CUMMINS (MICHAEL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000791-MR
MICHAEL CUMMINS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 04-CR-00094
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
LAMBERT, JUDGE: Michael Cummins has appealed from an order of the
Franklin Circuit Court denying his motion to alter, amend, or vacate an earlier
order finding him liable to assault victim Joshua Hulker for restitution in the
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
amount of $40,727.79. Because we agree with Cummins that the circuit court did
not have jurisdiction to enter the order imposing that amount of restitution, we
reverse and remand.
The procedural history of this case is rather convoluted, as it concerns
two separate indictments. In addition, our ability to discern the events that
transpired at the circuit court level is somewhat hampered by an incomplete record.
With this in mind, we shall attempt to set forth the events as they appear in the
record and supplemental record before us.
In May 2004, Cummins was indicted along with two co-defendants by
the Franklin County grand jury (No. 04-CR-00080-002). He and co-defendant
Larry Cook, Jr., were indicted on a charge of first-degree burglary for entering the
home of Lloyd Gaines in November 2002 and causing him physical injury. A third
co-defendant, Steve Cox, was charged with complicity to first-degree burglary. In
June 2004, Cummins and co-defendant Brandon Landrum were indicted on a
separate charge of second-degree assault related to an attack on Joshua Hulker (No.
04-CR-00094-001). It appears from discussion in the video record that the assault
charge went to trial before Judge Graham, but the trial ended in a hung jury.
The burglary and assault charges, together, ultimately became the
basis for the Commonwealth’s offer on a plea of guilty. The supplemental record
contains the written offer, which was filed in the record on April 27, 2006:
1. Charges:
Indictment No. 04-CR-00080-002
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Burglary in the First Degree
Class B Felony
KRS 511.020
UOR 22021
Penalty: 10-20 years
Indictment No. 04-CR-00094-001
Assault in the Second Degree Penalty: 5-10 years
Class C Felony
KRS 508.020
UOR 13160
2. Amended Charges: Amend Indictment No. 04-CR00080-002 to KRS 511.030, Burglary in the 2nd Degree,
Class C Felony, UOR 22022, Penalty 5-10 years. Amend
Indictment No. 04-CR-00094-001 to KRS 508.030
Assault-Fourth Degree, Class A Misdemeanor, UOR
00430, 12 months.
3. Facts of the Case: In Indictment No. 04-CR-00080002, the defendant forcibly entered a residence in
Franklin [C]ounty Kentucky with the intent to commit a
crime. In Indictment No. 04-CR-00094-001, the
defendant assaulted Joshua Hulker with a stick or club.
4. Recommendations on a Plea of Guilty (Plea
Agreement):
The Defendant shall be sentenced to five (5) years
incarceration in the state corrections system on
Indictment No. 04-CR-00080-002 and 12 months
incarceration on Indictment No. 04-CR-00094-001, the
sentences to run concurrently for a total sentence of Five
(5) years.
The Commonwealth shall take no position on
probation so long as he be jointly and severally liable,
along with his co-defendants to make restitution to the
victim in Indictment No. 04-CR-00080-002, Lloyd D.
Gaines, Jr., to cover the costs of medical expenses and
loss of personal property taken in the amount of
$6,877.23 and for any future medical expenses incurred
as a result of the offense. Further, that he be jointly and
severally liable, along with his co-defendant to make
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restitution to the victim in Indictment No. 04-CR-00094001, Joshua Hulker, to cover the costs of medical
expenses in the amount of $1,600.00 representing
unreimbursed expenses disallowed by the Crime Victims
Compensation Board. [Emphasis added.]
5. Reason for amended charges: Evidentiary
considerations and saves the Commonwealth the expense
of a trial.
6. Offered this the 20th day of March, 2006.
The circuit court (now with Judge Crittenden presiding) held a guilty
plea hearing on April 21, 2006. At that time, the court and the parties discussed
the Commonwealth’s offer and its agreement to take no position on probation if
Cummins agreed to pay restitution to the respective victims. In the course of this
discussion, the court mentioned the amount of restitution owed in each case
pursuant to the offer. Specifically related to the assault case, the circuit court
stated that terms of the offer included the requirement that Cummins be jointly and
severally liability to Joshua Hulker in the amount of $1600.00. The court then
asked Cummins if that was what had been communicated to him, and Cummins
answered that it was. Cummins also indicated that he understood the meaning of
joint and several liability. The circuit court accepted Cummins’s plea and entered
an order to this effect. In the order, the circuit court included a recitation of the
Commonwealth’s recommended sentence, but did not include the $1600.00
amount. Rather, the order stated that he would “be jointly and severally liable,
along with his co-defendant to make restitution to the victim in Indictment No. 04-
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CR-00094-001, Joshua Hulker, to cover the costs of medical expenses disallowed
by the Crime Victims Compensation Board.”
The circuit court held a sentencing hearing on June 23, 2006. During
the hearing, Cummins requested probation and stated that he had agreed to pay
restitution if the court probated his sentence. The Commonwealth, as it did in the
offer, indicated that it would not object to probation if timely restitution payments
were made. At the conclusion of the hearing, the circuit court sentenced Cummins
in accordance with the plea agreement and probated the five-year sentence for a
total of five years or until restitution was completed. It indicated that the liability
for restitution was joint and several and that Cummins and his co-defendant would
be liable to Joshua Hulker for medical expenses disallowed by the Crime Victims
Compensation Board.
Judge Crittenden signed the judgment in No. 04-CR-00094-001,
which was entered the following day on June 29, 2006. The judgment properly
stated that Cummins’s twelve-month prison term on the assault conviction was
probated, but inaccurately ordered him to pay restitution in the amount of
$6,877.23, which was the amount due on the burglary conviction. The order of
probation was entered the same day, which similarly and incorrectly ordered
Cummins to make restitution to Lloyd Gains in the amount of $6,877.23.
On July 21, 2006, the circuit court (now with Judge McNamara
presiding) entered a sua sponte order correcting a “clerical error” in the order of
probation: “[A]s a condition of probation the Defendant be jointly and severally
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liable, along with his co-defendant to make restitution to the victim in Indictment
No. 04-CR-00094-001, Joshua Hulker, to cover the costs of medical expenses
disallowed by the Crime Victims Compensation Board.” Two subsequent orders
entered in 2006 and 2007 directed Cummins to have no contact with Joshua Hulker
or any member of his family and addressed Joshua Hulker’s immediate need for
$1700.00 to pay for surgery to correct injuries to his jaw. The court noted that
Cummins had already paid $550.00 in restitution and ordered him to pay an
additional $300.00. The video record indicates that Cummins’s co-defendant was
also responsible for paying a portion of the ordered funds.
On April 2, 2008, the Commonwealth filed a motion to correct a
clerical error, requesting that the court set the amount of restitution due at
$40,727.79, which represented the outstanding medical expenses Joshua Hulker
had incurred due to the assault. The motion set forth that in accordance with the
plea agreement, both Cummins and his co-defendant were to pay restitution for
medical expenses as a condition of their probation. The Commonwealth then
stated that Joshua Hulker was continuing to receive medical treatment, including
surgical care, for the injuries he sustained. The circuit court held a hearing on the
motion, at which both Cummins and his co-defendant objected. They argued that
they had agreed to pay $1600.00 in restitution, not in excess of $40,000.00, and
that the error raised by the Commonwealth’s motion was not a clerical error.
On May 5, 2008, the circuit court entered an order ruling on the
Commonwealth’s motion as follows:
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ORDER CLARIFYING
This matter is before the Court upon the
Commonwealth’s motion for the Court to correct a
clerical error in the Defendant’s restitution record. The
Court, having considered the record, having heard the
arguments of counsel, and being otherwise sufficiently
advised, issues the following Opinion and Order:
Defendant Brandon W. Landrum
(1) On August 6, 2004, Defendant Landrum was
arraigned on one charge of Assault in the Second Degree,
a Class C Felony. That case was styled 04-CR-00094(2).
(2) On March 23, 2006, Defendant Landrum entered a
plea of guilty to an amended charge of Assault in the
Fourth Degree, a Class A Misdemeanor. On that date,
Defendant Landrum was sentenced to imprisonment for
twelve (12) months, suspended for twelve (12) months on
the condition that he pay the victim, Joshua Hulker, the
amount of $850 in restitution along with certain other
conditions for release.
(3) Defendant’s Landrum’s posted bond in the amount of
$500 was applied to his restitution requirement and since
that time Defendant Landrum has fulfilled his obligatory
payments and completed the remainder of his
probationary terms and is no longer on probation.
(4) As such, Defendant Landrum does not owe the
Victim, Mr. Hulker, any further restitution.
Defendant Michael S. Cummins
(5) On May 12, 2004, the Defendant, Cummins, was
indicted by the Franklin County Grand Jury of: (a)
Burglary in the First Degree, a Class B Felony; and (b)
Complicity to Burglary in the First Degree, a Class B
Felony committed on November 6th, 2002. That case was
styled 04-CR-00080(2).
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(6) On August 6, 2004, Defendant Cummins was
arraigned on one charge of Assault in the Second Degree,
a Class C Felony. That case was styled 04-CR-00094(1).
(7) On April 21, 2006, Defendant Cummins plead [sic]
guilty to Burglary in the Second Degree, a Class C
Felony under Indictment No. 04-CR-00080(2) and to
Assault in the Fourth Degree, a Class A Misdemeanor
under Indictment No. 04-CR-00094(1).
(8) The Defendant was sentenced on April 23, 2006. For
the offense of Burglary in the Second Degree (Indictment
No. 04-CR-00080(2)), Cummins was sentenced to a term
of imprisonment of five (5) years to be probated for a
term of five (5) years. For the offense of Assault in the
Second [sic] Degree (Indictment No. 04-CR-00094(1)),
Cummins was sentenced to a term of imprisonment for
one (1) year to be probated for a term of five (5) years.
Both sentences and probation terms were to run
concurrently for a total of five (5) years imprisonment,
probated for five (5) years.
(9) In addition to standard probation conditions such as
drug testing and court costs, Defendant Cummins was
ordered to pay restitution to the victims of his crime.
(10) For the crime of Burglary in the Second Degree
(Indictment No. 04-CR-00080(1)), Cummins was ordered
to pay Mr. Lloyd D. Gaines, Jr. $6,877.23 to cover the
cost of medical expenses and loss of personal property
taken during the commission of the crime. Defendant
Cummins is jointly and severally liable for the restitution
amounts. Defendant Cummins’ co-defendants have not
resolved their cases, and as such, Mr. Gaines is currently
responsible for the full restitution amount. Court records
indicate that Defendant Cummins currently owes Mr.
Gaines $6,097.09 in restitution.
(11) For the crime of Assault in the Second [sic] Degree
(Indictment No. 04-CR-00094(1)), Defendant Cummins
was ordered to pay Mr. Joshua Hulker any cost for
medical treatment related to his injuries.
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(12) This Court’s Division 1, June 29, 2006 Order of
Probation omitted the probationary condition of
restitution payment to Mr. Hulker. As a result, this Court
entered its Order Correcting Order of Probation, Sua
Sponte on July 21, 2006. That Order clarified that “as a
condition of probation, the Defendant be jointly and
severally liable, along with his co-defendant to make
restitution to the victim in Indictment No. 04-CR-00094001, Joshua Hulker, to cover the costs of medical
expenses disallowed by the Crime Victims Compensation
Board.
(13) Defendant Cummins was ordered to pay restitution
for the two victims at a rate of $500 [sic] per month.
Defendant Cummins failed to make the scheduled
payments and Mr. Hulker only received $550 from
Defendant Cummins.
(14) The Commonwealth moved on December 1, 2006
for revocation of Defendant Cummins’ probation as a
result of his failure to make proper restitution payments
as ordered by this Court. The Court denied the motion
for revocation, but ordered that the Defendant pay Mr.
Hulker $300 immediately in order to facilitate payment
for a surgery necessitated by his violence. At that time,
the Court also ordered that restitution be commenced
immediately and that Defendant Cummins make $50
monthly payments. The Court also ordered that the
restitution amount should be paid to Mr. Gaines first, and
after his balance was paid, to Mr. Hulker.
(15) Following the show cause hearing, Mr. Hulker
received $300 from Defendant Cummins. Defendant
Cummins’ last restitution payment in the amount of $100
was made in January, 2008. No further payments have
been made. This motion was brought before the Court
following Mr. Hulker’s [sic] non-compliance.
(16) This Court makes the following findings as related
to the conditions of Defendant Cummins’ probation:
(a) Defendant Cummins is liable for restitution in
the amount of $6,097.09 to Mr. Lloyd Gaines, Jr.
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(b) Defendant Cummins is liable to Mr. Joshua
Hulker for the cost of medical expenses related to
his injuries sustained during the commission of his
crime.
(c) Defendant Cummins’ obligation to Mr. Hulker
is reduced by $850 (paid by Defendant Landrum in
completion of his obligation) and $25,000 (paid by
the Crime Victims’ Compensation Board).
(d) As of today’s date, Defendant Cummins is
liable for restitution in the amount of $40,727.79 to
Mr. Hulker.
This Court takes notice that its previous order of
$50 payments per month towards Defendant Cummins’
restitution obligation will extend the obligation for an
indefinite period of time and will not be effective in
making his victims whole again. As such, this Court
orders that Defendant Cummins shall make $500
payments per month beginning June 1, 2008 and shall
continue until such time that his obligations are met. The
Franklin Circuit Clerk shall distribute $250 to each Mr.
Gaines and Mr. Hulker until such time as Mr. Gaines’
restitution is paid in full and then Mr. Hulker shall
receive $500 payments monthly.
In addition, this Court extends Defendant
Cummins’ probation an additional five (5) years from
this date. Should Mr. Hulker incur future medical
expenses, the Commonwealth is to bring the bills to the
Court’s attention and the restitution amounts shall be
adjusted accordingly.
Cummins’s retained counsel filed a motion to alter, amend, or vacate
the above order, requesting an opportunity to be heard on the amount of restitution
he was legally obligated to pay and the amount of his monthly payment. Shortly
thereafter, Cummins’s counsel withdrew, and Cummins filed an affidavit of
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indigence and request for appointment of counsel. The circuit court appointed
counsel to represent Cummins and allowed her time to file a memorandum. In the
memorandum, Cummins argued that his due process rights were violated by the
entry of the May 5, 2008, order as he was not given notice of the order or the
opportunity to be heard; that his contract with the Commonwealth was violated in
that the amount of restitution due was set out as $1600.00 in the plea agreement
and it did not contemplate the payment of future medical expenses; and that the
circuit court lost jurisdiction to amend its judgment ten days after its entry. This
motion was argued before the court on August 20, 2008, when another new
attorney for Cummins addressed the language in the plea agreement concerning the
$1600.00 in restitution. Several months later, the Commonwealth filed a response
to Cummins’s motion. The response contains a lengthy recitation of facts, many of
which are not otherwise contained in the certified record, including the videotaped
record, or supported by any affidavit or other documentary evidence.
On April 6, 2009, the circuit court denied Cummins’s motion and
affirmed the May 5, 2008, order. This appeal now follows.
In his brief, Cummins raises the same arguments that he made in his
motion to alter, amend, or vacate. Namely, that the circuit court abused its
discretion by entering the restitution order two years after it had lost jurisdiction
over the case; that the Commonwealth breached its contract with him, which
violated his due process rights; and that the circuit court violated his due process
rights when it failed to give him notice and an opportunity to be heard at a
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restitution hearing. The Commonwealth disputes each of these arguments in its
brief.
For his first argument, Cummins asserts that the circuit court lacked
jurisdiction to enter the May 5, 2008, order clarifying, as that order was entered
nearly two years after the judgment became final. The Commonwealth argues that
the circuit court had continuing jurisdiction to modify the terms of Cummins’s
probation pursuant to KRS 533.020. Because resolution of this issue concerns a
question of law, we review this matter de novo. A & A Mechanical, Inc. v.
Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).
Cummins describes three situations where a court may properly act
post judgment. On its own motion or by motion of a party, a court has ten days to
amend a judgment pursuant to Kentucky Rules of Civil Procedure (CR) 52.02 or to
order a new trial pursuant to CR 59.04. Neither situation applies to this case. A
court is also permitted to amend a clerical error pursuant to CR 60.01 or Kentucky
Rules of Criminal Procedure (RCr) 10.10. The question, then, is whether the error
corrected by the order on appeal may be considered a clerical error. We hold that
it may not.
RCr 10.10 provides, in pertinent part, as follows:
Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its
own initiative or on the motion of any party and after
such notice, if any, as the court orders.
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The Supreme Court has addressed the application of RCr 10.10,
specifically the difference between a clerical error and a judicial error. In
Cardwell v. Commonwealth, 12 S.W.3d 672 (Ky. 2000), the Court reviewed a
situation where the written judgment did not reflect that sentences were to be
served consecutively, when at the sentencing hearing it was clearly the trial court’s
intention. The Court stated:
[T]he distinction between clerical error and judicial error
does not turn on whether the correction of the error
results in a substantive change in the judgment. Rather,
the distinction turns on whether the error “was the
deliberate result of judicial reasoning and determination,
regardless of whether it was made by the clerk, by
counsel, or by the judge.” Buchanan v. West Kentucky
Coal Company, Ky., 218 Ky. 259, 291 S.W. 32, 35
(1927). “A clerical error involves an error or mistake
made by a clerk or other judicial or ministerial officer in
writing or keeping records. . . .” 46 Am.Jur.2d,
Judgments § 167. The omission in the original judgment
of a provision that Cardwell’s sentence was to run
consecutive with his previous sentence was a mistake
made in reducing the oral judgment to writing. The
omission was not the product of judicial reasoning and
determination. It was a clerical error.
Id. at 674-75.
However, in Viers v. Commonwealth, 52 S.W.3d 527 (Ky. 2001), the
Supreme Court reversed an amended judgment entered by the trial court that
stripped the defendant of jail-time credit for time he spent serving a federal
sentence. The Court held that the error was a judicial one because it was
inconsistent with the oral judgment the trial court rendered at sentencing. It
explained:
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On review, the question of whether an error is “judicial”
or “clerical” turns on whether the amended judgment
embodies the trial court’s oral judgment as expressed in
the record. See Presidential Estates Apartment
Associates v. Barrett, 129 Wash.2d 320, 917 P.2d 100,
103 (1996). If it does, then the error is clerical in that the
amended judgment either corrects language that is
inconsistent with the oral judgment, or supplies language
that was inadvertently omitted from the oral judgment.
See id. at 104. But if it does not, then the error must be
judicial.
Id. at 529.
Turning to the present case, we hold that the circuit court’s entry of
the order clarifying represented a correction of a judicial error as in Viers, not a
clerical one.2 We disagree with the Commonwealth’s assertion that the clerical
error arose from the clerk’s mistake in noting that Cummins had completed his
restitution payments. On the contrary, the order clarifying created an additional
penalty not addressed when the guilty plea and sentencing hearings were held. The
Commonwealth’s written offer and the discussion at the guilty plea hearing clearly
reflect that Cummins accepted the plea based on the requirement that he pay
restitution to Joshua Hulker in the amount of $1600.00, the specific amount
disallowed by the Crime Victims Compensation Board. Despite what the
Commonwealth argued below and in its brief, there is nothing in the record to
reflect that Cummins owed any additional restitution once he had satisfied the
payment of that amount. Unsupported statements by the Commonwealth in its
2
We note that the circuit court previously entered an order amending the order of probation to
properly reflect the correct victim and restitution details. That action did constitute the
correction of a clerical error.
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motion to clarify as to what allegedly took place earlier certainly do not constitute
proof that any additional amounts were due. While this result may appear harsh to
victim Joshua Hulker, the Commonwealth opted to make the offer as it did.
Therefore, the order requiring Cummins to pay an additional $40,727.79 in
restitution to Joshua Hulker constitutes reversible error, as it did not reflect the
circuit court’s original judgment.
The Commonwealth goes on to argue that the circuit court is
statutorily authorized to modify or enlarge the conditions of probation, citing KRS
533.020. While that is true, the circuit court was not permitted to increase the
amount of restitution due by almost $40,000.00. As Cummins points out, KRS
533.030(3) requires that restitution be determined upon the imposition of the
sentence of probation, removing the amount from a condition of probation that is
subject to modification or enlargement.
Based upon our holding that the circuit court committed reversible
error by ordering Cummins to pay additional restitution, we need not address the
remaining arguments.
For the foregoing reasons, the Franklin Circuit Court’s May 5, 2008,
order clarifying and April 6, 2009, order denying the motion to alter, amend, or
vacate are hereby reversed, and this matter is remanded with directions that the
order clarifying be vacated and that the record reflect that Cummins has satisfied
his restitution to Joshua Hulker.
TAYLOR, CHIEF JUDGE, CONCURS.
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HENRY, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
HENRY, SENIOR JUDGE, DISSENTING: I respectfully dissent. I
cannot find in KRS 533.030 language which in the majority’s view so tightly ties a
trial court’s hands when ordering restitution. Nor can I find a case of our Court or
the Kentucky Supreme Court interpreting the statute in such a narrow fashion with
the lone exception of one unpublished opinion of the Supreme Court in which a
badly fragmented Court, citing as its sole authority a 1939 case which preceded
KRS 533.030 by decades and never mentioned restitution, made a finding similar
to that put forth here. Justice Scott dissented in that case, and like Justice Scott I
note that the statute specifically provides for restitution for a victim’s medical
expenses “in the full amount of the damages.” The only statutory limit on
restitution I can find is $100,000 in the case of medical expenses, and there is no
proof that the expenses in this case approached that amount. It is to me incredible
that Cummins entered this plea without knowing that he would be required to pay
Joshua Hulker’s medical expenses to the extent that they exceeded the amount of
Crime Victims’ Compensation. Clearly, Cummins’s trial counsel bargained for a
favorable plea deal based upon his paying Gaines’ and Hulker’s expenses, and now
it looks as though he will be relieved of even that responsibility. I do not believe
that the General Assembly intended KRS 533.030 to say that thugs may break in
and beat a person about the head and face so severely that surgery is required, and
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the criminals cannot be required to pay the victim’s damages if those damages
cannot be fully ascertained at the time of sentencing. Therefore, I dissent.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Amy Robinson Staples
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
REPLY BRIEF FOR APPELLANT:
Timothy G. Arnold
Assistant Public Advocate
Frankfort, Kentucky
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