“One Missed Appearance, Many Offenses” – Kentucky Supreme Court Clarifies the Unit-of-Prosecution for First-Degree Bail Jumping

Introduction

In Brandon Blair v. Commonwealth of Kentucky, the Supreme Court of Kentucky confronted a deceptively simple but recurrent problem: when a defendant on multiple felony bonds skips a single court date, has he committed one act of bail jumping or as many acts as there are pending felony charges?

Brandon Blair, facing five separate indictments for trafficking in methamphetamine, failed to appear at a consolidated court session. Prosecutors responded with five new indictments—one count of first-degree bail jumping for each trafficking case. Blair argued that punishing him five times for one non-appearance violated the state and federal Double Jeopardy clauses. The trial court and Court of Appeals rejected his position, prompting discretionary review by the Commonwealth’s highest court.

The decision now handed down—affirming five separate bail jumping convictions—sets a significant precedent on the “unit of prosecution” for bail-jumping offenses, explicating legislative intent and addressing double-jeopardy concerns in Kentucky.

Summary of the Judgment

Justice Bisig, writing for the majority, held that:

The legislature intended each underlying felony charge to constitute a discrete unit of prosecution for first-degree bail jumping under KRS 520.070(1).
Therefore, a defendant who misses one court date at which multiple felony cases are scheduled can be charged and convicted separately for each missed case without infringing double jeopardy protections.
The statutory focus on “a charge of having committed a felony” (singular) reveals a legislative desire to tie the bail-jumping offense to each distinct felony accusation, not to the administrative event of a hearing.

Accordingly, Blair’s five bail-jumping convictions and cumulative ten-year sentence (five years for trafficking, five years for bail jumping) were upheld.

Analysis

A. Precedents Cited and Their Influence

Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010) – Demonstrated that one physical act (firing a single shot) could support multiple wanton-endangerment charges, reinforcing that statutory units of prosecution may exceed the number of physical acts.
Louisville & Jefferson Cty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533 (Ky. 2007) – Confirmed de-novo review for questions of law and statutory interpretation.
Bordenkircher v. Hayes, 434 U.S. 357 (1978) – Cited for prosecutorial discretion in charging decisions.
Bloyer v. Commonwealth, 647 S.W.3d 219 (Ky. 2022) and University of Louisville v. Rothstein, 532 S.W.3d 644 (Ky. 2017) – Reiterated the primacy of plain statutory language in discerning legislative intent.
Out-of-state authorities: Connecticut’s State v. Garvin, 682 A.2d 562 (1996) (persuasive for multiple counts); contrary Florida, Oklahoma, D.C. cases (supporting a “one appearance/one crime” rule) were distinguished and ultimately rejected.

B. Legal Reasoning

1. Plain-Language Statutory Analysis
KRS 520.070(1) criminalizes an intentional failure to appear “in connection with a charge of having committed a felony.” The Court read the singular article “a” as deliberate, concluding that each felony charge retains its own bond, its own court order, and its own promise to appear. Missing a consolidated hearing therefore breaches multiple distinct promises, producing multiple offenses.

2. Unit-of-Prosecution Doctrine
Under the Double Jeopardy Clause, legislatures define what constitutes a single offense. The majority reasoned that allowing one bail-jumping conviction per court date would let scheduling coincidences dictate criminal liability—an absurd result that would undermine the statute’s purpose “to uphold the integrity of the judicial process.”

3. Comparison of Felony vs. Misdemeanor Bail-Jumping Statutes
Kentucky maintains two parallel statutes—KRS 520.070 (felony) and KRS 520.080 (misdemeanor). The Court inferred that if non-appearance alone were the gravamen, separate statutes would be unnecessary; instead, the legislature clearly calibrated punishment to the gravity of the underlying charge, further coupling the offense to each charge rather than to each appearance.

4. Administrative Practicalities vs. Constitutional Limits
The majority deemed docket efficiency subordinate to statutory intent. Tying the unit of prosecution to court scheduling could inadvertently reward defendants whose cases are administratively combined, while penalizing those whose cases happen to be set on different days—an outcome deemed incompatible with legislative objectives.

C. Impact of the Judgment

Charging Practices: Prosecutors in Kentucky may confidently file separate bail-jumping counts correlating to each underlying felony (or misdemeanor under KRS 520.080) irrespective of docket consolidation.
Bond-Release Advisories: Defense counsel must warn clients that one missed appearance can trigger as many bail-jumping felonies as there are open cases, dramatically increasing exposure.
Judicial Administration: Trial courts may continue consolidating hearings for efficiency without fear that doing so limits the Commonwealth to a single bail-jumping charge.
Future Litigation: Challenges will likely shift to proportionality of consecutive sentencing rather than double-jeopardy theories. Moreover, the decision may ripple into analogous unit-of-prosecution disputes (e.g., failure-to-comply offenses, contempt proceedings).
Dissent’s Foothold: Justice Nickell’s dissent provides a roadmap for defendants elsewhere, emphasizing a “one-appearance” reading and urging courts to prevent “charging or docketing stratagems.” Other jurisdictions—especially those following Florida/Oklahoma/DC precedent—may resist Kentucky’s approach.

Complex Concepts Simplified

Double Jeopardy: A constitutional rule preventing a person from being tried or punished more than once for the same offense.
Unit of Prosecution: The smallest divisible act or element the legislature intends to punish under a particular statute. Identifying it determines how many offenses arise from a course of conduct.
Bail Jumping (KRS 520.070): Intentionally failing to appear at a required court date after being released on bond or other court order on a felony charge.
Conditional Release/Bond Order: A court-issued document allowing a defendant out of custody on conditions (e.g., appear in court, enroll in treatment). Each bond is its own enforceable order.
Persistent Felony Offender (PFO): Kentucky’s sentencing enhancement for repeat felony offenders. (Blair was originally charged as PFO 2nd degree, later dismissed in the plea deal.)

Conclusion

Brandon Blair v. Commonwealth cements a bright-line rule in Kentucky: an intentional failure to appear breaches each bond obligation tied to an individual felony charge, allowing multiple bail-jumping counts even when the absconding involves a single missed hearing. The majority’s textualist approach underscores that statutory language, not docket logistics, governs the scope of criminal liability.

While the dissent cautions that the ruling encourages prosecutorial “piling on” and strains double-jeopardy safeguards, the precedent now stands as a powerful tool for the Commonwealth—one that defendants and counsel must factor into bail decisions, plea negotiations, and risk assessments. The decision further contributes to the broader national dialogue on unit-of-prosecution analysis, offering a detailed roadmap that other state courts may either follow or consciously distinguish in future bail-jumping and failure-to-appear litigation.