Could Kentucky begin removing an elected official after an accepted felony guilty plea but before sentencing?

Plain-English summary

Kentucky's Attorney General concluded in 1997 that an ouster action against a public official convicted of a felony could begin after the court accepted a guilty plea and before sentencing. Kentucky Constitution section 150 required a conviction, not a sentence, and the opinion treated an accepted guilty plea as sufficient for that purpose.

The AG drew a practical distinction: ordinarily the action should wait until entry of a final judgment that included the sentence. Before judgment, a defendant might withdraw a plea, or a conditional plea might be withdrawn after a successful appeal. Acting immediately could therefore produce an inappropriate removal judgment.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

When the action could start

The question concerned an elected official who pleaded guilty to a federal offense. The AG said section 150 of the Kentucky Constitution required removal after a felony conviction, and it read an accepted guilty plea as a conviction even without sentencing. A plea did not become effective until the court accepted it. The opinion assigned ouster actions involving county officials to the commonwealth attorney and those involving other officials to the Attorney General under KRS 415.040 and KRS 415.050.

Why the opinion recommended waiting

The AG said a defendant could seek to withdraw a plea before judgment and could also enter a conditional plea subject to withdrawal after a successful appeal. For that reason, it said the ordinary course was to postpone an ouster action until a final judgment setting out the plea, adjudication and sentence. The timing recommendation did not erase its conclusion that a pre-sentence action was legally possible after acceptance of the plea.

Common questions

Was sentencing required before a Kentucky official's ouster action could begin?

The AG said no. An accepted felony guilty plea could support beginning the action before sentencing, although the opinion ordinarily recommended waiting for final judgment.

Was signing or offering a guilty plea enough?

The opinion conditioned its answer on the court's acceptance of the plea. It said a plea was not effective before acceptance under state and federal rules.

Who would bring the ouster action?

The AG said the commonwealth attorney was responsible for county officials and the Attorney General for other officials under the cited statutes.

Background and statutory framework

Commonwealth Attorney Anna D. Melvin asked when to proceed after a federal felony plea. The opinion discussed Kentucky Constitution section 150, KRS 415.040 and KRS 415.050, and cited Greer v Commonwealth and Grace v Commonwealth on guilty pleas and convictions. It also referred to state and federal criminal rules on acceptance, withdrawal and final judgment. Its distinction was between legal authority to file and the usual timing it recommended.

Citations and references

• Kentucky Constitution section 150: felony conviction and removal from office.
• KRS 415.040 and KRS 415.050: officials responsible for ouster actions.
• Greer v Commonwealth, Ky App, 713 SW 2d 256 (1986), and Grace v Commonwealth, Ky App, 915 SW 2d 754 (1996): conviction analysis discussed by the opinion.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_f139e574-f640-41e7-bad2-820e55c40d70/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_f139e574-f640-41e7-bad2-820e55c40d70

Original opinion text

OAG 97-30
August 8, 1997
Subject:

Ouster of an official who has pleaded guilty to a
felony

Requested by:

Anna D. Melvin, Commonwealth Attorney for the 24 th
Judicial Circuit

Written by:

Ross T. Carter

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:
OAGs cited:

KRS 415.040, KRS 415.050

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 at-

OAG 97-30
Page 2

torney 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. Albert B. Chandler III Attorney General

Ross T. Carter
Assistant Attorney General