Opinion
Opinion By: Albert B. Chandler III, Attorney General, Ross T. Carter, Manager of the Opinions Branch
Subject: Ouster of an official who has pleaded guilty to a felony
Syllabus: Commonwealth attorney may, but should not, commence ouster proceedings against an official who has pleaded guilty to a felony but has not yet been sentenced
Statutes construed: KRS 415.040, KRS 415.050
OAGs cited: None
Opinion of the Attorney General
The question presented is:
Pursuant to KRS 415.040, when should the Commonwealth take measures to remove an elected official from office if he has been convicted of a federal offense, upon his plea of guilty or after he has been finally sentenced?
Under section 150 of the Constitution of Kentucky, a public official who has been convicted of a felony must be removed from office. Bringing an ouster action is the responsibility of the commonwealth attorney as to county officials, and the Attorney General as to other officials. KRS 415.040, 415.050.
A guilty plea is the equivalent of a conviction, of course, because there is no appeal from a guilty plea. Greer v Commonwealth, Ky App, 713 SW 2d 256 (1986). The word conviction does not always refer to a final judgment. Grace v Commonwealth, Ky App, 915 SW 2d 754 (1996). Because section 150 requires only a conviction, and not a sentence, an ouster proceeding may be initiated before the defendant has been sentenced. (This assumes that the court has accepted the plea; under both state and federal rules, a guilty plea is not effective until the court has accepted it. RCr 8.08; Fed R Crim P 11.)
In most cases, however, the better course would be to wait until a judgment including the sentence is rendered. Before judgment, a defendant may move to withdraw a guilty plea. RCr 8.10; Fed R Crim P 11(e)(4). A defendant may also enter a conditional plea that may be withdrawn after a successful appeal. RCr 8.09; Fed R Crim P 11(a)(2). In either of these situations, an ouster proceeding initiated immediately following the guilty plea might lead to an inappropriate judgment removing the defendant from office.
Both state and federal rules provide for a judgment setting forth the plea, verdict, adjudication, and sentence. RCr 11.04(1); Fed R Crim P 32(d)(1). Ordinarily ouster actions should be postponed until the entry of such a final judgment.