FROM CAMPBELL CIRCUIT COURT HONORABLE JULIE REINHARDT WARD,
JUDGE ACTION NO. 14-CR-00865
FOR APPELLANT: Emily Holt Rohrer Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Frankfort, Kentucky Jason B. Moore Assistant Attorney General
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND TAYLOR, JUDGES.
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.
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. 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.
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. Hess then filed this appeal.
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.
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).
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
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).
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