Brandon Collins v. Commonwealth of Kentucky ( 2021 )

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-2022-MR
&
NO. 2017-CA-2044-MR
BRANDON COLLINS APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NOS. 16-CR-00178 & 16-CR-00142
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: JONES, KRAMER,1 AND K. THOMPSON, JUDGES.
KRAMER, JUDGE: Brandon Collins appeals from an order of the Hardin Circuit
Court revoking his probation. This Court held the case in abeyance pending
1
Judge Joy A. Kramer authored and signed the above-styled Opinion and Order Dismissing prior
to her retirement effective September 1, 2021. Release of this Opinion and Order Dismissing was
delayed due to administrative handling.
Commonwealth v. Hess, ___ S.W.3d ___, No. 2019-SC-0130-DG, 2021 WL
2619707 (Ky. Jun. 17, 2021), as modified on denial reh’g (Aug. 26, 2021).2 Based
upon Hess, we now apply the Fugitive Disentitlement Doctrine (FDD) and dismiss
Collins’s appeal.
In June 2016, Collins pleaded guilty to: (1) two counts of illegal
possession of a controlled substance in the first degree; (2) two counts of illegal
possession of drug paraphernalia; (3) burglary in the second degree; and (4) escape
in the second degree. The Commonwealth recommended a ten-year sentence
probated for five years in exchange for Collins’s plea. One of the conditions of his
probation was completion of the Hardin County felony drug court program.
Collins began drug court in January 2017 and was an active
participant for the first few months. However, he was terminated from the drug
court program in October 2017 after multiple violations. Collins then absconded
probation supervision; did not contact his drug court supervisor; and was unable to
be located. He was ultimately arrested in November 2017.
The Commonwealth moved to revoke Collins’s probation, and the
circuit court granted the motion in an order entered December 5, 2017. This
appeal followed. However, during the pendency of the appeal, Collins was granted
2
Finality entered August 26, 2021 pursuant to Kentucky Rule of Civil Procedure 76.30(2)(c) and
designated to be published.
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parole and subsequently absconded supervision. On February 15, 2019, this Court
ordered Collins to show cause why the appeal should not be dismissed, but we
eventually ordered the case be held in abeyance pending resolution of Hess in the
Kentucky Supreme Court.
On April 2, 2019, counsel for Collins filed a notice with this Court
indicating that Collins was once again in custody. However, public records
indicate he was paroled for the second time in September 2020, and again
absconded supervision.3 He was arrested on or about June 19, 2021.4
When a criminal defendant absconds and remains a fugitive during his
or her appellate process, dismissal of the appeal is an appropriate sanction under
the long-standing FDD. Hess, 2021 WL 2619707, at *1. In 2013, this Court
reasoned that
[n]o persuasive reason exists why [courts] 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
3
“A court may properly take judicial notice of public records and government documents,
including public records and government documents available from reliable sources on the
internet.” Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App. 2004) (footnote omitted). Although it
is unclear from the public records when Collins absconded from parole supervision in the second
instance, the Kentucky Online Offender Lookup (KOOL) system listed Collins as “absconded”
and his supervision begin date as September 29, 2020.
4
Kentucky’s Victim Information and Notification Everyday (VINE) system showed that Collins
was arrested and in custody at the Hardin County Detention Center. The detention center’s
website showed that Collins was booked on June 19, 2021.
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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.
Lemaster v. Commonwealth, 399 S.W.3d 34, 35 (Ky. App. 2013) (quoting
Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 498-99, 24 L. Ed. 2d
586 (1970)).
Similar to the defendant in Hess, Collins was present for the
revocation hearing and the beginning of the appellate process. While Hess
absconded once while on parole, public records show that Collins absconded at
least twice. As a consequence, he has been largely absent from the appellate
process. Applying the Kentucky Supreme Court’s reasoning in Hess, we also
conclude that Collins’s appeal “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. [Collins’s] actions are exactly what the
FDD intended to prevent.” Hess, 2021 WL 2619707, at *3.5
5
Similar to the defendant in Hess, we also note that Collins waived his constitutional right to a
single, direct appeal when he entered a guilty plea. See KY. CONST. § 115; Hess, 2021 WL
2619707, at *3. Collins signed AOC Form 491, Motion to Enter a Guilty Plea, which
specifically stated he understood he was waiving his right to appeal his case to a higher court.
Although he appealed the order revoking his probation, he did so under Kentucky Revised
Statute (KRS) 22A.020(1).
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Accordingly, it is hereby ORDERED that this appeal be, and is,
DISMISSED.
ALL CONCUR.
ENTERED: September 3, 2021
JUDGE, COURT OF APPEALS6
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Samuel N. Potter Andy Beshear
Frankfort, Kentucky Attorney General of Kentucky
(former)
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
6
Electronically signed on August 30, 2021.
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