Thursday, March 13, 2003
Court Allows Former Fugitive to Appeal Conviction
By a MetNews Staff Writer
The fugitive disentitlement doctrine does not necessarily bar a former fugitive from having a dismissed appeal reinstated after being apprehended, the Court of Appeal for this district ruled yesterday.
“Put in perspective, disentitlement is largely symbolic,” Div. Four held in a per curiam order by Presiding Justice Charles Vogel and Justices Norman Epstein and J. Gary Hastings.
The ruling allows Hyun Gu Kang to appeal his conviction and sentences aggregating 271 years to life in prison on multiple counts of rape, sodomy, robbery, burglary and conspiracy.
Kang skipped out on a $2.5 million bond while awaiting sentencing, which was to take place in April 1999. Over objections by Kang’s trial lawyer, Madelynn Kopple, who had filed a motion for new trial prior to his disappearance, the trial judge imposed sentence without hearing the motion for new trial.
Kopple filed a notice of appeal, signed by “Hyun Gu Kang by Madelynn Kopple,” designating Kang as the appellant “In Propria Persona.”
While the appeal was pending, another well-known local defense lawyer, Charles Lindner, notified the Court of Appeal that he had been retained on Kang’s behalf by the defendant’s father but had been informed by the clerk that Kang could not appeal while a fugitive. The appeal was dismissed for lack of an opening brief in February 2000, 20 months before Kang was extradited from South Korea.
On Kang’s return, the trial judge vacated the original sentence, denied the motion for new trial, and sentenced Kang to the same aggregate sentence as before. Kang’s new counsel filed a new notice of appeal, and moved that the original appeal be reinstated and the two appeals be consolidated.
The attorney general moved that the second appeal be dismissed.
The appeals court rejected the defense contention that the original appeal should be reinstated because its dismissal was a result of ineffective assistance by Lindner. Lindner had no duty to represent Kang, the court said, because Kang never retained him and there was no showing that Kang had authorized his father to retain counsel.
The panel, however, said it would exercise its discretion to allow Kang to appeal now that he is back within the court’s jurisdiction.
The justices wrote:
“Because Kang is now in custody and no longer a fugitive, the decision of the appellate court is enforceable. It may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable. If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear—although the penalty for that crime pales in comparison with the sentence imposed by the trial court “
Since the prosecution did not demonstrate that any witnesses were unavailable or that evidence was lost while the defendant was a fugitive, the justices added, the only prejudice shown was that the court could not consolidate Kang’s appeal with that of his codefendant’s. That loss of efficiency is not sufficient to justify denial of the right to appeal, the court concluded.
The case is People v. Kang, B134480.
Copyright 2003, Metropolitan News Company