RENDERED: MAY 18, 2012; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MELDRUM GREG HARVEY
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NOS. 04-CR-00151 & 06-CR-00232
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: DIXON AND VANMETER, JUDGES; LAMBERT,1 SENIOR
DIXON, JUDGE: Meldrum Greg Harvey appeals from a judgment of the
Muhlenberg Circuit Court rendered following his conditional guilty plea to the
offense of first-degree bail jumping. Finding no error, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In April 2005, a jury found Harvey guilty of the rape and sodomy of a
child under the age of twelve. At his sentencing hearing, the court imposed a
sentence of forty years’ imprisonment; however, the court granted Harvey’s
request for bail pending the direct appeal of his conviction to the Kentucky
Supreme Court. Harvey’s family posted a $50,000 cash bond to secure Harvey’s
release from custody pending appeal. The court’s order granting bail set forth the
following conditions of release:
[T]he defendant shall have no contact whatsoever with
the [victim’s] family and the defendant shall have no
unsupervised contact with any unrelated female less than
twelve (12) years of age and the defendant shall report to
jail when ordered.
In November 2006, the Supreme Court rendered an opinion affirming
Harvey’s conviction on direct appeal. On November 29, 2006, the trial court sua
sponte issued an order revoking Harvey’s bail and ordering him to report to jail on
December 6, 2006. On December 4, Harvey filed a motion to reconsider, alleging
the court was without authority to revoke the appeal bond because the Supreme
Court opinion was not final.2 The trial court denied Harvey’s motion, and Harvey
failed to report to jail as ordered.
On December 15, 2006, Harvey was indicted for first-degree bail
jumping, and he was not apprehended until seven months later.3 After Harvey was
Indeed, Harvey emphasizes the initial opinion was withdrawn, and the final opinion affirming
his conviction was not rendered until June 2007.
During Harvey’s absence from custody, the Commonwealth moved for the forfeiture of
Harvey’s bond. Following a hearing, the court ordered forfeiture of the $50,000 bond, and the
sureties appealed. A panel of this Court affirmed the forfeiture order in an unpublished decision,
taken into custody, he moved to dismiss the bail jumping indictment. Harvey
alleged he was denied due process by the court’s sua sponte decision to revoke bail
and that the court’s order was void ab initio. The court denied Harvey’s motion;
thereafter, he entered a conditional guilty plea, which reserved the right to appeal
the issue of bond revocation.
Harvey raises several theories on appeal to support his contention that
revocation of bail on appeal was erroneous as a matter of law and warranted
dismissal of the bail jumping indictment. The majority of Harvey’s arguments are
premised on the trial court’s alleged failure to follow the Kentucky Rules of
Criminal Procedure regarding bail.
RCr 12.78 states:
Bail on appeal
(1) Bail may be allowed by the trial
judge pending appeal notwithstanding that
service of the sentence has commenced,
except when the defendant has been
sentenced to death or life imprisonment.
(2) When a person has been convicted
of an offense and only a fine has been
imposed the amount of bail shall not exceed
the amount of the fine and costs.
(3) The applicable provisions
governing bail shall apply to bail on appeal.
(4) The court allowing bail may at any
time revoke the order admitting the
defendant to bail.
Harvey v. Commonwealth, 2007-CA-000461-MR (Jan. 25, 2008).
In Johnson v. Commonwealth, 551 S.W.2d 577, 578 (Ky. App. 1977), the
Court noted, “RCr 12.78 allows the circuit judge wide discretion in granting bail
and in revoking bail after a defendant has been convicted.” Although Harvey
reluctantly acknowledges the authority vested in the trial court by RCr 12.78(4), he
insists that RCr 12.78(3) requires the court to hold a due process hearing before
revoking bail on appeal. Harvey cites RCr 4.42, titled “Change of conditions of
release,” which requires a court to hold an adversary hearing before issuing
findings regarding a change in release conditions. According to Harvey, the
court’s sua sponte revocation of bail on appeal constituted a change in his
conditions of release that required a due process hearing.
First, we disagree with Harvey’s characterization of the revocation order as a
change in his release conditions. One of Harvey’s conditions of release was the
requirement that he report to jail when ordered; accordingly, the court’s revocation
order directing Harvey to report to jail was consistent with release conditions, not a
change in release conditions.
Second, by its plain language, RCr 4.42(1) states the hearing requirement
applies to a defendant released on bail prior to trial. As RCr 4.42 is clearly limited
to pre-trial bail, we are not persuaded the rule is applicable to bail on appeal by
operation of RCr 12.78(3). This interpretation is logical, as there is no
constitutional right to bail following conviction and pending appeal. Braden v.
Lady, 276 S.W.2d 664, 666 (Ky. 1955). “The presumption of innocence which is
the basis of all legitimate guarantees of bail no longer applies to a convicted
defendant.” Commonwealth v. Peacock, 701 S.W.2d 397, 398 (Ky. 1985). Quite
simply, Harvey was convicted of a serious crime, he was granted bail at the court’s
discretion, and he agreed to report to jail when so ordered. The trial court clearly
had the authority to revoke Harvey’s bail at any time, without holding a hearing
and regardless of the status of his direct appeal. See RCr 12.78(4).
In sum, the trial court did not abuse its discretion by revoking Harvey’s bail
on appeal and ordering him to report to jail. Furthermore, because the revocation
order was binding on Harvey, the court properly denied the subsequent motion to
dismiss the bail jumping indictment.4
For the reasons stated herein, the judgment of the Muhlenberg Circuit Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Vincent Aprile II
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Although we have fully considered the remaining arguments raised by Harvey, we conclude
they are without merit and need not be addressed herein.