (emphasis added). It also said, “the
order of dismissal [should not be] final until the accused has had an
opportunity to surrender himself to the proper custody and submit to the
jurisdiction of the Court.” Id. (internal quotation omitted). Finally, it explained
that
the better rule, as stated in the two texts supra, [is] to fix a reasonable time within which appellant may surrender himself and make application for a reinstatement of the appeal, to be determined by the court from the evidence heard thereon in the exercise of a sound discretion.
6 Id. 3 We see no reason to depart from a rule that has been firmly in place for
close to a hundred years and has arguably existed since the inception of the
FDD. Although Crum seems to be controlling on this issue, it is not since it
only holds that time ought to be allowed for an absconder to submit to custody
before a dismissal is enforced. We cite it only to demonstrate that the law has
never been so rigid in its approach as to utterly foreclose penitence. Like the
father to the prodigal son, the law demands obedience and will leave the one
who flees from him and remains outside his countenance to suffer the
consequences—that is the purpose of the FDD. But should the fugitive return
in a reasonable time and submit to the jurisdiction of the court, then he is
welcomed back, and he will be judged with equity and right judgment.
The Court of Appeals thought otherwise and, relying significantly upon
Hess, ruled that because Anderson was a fugitive when he sought the benefit of
discretionary review, the FDD applied and dismissed his appeal. To the
contrary, the rule of Hess is nothing more than when an appellant absconds
and remains at large then application of the FDD is appropriate. Hess, 628
S.W.3d at 59. In Hess, the appellant had absconded and was “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.” Id. She absconded after her case was
before the Court of Appeals. Id. We held such a circumstance is “exactly what
3 Once again, we see an opinion invoking the “sound discretion” of the court
making the determination of whether the FDD applies. But it must be remembered that at the time Crum was rendered, there was no intermediate court of appeal in Kentucky. The Court was referring to its own discretion. 7 the FDD [is] intended to prevent.” Id.; see also Casebolt v. Butler, 194 S.W. 305,
306-08 (Ky. 1917) (affirming that an appellant in either a criminal or civil case
who absconds from the jurisdiction of the court in disobedience of a court
order, and remains outside that jurisdiction so as not to be amenable to
processes were the appeal decided against him, has forfeited his right of
appeal).
Significantly, however, the question of applying the FDD in Hess was
also “inextricably intertwined with the incorrect conclusion of law that Hess
had a constitutional right to appeal.” Hess, 628 S.W.3d at 59. Because the
Court of Appeals had erred on the constitutional question, it subsequently
erred in not applying the FDD. Id. The present case is factually distinguishable
and presents a different legal question than Hess, so it is not controlling.
Anderson did abscond from the District Court and Circuit Court but
subsequently surrendered. Anderson remained at large when his counsel filed
a motion for discretionary review with the Court of Appeals. In response, the
Commonwealth asked the court to invoke the FDD and deny the motion.
Anderson surrendered to custody after the Commonwealth filed its response
but before the motion panel ruled on his motion. He did not abscond after that.
Finally, there is no constitutional question presented by applying or not
applying the FDD.
With these facts in mind, we undertake a review of the prudential
concerns identified in Ortega-Rodriguez, 507 U.S. at 244-50, as they apply to
this case. First, enforceability of the court’s judgment is not implicated. A
8 fugitive at large is not “in a condition in which he could be compelled to submit
to our decision, if against him, [therefore] he ought not to be allowed to have
the benefit of the decision if it was in his favor[.]” Norton v. Commonwealth, 78
Ky. 501, 501 (1880). Anderson manifestly is not in such a condition and the
Court of Appeals’ decision, whether for or against him, would be enforceable
because he returned to custody. Nor do we see how the efficient administration
of justice is enhanced by application of the FDD in this circumstance. Because
Anderson submitted to custody prior to the court ruling on his motion for
discretionary review, his former fugitive status could not and did not have any
impact on that court to properly conduct an appeal. Equally as important, if
the Court of Appeals rules in favor of Anderson, then he, being in custody, can
be returned to the jurisdiction of the trial court and the trial court may conduct
itself accordingly.
Neither are concerns over dignity implicated here. Although Anderson
was a fugitive when his motion for discretionary review was filed, at that point
the Court of Appeals had not asserted jurisdiction and Anderson returned to
custody once the FDD doctrine had been invoked by the Commonwealth prior
to the assertion of jurisdiction. That is not the act of one flouting the dignity of
the Court of Appeals. Relatedly, the Supreme Court of the United States has
made clear that in the federal judiciary, the FDD may not be invoked by an
appellate court to protect the dignity of the district courts. Ortega-Rodriguez,
507 U.S. at 246. In Ortega-Rodriguez, the appellant’s fugitive status was
entirely confined to the time in which his case was pending before the federal
9 district court. Id. Thus, the Supreme Court held it was for the district court to
protect its own dignity. Id. Allowing an appellate court to invoke the FDD to
vindicate the district court would go too far and potentially “allow an appellate
court to sanction by dismissal any conduct that exhibited disrespect for any
aspect of the judicial system, even where such conduct has no connection to
the course of appellate proceedings.” Id.
We find this rationale persuasive. Anderson was a fugitive during the
pendency of his matter-of-right appeal before the Hickman Circuit Court. It
was to that court that his actions expressed contempt and disregard, and thus,
for that court to vindicate its own dignity and prerogatives. 4 The
Commonwealth, however, did not ask that court to invoke the FDD and
dismiss his appeal. Once the FDD was first asserted before the Court of
Appeals, Anderson submitted to custody. Again, this is difficult to characterize
as contempt and disregard for the dignity of the Court of Appeals.
Finally, the deterrence consideration is also not implicated here. The
Supreme Court has said, “[o]nce jurisdiction has vested in the appellate court .
. . then any deterrent to escape must flow from appellate consequences, and
dismissal may be an appropriate sanction by which to deter.” Id. at 247. In
other words, invoking the FDD in the Court of Appeals must sustain the Court
4 We are aware that the Court of Appeals has held the FDD cannot be invoked
to dismiss a matter of right appeal guaranteed by Ky. Const. § 115. Warfield v. Commonwealth, No. 2021-CA-1404-MR, 2023 WL 2718970, at *3 (Ky. Ct. App. Mar. 31, 2023), review granted (June 7, 2023). But we have since ordered that decision to be depublished and is now non-binding authority. Commonwealth v. Warfield, 2023- SC-0188, (Ky. Oct. 24, 2024). This Court awaits an appropriate case to determine whether the FDD can constitutionally be applied in a matter of right appeal.
10 of Appeals’ purpose and function, and discourage fleeing whilst in that court’s
jurisdiction. If Anderson had remained a fugitive, then application of the FDD
would have been relatively straight-forward; but the specter of the FDD in the
Court of Appeals served its purpose here—it brought Anderson back into
custody peaceably. Given that occurrence, dismissal in the Court of Appeals is
not appropriate. As the Seventh Circuit has observed, “it is not at all clear that
it [the FDD] should be invoked in a case like this, where the party in question
is no longer a fugitive . . . . In cases where escaped fugitives have been
recaptured, courts have been reluctant to impose the severe sanction of
disentitling them to access to the federal courts.” Gutierrez-Almazan v.
Gonzales, 453 F.3d 956, 957 (7th Cir. 2006). This is particularly true here,
where the Court of Appeals’ ruling will send a message to the criminal appellate
bar that if their client absconds and remain at large, the FDD will apply; but if
their client surrenders to custody prior to the Court of Appeals accepting
jurisdiction, the FDD will still apply. Such a rule will tend to convince
absconders that they have nothing to gain by resubmission to custody. It
would hinder the judicial process by foreclosing review of alleged trial court
errors; and contribute to the danger inherent in law enforcement trying to
apprehend fugitives who may be convinced they have nothing left to lose. 5
Thus, dismissal here is a punishment that does not “fit the crime” because
Anderson showed no similar contempt for the Court of Appeals as he did to the
5 We grant that Anderson likely did not feel this way since he was sentenced to
180 days in prison, with only 60 days to serve. But, then again, he absconded—he did it for some reason. We are speaking to the precedential effect of the Court of Appeals’ ruling and not to Anderson specifically. 11 Circuit Court, nor did his fugitive status frustrate or hinder orderly judicial
administration within the Court of Appeals.
Finally, the Court of Appeals mentioned that Anderson having been a
fugitive for more than a year was good reason to apply the FDD. The Supreme
Court has recognized that “that a long escape, even if ended before sentencing
and appeal, may so delay the onset of appellate proceedings that the
Government would be prejudiced in locating witnesses and presenting evidence
at retrial after a successful appeal.” Ortega-Rodriguez, 507 U.S. at 249. But
Anderson was convicted for unlawful disposition of property, and the Court of
Appeals did not cite how his one year at large had led to any destruction of
evidence, loss of witnesses against Anderson, or how the government would be
prejudiced in the event of remand to the trial court. See United States v.
Morgan, 254 F.3d 424, 427 (2nd Cir. 2001) (six-year duration of fugitive status,
during which time key government witness was lost, justified applying FDD
because of prejudice to government although Appellant had surrendered to
custody). The Commonwealth has similarly failed in its brief to this Court to
identify how it would be prejudiced in the event Anderson is successful on
appeal. Therefore, we conclude as a matter of law that application of the FDD
in the circumstance presented by this case is incorrect and reverse the Court of
Appeals.
12 IV. Conclusion
Anderson’s case presents fundamentally different facts from those in
Hess. Our application of the FDD in Hess concerned an appellant who had
absconded after the Court of Appeals had asserted jurisdiction in her case and
refused to resubmit herself to custody; and the Court of Appeals’ refusal to
apply that doctrine in Hess concerned a mistaken legal judgment that Hess
had a constitutional right to appeal. None of those facts are present here. The
FDD is not a hammer; it is, to borrow from President Theodore Roosevelt, the
judiciary’s way of speaking softly and carrying a big stick. The “big stick”
loomed over Anderson’s appeal, and in response he submitted himself to
custody. While other cases may present factors that would still justify applying
the FDD even in the event of resubmission to custody, there are no such
circumstances identified by the Commonwealth in this case. Thus, we hold the
Court of Appeals erred in applying the FDD to Anderson’s discretionarily
granted appeal. We remand back to the Court of Appeals for consideration of
the merits of Anderson’s appeal.
All sitting. All concur.
13 COUNSEL FOR APPELLANT:
Adam Meyer Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Shawn D. Chapman Deputy Solicitor General
J. Grant Burdette Assistant Solicitor General