RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 0692

- DG
JOHN EDWARD ANDERSON APPELLANT

v. ON REVIEW FROM HICKMAN CIRCUIT COURT

HONORABLE TIMOTHY A. LANGFORD, JUDGE

ACTION NO. 20

- XX

- 00003

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AND ORDER DISMISSING
**   **  **
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).- 2

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BACKGROUND FACTS AND PROCEDURAL HISTORY After a bench trial, Anderson was found guilty of theft by failure to make required disposition of property 1 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 jai l 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 aff irmed by a May 18, 2021, opinion

. T he reafter , Anderson sought discretionary review from this Court

. On September 13, 2021, t he Commonwealth sought dismissal of th is 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
I n its bri ef, t he 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.- 3

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denying relief, pursuant to RAP 2 43(D)

. 3 We, however, disagree. Though
Anderson is correct that this rule permit s 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 34 4 , 350 (Ky. A pp. 2012) ; s ee 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 be cause [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.- 4

- 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 , No. 2017

- CA

- 2022

- MR & 2017

- CA

- 2044

- MR, 2021
WL 4024429 (Sep. 3, 202 1)

. 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. Ap plying Hess , 628 S.W.3d 56, the C ourt 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 li kewise appropriate herein

.

Not disputing the Commonwealth’s claims, Anderson nevertheless
mainta i ns that the FDD is not applicable under these facts because, unlike Hess
and Collins which involved appeals secured only by statute, th e 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 Collin s was rendered prior to the November 30, 2021 , order at issue herein, the opinion did not become final until December 21, 2021.- 5

- As recognized by the Court in Hess , S ection 115 of the Kentucky
Constitution 5 “ 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
here in is Anderson’s entitlement to discr etionary review which, as indicated by the name, is not a right secured by the Constitutio n but is instead granted solely as a

matte r 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 acknowledg ment of the court’s discretion to dismiss

non
- constitutional appeals in order to pr event 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 6 1

. We agree with the Commonwealth that our interlocutory order disregarded the fact that Anderson sought the benefit of

5 “ I n all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court[.]” ( E mphasis added

. )

6 Former ly codified at CR 76.20

.- 6

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discretionary review while a fugitive from the legal system. Cons equently, 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 h is surrender was motivate d 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 just ice s ystem s hould 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: _______________ JUDGE, COURT OF APPEALS- 7

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BRIEF S FOR APPELLANT: Adam Meyer Frankfort, Kentucky BRIEF FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Brian D. Morrow Assistant Attorney General Frankfort, Kentucky