Seymour was found to be a “nonadmitter” by the DOC and was denied admission to the full SOTP.  Seymour filed a Petition for Declaration of Rights and for Temporary and Permanent Injunctive Relief with the Oldham Circuit Court against the Appellees asking for a ruling that he was entitled to attend the SOTP. 

Those offenders deemed unlikely to benefit from the SOTP are not accepted into the full program. These offenders specifically include those persons defined as “nonadmitters” under CPP 13.6(IV)(3), which encompasses people “who do[] not admit guilt or responsibility for committing the sexual offense.” CPP 13.6(VI)(B)(2).

All rejected non-admitters, without exception, are permitted to reapply for admission into the full SOTP after 180 days, and they may be accepted into the program “if [they are] willing to admit guilt or responsibility for [their] sexually assaultive offense.” CPP 13.6(VI)(B)(3).

The General Assembly gave the DOC “the sole authority and responsibility for establishing by regulation  the design” of the SOTP. KRS 197.420(1). Consequently, cannot say that a failure to provide an individualized treatment plan to enable a sex offender to qualify for the SOTP is in derogation of this considerable leeway afforded the DOC or of anything else set forth in KRS 197.400 to 197.440.

COA upheld doctor's license suspension.

CA says that arbitration clause should be enforced and lower court's stay of arbitration is reversed because the question of whether arbitration was waived by actions of Cinn. Gas was for the arbitrator to decide. 

COA affirmed trial court's sanction on discovery.  On the morning of trial, Hils and Blunt filed a motion in limine requesting that Geers be prohibited from introducing any documents relating to his damages that had not been previously produced during discovery. The Commissioner observed that the corporate tax returns had not been timely produced to the appellees and granted their motion.

Conviction upheld based upon facts of case.  

Fleming Logan brings this appeal from order denying his Ky. R. Crim. P. (RCr) 11.42 motion to vacate judgment entered upon a guilty plea to one count of second-degree sodomy and four counts of first-degree sexual abuse.   COA affirms in part, reverses in part and remands. 

Appellant contends the trial court committed reversible error by denying his RCr 11.42 motion without an evidentiary hearing and without appointment of counsel.  Appellant raises several allegations of ineffective assistance of counsel.  All but one deemed to be without merit. 

COA was "troubled by appellant’s contention that he received gross misadvice concerning parole eligibility from trial counsel. For the reasons hereinafter elucidated, we are of the opinion that appellant’s allegation that trial counsel allegedly misadvised him concerning parole eligibility cannot be conclusively resolved upon the face of the record."

In his motion, appellant alleged that trial counsel informed him that by accepting the plea agreement and pleading guilty he “would be out in three or four months.” If trial counsel did so inform appellant, such advice is patently incorrect. See KRS 197.045(4). Gross misadvice concerning parole eligibility has been recognized as ineffective assistance of trial counsel. Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988).

Were appellant’s allegations true,  trial counsel’s performance was deficient and fell outside the range of reasonable competent counsel. 

The Court may not simply disbelieve appellant’s allegation in the absence of evidence in the record refuting such allegation. Thus, COA was compelled to remand this matter for an evidentiary hearing upon the narrow issue of whether trial counsel did in fact inform appellant that he would only serve three to four months in jail.

The trial court abused its discretion by denying the defendant's motion to withdraw his guilty plea without first conducting a hearing on the matter.

COA disagreed with defendant's claim that trial court erred in denying her 
motion to suppress the evidence because the information gathered by the officers prior to her being detained at the convenience store was insufficient to support the reasonable and articulable suspicion of criminal activity required to justify an investigatory stop under Terry v. Ohio.

In Ornelas v. United States, the Supreme Court of the United States “recognized that police may draw inferences of illegal activity from facts that may appear innocent to a lay person and that a reviewing court should give due weight to the assessment by the trial court of the credibility of the officer and the reasonableness of the 
inferences.” 

COA rejected Ravenscraft's claim that because the trial court’s judgment in Case No. 02-CR-00637-001 failed to direct the manner in which the sentences would be served, KRS 532.110(2) requires his two prison sentences to be served concurrently, and that the Department of Corrections acted improperly and without authority when it determined his sentences would be served consecutively.

KRS 533.060(2) provides as follows:

When a person has been convicted of a felony and is committed to a correctional detention facility and released on parole or  has been released by the court on probation,  shock probation, or conditional discharge, 
and is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock probation, or conditional discharge, the person shall not be eligible for probation, shock probation, or  conditional discharge and the period of  confinement for that felony shall not run concurrently with any other sentence. 

In Riley v. Parke, our Supreme Court addressed the apparent conflict between KRS 532.110(2) and KRS 533.060(2) and held that KRS 533.060(2) takes precedence over KRS 532.110(2) because the intent of the Legislature in drafting KRS 533.060(2) “was to exact a further penalty upon those who, allowed to leave prison early, choose to violate their agreements and commit yet more crimes.” 

T]he test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Probable cause does not require certainty that a crime has been committed or that evidence will be present in the place to be searched.

The presence of the roach of marijuana in the hallway provided sufficient probable cause to search not only the house, but by extension the curtilage of the house which included the camper and the yard.

Reversed judgment of the Perry Circuit Court requiring the city to pay retirement pension benefits to an officer of the Hazard City Police Department while the officer continues to remain employed by the city in the same paid position. 

It would seem obvious that in order to receive retirement pension benefits, one must “retire”. The terms “retire”, “retirement” and “pension” are not defined in KRS Chapter 95.  As defined in the 1977 edition of Webster’s New Collegiate Dictionary, “retire” means “to withdraw from one’s position or occupation: conclude one’s working or professional career”; “retirement” means “withdrawal from one’s position or occupation or from active working life”; and “pension” means “a fixed sum paid regularly to a person: one paid under given conditions to a person following his retirement from service or to his surviving dependents.” 

As a general rule, COA review of an administrative agency’s adjudicatory decision is limited to a primary concern with the question of arbitrariness. Thompson v. Kentucky Unemployment Ins. Com’n, 85 S.W.3d 621, 624 (Ky.App. 2002).

More specifically, judicial review of the Commission’s decision here is governed by the rule that if the Commission’s findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding.

COA's  review of the administrative record found the Commission’s findings of fact are supported by substantial evidence of probative value under the standards set forth above.

2004-CA-002378.pdf
Judge: BUCKINGHAM
AFFIRMING 
Date: 7/29/2005
NOT PUBLISHED

BOYD  V. MAHMOUD
FAMILY LAW - Child Custody (Standing)

Maternal uncle and his wife sought to intervene in child custody dispute for the purpose of obtaining temporary and permanent custody of niece, though neither of them had acted as de facto custodians for niece nor had they ever had actual custody of her.  CA held that in order to supercede a parent’s superior right to custody under these circumstances, a non-parent must prove that either the parents have waived their superior rights or that s/he is an unfit parent.  Since Mom had been arrested for custodial interference and was thus unfit and Dad had not waived his superior right to custody, Maternal Uncle and Wife were required to prove that Dad was an unfit parent.  They argued to CA that Niece’s hatred of Dad sufficiently proved his unfitness.  CA held that Niece’s perceptions of Dad were insufficient, standing alone, to prove Dad’s unfitness, because such a finding would require a demonstration of conduct similar to activity that could result in the termination of parental rights by the state.

2004-CA-001725
Judge: KNOPF
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING 
Date: 7/29/2005
NOT PUBLISHED

NELSON V. NORYS
FAMILY LAW - Child custody and jurisdiction

CA held that under both UCCJA and UCCJEA, a Kentucky court has jurisdiction to make a child-custody determination by initial or modification decree if: (1) Kentucky is or has been the child’s home state for six months prior to the commencement of the proceeding; or (2) the child and at least one of the parents have a significant connection with Kentucky and substantial evidence is available in Kentucky concerning the child’s care, protection, training and personal relationships, even if no other state had pending motions for modification.  However, both Acts allow enforcement actions to continue in Kentucky until another state has properly entered a custody modification.

2004-CA-000205.pdf
Judge: DYCHE
AFFIRMING 
Date: 7/29/2005
NOT PUBLISHED

McKENZIE V. McKENZIE
FAMILY LAW - Maintenance (Early Retirement; Reduction)

CA found no abuse of discretion in TC’s adoption of DRC’s recommendation not to reduce Ex-husband’s maintenance obligation due to his early retirement.  DRC found that Wife should not be penalized for Ex-husband’s decision to “take it easy,” though Ex-wife received more funds because of early retirement due to a previous division of a pension plan determined to be a marital asset.

CA affirms in part, and reverses and remands in part this case in which the TC ordered a forced sale of real estate to pay child support.

Pro se appellant was sentenced to 30 years' imprisonment in 2000. By 2003, his child support arrearages exceeded $10,000 and a judgment lien was filed against a parcel of his real estate. Foreclosure was filed; judgment and order of sale obtained; and $38,000 realized. The Cabinet moved for the proceeds in excess of appellant's arrearages be held to pay future child support. Appellant moved for 50% to be paid to his adult daughter. TC ordered excess held for future child support, or to be paid to the adult daughter as trustee to pay future child support and any of appellant's extraordinary needs.

CA upholds TC judgment except where it purports to create a trust for the minor children. State law already has a provision for the District Court to appoint a suitable curator in such situations.

CA affirms TC award of maintenance.

Parties had been married 33 years; she was primarily a homemaker; he was a railroad worker prior to a disabling accident in 1999. They split the proceeds of $175,000 from their home sale; she spent her half on a new home and remodeling. His monthly income is $2,500; she received $400/month in temporary maintenance and $360 in child support and worked a seasonal job. TC ordered $300/month in maintenance. Appellant argues TC should've considered increase in maintenance to account for loss of child support at child's maturity and that she lacks the resources to pay for her needs.

CA finds no abuse of discretion.

CA affirms TC judgment denying coverage under a CGL policy. (Jeff. Cir. Ct., Hon. Lisabeth Hughes Abramson, Judge, presiding).

Five-year-old boy was electrocuted on a faulty garage door. Parents sued A&A Garage for wrongful death, and Brackney Electric, its subcontractor, and Jonathan Brackney, master electrician. Brackney Electric and Brackney were covered by a Grange CGL policy. A settlement was reached under this policy. A second Grange policy existed for "John Brackney & Tony Fitz, d/b/a Cullup & Fitz Construction." Grange denied coverage under this policy.

TC reasoned that under the clear and unambiguous terms of the policy, Grange insured the risks associated with a business operated by Brackney and Fitz in partnership and that coverage did not include work performed by Brackney and Brackney Electric. CA concurs.

After recognizing the distinction between “county roads” and “public roads,” the Court set forth a significant legal distinction between the two, 
consequently, a county road adopted by formal action after 1914 may only be abandoned by formal governmental action, but a public road that is not a “county road” can be abandoned without formal action. Id. at 333.

Without formal action by the county to abandon that part of Dark Hollow Road crossing the Inabnitts’ property, the obstructions, including the gate, will have to be removed.

These appeals dealt with causation of asbestos related injuries in which the claims were dismissed at summary judgment in favor of the defendant.

In each of these cases, North Brothers moved forsummary judgment on the basis that the evidence failed to establish that either plaintiff had been exposed to an asbestos containing product installed, sold, or distributed by North Brothers. A review of each appellant’s response to the motion discloses that while they can place North Brothers in their plants during the course of their work life, they cannot specifically connect North Brothers’ work to asbestos-containing material.  Appellants argue that issues of exposure and causation in asbestos-related disease cases constitute questions of fact that only a jury can resolve.

The claimant has the burden to prove legal causation; however, it is well recognized that “legal causation may be established by a quantum of 
circumstantial evidence from which a jury may reasonably infer that the product was a legal cause of the harm.” Holbrook v. Rose, Ky., 458 S.W.2d 155, 157 (1970).   To find causation, the jury naturally draws inferences from circumstantial evidence.  These inferences, however, must be
reasonable, that is they must “indicate the probable as distinguished from a possible cause.”

The claimant had been diagnosed with hearing loss in 1995, at a company sponsored test.  However, he did not stop working nor file a claim until 2002, weeks after he had been told that the hearing loss was due to his work.  The Court and Board affirmed the finding that the disability did not become manifest until such time as the claimant was told by a doctor that his hearing loss was caused by his work, applying the rule used in cumulative trauma cases.  Therefore the claim was not barred by the statute of limitations.  The rule for occupational disease cases is that the disability does not become manifest until the claimant ceases being exposed to the hazard which causes his disease.   

The claimant requested and received an award of vocational rehabilitation benefits.  When he was scheduled to attend, however, he did not attend, stating that he did not feel he could be retrained.  The Defendant reopened the claim and obtained an Order requiring the claimant to attend a vocational rehabilitation evaluation.  The claimant appealed, and the Board affirmed, stating that the claimant could be orderd to attend.  It will be interesting to see what will happen if he does not go.  The statute does not allow a reduction of benefits for this reason, but the statute does state that vocational retraining can be awarded.  Usually, it is the claimant who requests the training and the employer who resists paying for it.

KRS 342.165 bars a claim for injury where the employee knowingly gave false information about his prior injuries, and the employee has an injury which stems from that false statement.  In this case the claimant had had a low back injury only two years prior to becoming employed by the defendant.  He settled his claim based on a 5% impairment rating.  However, he revealed none of this on his employee physical when he applied for a job as a coal miner.  The present injury was an exacerbation of the same degenerative disc problem, and thus the ALJ held that the statute barred any recovery for that claim.  The reopening of his 1998 injury and settlement may have been successful, however, that claim was not discussed in this opinion.

The employer appealed a finding of disability as a result of coal workers pneumocomiosis.  Among the findings made by the ALJ was that the experts on the panel of B-Readers had come to a consensus that the claimant had a finding of 1/0 pneumoconiosis.  However, one doctor¹s opinion was equivocal as to whether the x-ray findings were diagnostic of the disease or not.  The Board held, and the Court of Appeals affirmed, that the ALJ could infer from the doctor¹s report that he made a finding of the existence of the disease.