Zane R. Foote v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: July 25, 2025
• Docket: 2024-CA-0861
• Status: Unpublished

Opinion

RENDERED: JULY 25, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0861-MR

ZANE R. FOOTE APPELLANT

APPEAL FROM BUTLER CIRCUIT COURT v. HONORABLE TIMOTHY R. COLEMAN, JUDGE ACTION NO. 24-CR-00018

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.

COMBS, JUDGE: The Appellant, Zane R. Foote, was convicted of felony non-

support in a prior case, No. 16-CR-00133, and the trial court granted shock

probation. Thereafter, Foote’s shock probation was revoked, and the trial court

ordered Foote to report to jail. He failed to do so, giving rise to the present

indictment now before us on appeal. On March 18, 2024, a Butler County grand jury indicted Foote in

Butler Circuit Court, No. 24-CR-00018, charging:

that on or about January 22, 2024 in Butler County, Kentucky, the above-named defendant, Zane Foote, committed the offense of Bail Jumping in the First Degree when he failed to appear at the Butler County Jail as ordered on a felony case in Butler Circuit Court Action Nos. [sic] 16-CR-00133.

Bail jumping in the first-degree is governed by KRS1 520.070, which

provides in relevant part that:

(1) A person is guilty of bail jumping in the first degree when, having been released from custody by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place in connection with a charge of having committed a felony, he intentionally fails to appear at that time and place.

(Bold-face emphasis added.)

At arraignment, Foote’s counsel moved the trial court to dismiss the

indictment pursuant to RCr2 8.18. Counsel argued that the basis upon which Foote

was indicted was not a crime; i.e., that the indictment itself failed to state a crime.

He contended that while KRS 520.070(1) requires an underlying felony charge,

Foote was on shock-probation at the time that he failed to appear. The status of

1 Kentucky Revised Statutes. 2 Kentucky Rules of Criminal Procedure.

-2- being a probation violator is not an offense. Although, the trial court orally denied

the motion, it said that counsel could refile it.

On April 18, 2024, Foote filed a written motion to dismiss the

indictment with prejudice. He argued that under KRS 520.070, the indictment

must contain the pending charge for which the defendant did not appear and that a

bill of particulars “will not clear this up, because Mr. Foote did not have a pending

felony charge in 16-CR-00133.” Rather, Foote had been sentenced in that case on

August 13, 2019, and that “this is a conviction, not a charge.” Thus, counsel

essentially argued that the underlying felony offense was an accomplished,

finished event; it could not properly serve as a predicate for this charge of bail

jumping, which could only be properly premised on probation violation.

On June 11, 2024, before the trial court ruled on his written motion,

Foote entered an unconditional guilty plea to Count 1: Bail Jumping-1st Degree.

Foote accepted a five-year sentence, and the Commonwealth agreed to shock

probation once Foote met certain conditions. The trial court sentenced Foote to

five years.3

Foote now appeals, arguing that the indictment did not adequately

state an offense and thus that it did not confer subject matter jurisdiction upon the

trial court. Foote notes that even if defense counsel did not preserve the issue

3 The trial court later placed Foote on shock probation in this case.

-3- below, “at any time while the case is pending, the court may hear a claim that the

indictment or information fails to invoke the court’s jurisdiction or to state an

offense[.]” RCr 8.18(1)(b). Foote also cites Windsor v. Commonwealth, 250

S.W.3d 306 (Ky. 2008), which holds that:

While an unconditional guilty plea waives the right to appeal many constitutional protections as well as the right to appeal a finding of guilt on the sufficiency of the evidence, . . . there are some remaining issues that can be raised in an appeal. These include competency to plead guilty; whether the plea complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); subject matter jurisdiction and failure to charge a public offense; and sentencing issues.

Id. at 307 (bold-face emphasis added) (footnotes omitted).

Therefore, we may consider the issues which Foote raises on appeal

regardless of preservation concerns. Because the facts are not in dispute and the

fact that Foote’s argument raises issues of statutory interpretation, our review is de

novo. Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 2018).

As Foote explains at pages 6-7 of his Appellant’s brief, the bail-

jumping indictment incorrectly lists the felony case for which Foote failed to report

to jail as No. 16-CR-00133. Again, Foote had already been convicted and

sentenced for felony non-support in that case; his sentence had been shock-

probated; and his probation had been revoked. Thus, there was no pending felony

charge in No. 16-CR-00133 when Foote allegedly jumped bail. Foote submits that

-4- “first-degree bail jumping requires a failure to appear ‘in connection with a charge

of having committed a felony[.]’ KRS 520.070(1) (emphasis added).” He also

argues that “[v]iolating probation is not a charge. A probationer has already been

convicted. Thus, bail jumping applies to a failure to appear in connection to

pending substantive charges, not a failure to appear regarding post-judgment

probation.”

Foote relies upon Curley v. Commonwealth, 895 S.W.2d 10 (Ky. App.

1995). In Curley, the Court examined KRS 520.070(1) as well as KRS

520.080(1),4 which governs bail jumping in the second degree. Curley had been

indicted for: (1) theft by unlawful taking over $300, a Class D felony; (2)

receiving stolen property over $100, a Class D felony; (3) third-degree criminal

trespass, a violation; and (4) giving a peace officer a false name or address, a Class

B misdemeanor. Id. at 11.

Curley pled guilty to an amended charge of theft by unlawful taking

under $300, a Class A misdemeanor, as well as the charges of third-degree

4 KRS 520.080(1) provides:

A person is guilty of bail jumping in the second degree when, having been released from custody by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place in connection with a charge of having committed a misdemeanor, he intentionally fails to appear at that time and place.

(Emphasis added.)

-5- criminal trespass and giving a peace officer a false name or address. The felony

charge of receiving stolen property over $100 was dismissed. The trial court

accepted Curley’s plea and scheduled him for sentencing. However, Curley failed

to appear for sentencing. The trial court issued a bench warrant. Ultimately,

Curley was indicted for first-degree bail jumping. Id.

Curley entered a conditional guilty plea to first-degree bail-jumping.

On appeal, Curley argued that he could not be convicted of first-degree bail

jumping under KRS 520.070(1) because the original felony charge of theft by

unlawful taking had been amended to a misdemeanor charge before the bail

jumping occurred. The Commonwealth argued that Curley could be convicted of

first-degree bail jumping because he had originally been charged with two

felonies, emphasizing that the charge brought against the defendant was key to

understanding KRS 520.070 -- not the state of proceeding at the time he failed to

appear. Id. at 11-12. The Court disagreed with the Commonwealth and explained:

If the words of the statute are plain and unambiguous, the statute must be applied to those terms without resort to any construction or interpretation. The words of KRS 520.070 and KRS 520.080 are plain and unambiguous, and thus dispositive of this appeal. We hold that the nature of the charge(s) against a defendant at the time he jumps bail determines whether KRS 520.070 or KRS 520.080 applies. We cannot accept the argument that a defendant who is originally charged with a felony, but later has the charge amended to a misdemeanor or dismissed, is always subject to the charge of first-degree bail

-6- jumping. Such an interpretation negates the plain meaning of both KRS 520.070 and KRS 520.080. Because Curley was charged only with two misdemeanors and a violation at the time he jumped bail, he can only be charged with second-degree bail jumping.

Id. at 12 (bold-face emphasis added) (internal quotations marks and citations

omitted). In other words, in Curley, the Court found that “the plain and

unambiguous meaning of KRS 520.070 . . . prohibit[s] Curley’s conviction for

[first-degree bail jumping.]” Id. at 11.

The plain and unambiguous words of KRS 520.070(1) have not

changed since Curley was decided. When Foote failed to report to jail after his

probation had been revoked in No. 16-CR-00133, there was no pending felony

charge against him. That felony charge had been adjudicated and was no longer a

viable predicate for the charge of first-degree bail jumping. Consequently, under

the circumstances of this particular case, we agree with Foote that the indictment

did not state a public offense and did not confer subject matter jurisdiction on the

trial court.

In reaching this conclusion, we find helpful guidance in the reasoning

of a recent decision from one of our sister states. New Mexico v. Office of Public

Defender on Behalf of Yazzie, ___ P.3d ___, 2025 WL 1023443 (N.M. 2025),

addressed the issue of the validity of a criminal defendant’s plea to a non-existent

crime. The Supreme Court of New Mexico explained that:

-7- To date, our appellate courts have not had the opportunity to consider the validity of a criminal defendant’s plea to a nonexistent crime. This Court has, however, had the opportunity to consider a similar issue— the efficacy of a district court’s sentence imposed absent statutory authority. In State v. Trujillo, this Court reasoned that “[a] trial court’s power to sentence is derived exclusively from statute.” 2007-NMSC-017, ¶ 10, 141 N.M. 451, 157 P.3d 16 (internal quotation marks and citation omitted). If the district court was not statutorily or constitutionally permitted to sentence the defendant in the manner he was sentenced, then his sentence is illegal. See id. ¶ 9. Trujillo explained that a defendant’s plea to an illegal sentence rises to the level of a jurisdictional defect. Id. ¶ 8. And, a defendant who pleads guilty “does not waive jurisdictional errors.” Id.

Id. at *3. Relying upon those principles, the Court in Yazzi held that a court’s

“acceptance of a guilty or no contest plea to a nonexistent crime is a jurisdictional

error that cannot be waived by a plea agreement and can be raised for the first time

on appeal.” Id.

Granted, first-degree bail jumping -- in and of itself -- is not a

“nonexistent crime”; however, Foote’s indictment for first-degree bail jumping in

the case before us was premised upon a felony charge that did not exist when the

failure to appear occurred. Thus, as in Curley, the plain and unambiguous

language of KRS 520.070 prohibits Foote’s conviction for first-degree bail

jumping, and Foote’s guilty plea to first-degree bail jumping cannot stand.

Accordingly, we vacate Foote’s guilty plea, reverse the judgment and

conviction, and remand to the trial court for a dismissal of the case.

-8- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Joshua M. Reho Russell Coleman Louisville, Kentucky Attorney General of Kentucky

Christopher Henry Assistant Solicitor General Frankfort, Kentucky

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