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Hess v. Commonwealth

Court of Appeals of Kentucky

February 1, 2019



          BRIEFS FOR APPELLANT: Emily Holt Rohrer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky



          TAYLOR, JUDGE.

         Erin Hess brings this appeal from the Campbell Circuit Court's Order entered September 13, 2016, revoking her probation. For the following reasons, we vacate and remand.

         Pursuant to a guilty plea, Hess was sentenced in January 2015 to two-years' imprisonment for possession of a controlled substance in the first degree, with that sentence to be probated for three years.[1] In August 2016, Kentucky Probation and Parole Officer Chad McDonald filed a report which recommended Hess's probation be revoked for absconding from supervision. McDonald's recommendation was based upon an affidavit by an unnamed probation officer from Ohio, where Hess resided. The report noted that unnamed citizens had complained about Hess using drugs, whereupon the probation officer and a police officer went to Hess's last known address. No one answered the door, so the probation officer left a business card in the door and walked around the apartment building. When the probation officer returned about five minutes later the business card was gone. The probation officer called Hess's cell phone and left a message instructing Hess to contact him/her immediately. Hess did not contact the probation officer. Approximately ten days later, the officer left another message on Hess's voicemail directing her to report to the officer in two days. Hess did not report, after which the officer filed an affidavit asserting that Hess had absconded.

         On September 7, 2016, the Campbell Circuit Court conducted a probation revocation hearing at which Hess appeared. At the hearing, Officer McDonald was the only witness and he testified in accordance with the Ohio report since he had no personal knowledge of the allegations. The trial court found that Hess had absconded from supervision and revoked her probation. The trial court expressly stated it believed findings regarding Hess being unable to be appropriately managed in the community and being a significant risk to the community were not required in absconsion cases.[2] Hess then filed this appeal.

         Before we may address the merits of the revocation, we must resolve the Commonwealth's antecedent arguments. According to the Commonwealth, while this appeal was pending Hess was granted parole, from which she has absconded. The Commonwealth thus argues: a) this appeal should be dismissed under the fugitive disentitlement doctrine, or b) the appeal should be dismissed as moot since Hess was granted parole.

         We may quickly reject the Commonwealth's assertion that this appeal is moot simply because Hess was granted parole. The Kentucky Supreme Court has refused to adopt the Commonwealth's mootness theory. See Hunt v. Commonwealth, 326 S.W.3d 437, 439 n.1 (Ky. 2010) ("We note that, as of the time of oral argument, Hunt had been released on parole. However, we do not believe that this [probation revocation] case is moot, as parole remains a sufficient restraint to confer jurisdiction. The disposition of this case on remand could also affect Hunt's terms and conditions of release, as well as his official records.") (citation omitted).

         The Commonwealth's request for the invocation of the fugitive disentitlement doctrine may not be so easily resolved. "The fugitive disentitlement doctrine permits a court to dismiss an appeal, if the appellant is a fugitive while the matter is pending." 4 C.J.S. Appeal and Error § 269 (2018). The United States Supreme Court has endorsed the doctrine. See, e.g., Molinaro v. New Jersey, 396 U.S. 365 (1970). Specifically, the Court held:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the 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.

Id. at 366. In our most recent published opinion on the topic, we quoted that language from Molinaro to support invoking the doctrine. Lemaster v. Commonwealth, 399 S.W.3d 34, 35 (Ky. App. 2013).

         Hess argues that her alleged absconsion should not be considered by this Court because it was not considered by the trial court. See, e.g., Triplett v.Commonwealth, 439 S.W.2d 944, 945 (Ky. 1969) ("This is not a court of original jurisdiction. New material not considered by the trial court is not admissible and should not be considered by us."). However, the trial court could not have ...

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