Commonwealth of Kentucky v. Erin Hess ( 2021 )

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
Supreme Court of Kentucky
2019-SC-0130-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2016-CA-1500
CAMPBELL CIRCUIT COURT NO. 14-CR-00865
ERIN HESS APPELLEE
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.
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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.
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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
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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
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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)
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(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).
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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’
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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
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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.
All sitting. All concur.
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
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