John Edward Anderson v. Commonwealth of Kentucky

RENDERED: MAY 19, 2023; 10:00 A.M.
TO BE PUBLISHED
ORDERED PUBLISHED: JULY 14, 2023; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0692-DG
JOHN EDWARD ANDERSON APPELLANT
ON REVIEW FROM HICKMAN CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 20-XX-00003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AND ORDER
DISMISSING
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BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
DIXON, JUDGE: John Edward Anderson is before the Court on discretionary
review from the Hickman Circuit Court’s order affirming his conviction of theft by
failure to make required disposition of property. After careful review of the briefs,
record, and law, we dismiss this action pursuant to the Fugitive Disentitlement
Doctrine (FDD).
BACKGROUND FACTS AND PROCEDURAL HISTORY
After a bench trial, Anderson was found guilty of theft by failure to
make required disposition of property1 and was subsequently sentenced by the
Hickman District Court on August 17, 2020, to 180 days, 60 days to serve and the
balance conditionally discharged for two years. Anderson was ordered to report to
jail by September 14, 2020, to begin service on his conviction. He failed to
comply, and a bench warrant was issued on September 16, 2020. Despite having
absconded, Anderson, through counsel, timely appealed his conviction, and the
Hickman Circuit Court affirmed by a May 18, 2021, opinion.
Thereafter, Anderson sought discretionary review from this Court.
On September 13, 2021, the Commonwealth sought dismissal of this action under
the FDD based on Anderson’s ongoing fugitive status. Anderson subsequently
surrendered himself to the jail and implored this Court to grant discretionary
review. On November 30, 2021, a panel of this Court denied the Commonwealth’s
motion, and discretionary review was ultimately granted.
LEGAL ANALYSIS
In its brief, the Commonwealth renews its contention that this action
should be dismissed under the FDD. In response, Anderson argues the issue was
waived by the Commonwealth’s failure to file a motion to reconsider the order
1
Kentucky Revised Statutes (KRS) 514.070.
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denying relief, pursuant to RAP2 43(D).3 We, however, disagree. Though
Anderson is correct that this rule permits the filing of reconsideration motions,
neither the RAP nor the prior rule mandate that the failure to do so constitutes a
waiver. Further, as the Commonwealth notes, it has long been recognized that
“[t]his Court retains authority to review decisions on motion panel that do not
finally dispose of the case[.]” Commonwealth Bank & Tr. Co. v. Young, 361
S.W.3d 344, 350 (Ky. App. 2012); see also Knott v. Crown Colony Farm, Inc., 865
S.W.2d 326, 329 (Ky. 1993). Accordingly, we now turn to the merits of the
Commonwealth’s claim.
“The [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.” Commonwealth v. Hess, 628 S.W.3d 56, 57
(Ky. 2021). In our interlocutory order declining to apply the FDD, we reasoned:
This case is distinguishable from Hess because
[Anderson] has not remained a fugitive. He has
surrendered at this point. The Supreme Court of the
United States stated that it could not accept an expansion
of the FDD “that would 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
2
Kentucky Rules of Appellate Procedure.
3
This action was briefed prior to the January 1, 2023, adoption of the RAP. However, as the
prior rule, Kentucky Rule of Civil Procedure 76.38, was substantially similar, we have elected to
reference the RAP in the interest of clarity.
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the appellant proceedings.” Ortega-Rodriguez v. U.S.,
507 U.S. 234, 246 (1993).
In response, the Commonwealth asserts Ortega-Rodriguez is
distinguishable, the defendant in that case having been returned to custody prior to
his appeal, and the interlocutory order is otherwise inconsistent with our holding in
Collins v. Commonwealth, Nos. 2017-CA-2022-MR & 2017-CA-2044-MR, 2021
WL 4024429 (Sep. 3, 2021).4 In that case, Collins twice absconded from
supervision while his appeal contesting the revocation of his probation was
pending; though, like Anderson, Collins was apprehended prior to the resolution of
his appeal. Id. at *1. Applying Hess, 628 S.W.3d 56, the Court concluded that
since Collins had largely absented himself from the appellate process, the FDD
applied, and the appeal was dismissed. Collins, 2021 WL 4024429, at *2. Hence,
the Commonwealth reasons that dismissal is likewise appropriate herein.
Not disputing the Commonwealth’s claims, Anderson nevertheless
maintains that the FDD is not applicable under these facts because, unlike Hess
and Collins which involved appeals secured only by statute, the appeal of his
conviction is guaranteed by Section 115 of the Kentucky Constitution. Because
the characterization of Anderson’s appeal as constitutional is incorrect, we
disagree.
4
Though Collins was rendered prior to the November 30, 2021, order at issue herein, the
opinion did not become final until December 21, 2021.
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As recognized by the Court in Hess, Section 115 of the Kentucky
Constitution5 “confers to a defendant a single, direct appeal as a matter of right.”
628 S.W.3d at 59-60 (citing Hollon v. Commonwealth, 334 S.W.3d 431, 435 (Ky.
2010) (single appeal as a matter of right) and Moore v. Commonwealth, 199
S.W.3d 132, 137 (Ky. 2006) (first appeal is a matter of constitutional right)). In
satisfaction of this right, Anderson exercised without infringement a direct appeal
to the Hickman Circuit Court of his Hickman District Court conviction. At issue
herein is Anderson’s entitlement to discretionary review which, as indicated by the
name, is not a right secured by the Constitution but is instead granted solely as a
matter of judicial discretion pursuant to RAP 44.6 See Beard v. Com. ex rel. Shaw,
891 S.W.2d 382 (Ky. 1994). Thus, Anderson’s claim that the FDD is not
applicable is unavailing.
The FDD is an acknowledgment of the court’s discretion to dismiss
non-constitutional appeals in order to prevent a defendant from realizing a reward
under the rules of the legal system from which he has simultaneously absented
himself. Hess, 628 S.W.3d at 61. We agree with the Commonwealth that our
interlocutory order disregarded the fact that Anderson sought the benefit of
5
“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal
to another court[.]” (Emphasis added.)
6
Formerly codified at CR 76.20.
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discretionary review while a fugitive from the legal system. Consequently, the
FDD applies and dismissal is within our discretion. We further conclude that
dismissal is appropriate given Anderson’s evasion of the underlying sentence for
approximately one year and the reasonable inference that his surrender was
motivated entirely by his desire to escape the repercussions of that decision.
Echoing the Court in Hess, this action “is a perfect example of when the FDD
should be applied since it is fundamentally offensive that a person who has
removed [him]self from the justice system should potentially reap its benefits
should the appellate process decide in [his] favor. [Anderson’s] actions are exactly
what the FDD intended to prevent.” Id at 59.
CONCLUSION
Therefore, and for the foregoing reasons, it is hereby ORDERED that
this appeal be, and it hereby is, DISMISSED.
ALL CONCUR.
ENTERED: __May 19, 2023___
JUDGE, COURT OF APPEALS
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Brian D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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