MAPLES (JOHN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000407-MR
JOHN FRANKLIN MAPLES, JR.
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 07-CR-00285
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: DIXON AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: John Franklin Maples, Jr. appeals from the
judgment of the Bell Circuit Court convicting him of third-degree possession of a
controlled substance, second offense; possession of drug paraphernalia, second
1
Senior Judge Joseph E. Lambert 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.
offense; driving under the influence, first offense (with aggravating
circumstances); and being a second-degree persistent felony offender. Appellant
argues that his convictions for possession of a controlled substance and for
possession of drug paraphernalia violate the constitutional prohibition against
double jeopardy. He also raises a number of contentions regarding his sentencing.
Upon review of the record, we affirm Appellant’s convictions but reverse and
remand for a new sentencing phase for reasons that follow.
Facts and Procedural History
On June 8, 2007, Middlesboro Police Officer Joey Brigmon was
travelling west on Nolltown Road in Bell County when he observed an eastbound
Toyota Supra being driven by Appellant cross the center line into the westbound
lane of traffic. Officer Brigmon turned his cruiser around and began pursuing
Appellant. As Appellant turned into a private driveway at an apartment building,
Officer Brigmon activated his blue lights.
When Officer Brigmon stopped his car, he observed Appellant and his
passenger, Roy Baker, Jr., climbing a flight of steps up to a porch. Officer
Brigmon then asked them to come back down the steps. As Appellant turned to
walk towards Officer Brigmon, the officer observed him toss something out of his
pocket onto the porch. That item was later identified as a clear plastic bag
containing a green leafy substance and a cellophane wrapper. Within the wrapper
were nine blue oval pills and nine yellow round pills. Officer Brigmon observed
that Appellant had glassy, bloodshot eyes and was unsteady on his feet. Appellant
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then failed a series of field sobriety tests and admitted that he had smoked
marijuana earlier in the day.2 He was then arrested for driving under the influence.
In addition to the drugs found on the steps, 225 pink oblong pills were found under
the hood of the Supra during a search incident to arrest.3 All of the pills taken into
evidence were later identified by a Kentucky State Police forensics scientist as
being Schedule IV controlled substances.
Appellant was subsequently tried and found guilty of operating a
motor vehicle while under the influence, first offense (with aggravating
circumstances); third-degree possession of a controlled substance, second offense;
and possession of drug paraphernalia; second offense. The jury further found that
Appellant was a second-degree persistent felony offender (PFO).4 Per the jury’s
recommendations, the trial court sentenced Appellant to 48 hours’ imprisonment
and a $200.00 fine for the DUI conviction; a five-year sentence on the conviction
for possession of a controlled substance, enhanced to ten years pursuant to the
finding that Appellant was a second-degree PFO; and a five-year sentence on the
conviction for possession of drug paraphernalia. The sentences for the latter two
convictions were also ordered to run consecutively to one another. Thus,
Appellant was sentenced to a total of fifteen years’ imprisonment – the maximum
2
Appellant did not consent to testing of his blood, breath, or urine.
3
The Supra was registered in Roy Baker, Jr.’s name.
4
In support of its claim that Appellant was a second-degree PFO, the Commonwealth presented
evidence of three prior felony convictions against Appellant that had occurred between 1994 and
2002.
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possible sentence. Appellant was further ordered to pay $351.00 in court costs and
fees despite his status as an indigent defendant. This appeal followed.
Issues
I.
Appellant first argues that his convictions for possession of a
controlled substance and for possession of drug paraphernalia violate the
prohibitions against double jeopardy contained within the Fifth Amendment to the
United States Constitution5 and Section 13 of the Kentucky Constitution.6
Appellant specifically challenges his conviction for possession of drug
paraphernalia, arguing that he was subjected to double jeopardy when he was
convicted for possessing pills and marijuana in addition to being convicted of
possessing the baggie and cellophane wrapper within which those drugs were
contained. Although this issue is unpreserved for appellate review, we are
nonetheless authorized to address it. See Beaty v. Commonwealth, 125 S.W.3d
196, 210 (Ky. 2003); Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977),
overruled on other grounds by Dixon v. Commonwealth, 263 S.W.3d 583 (Ky.
2008).
The seminal double jeopardy case of Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) provides that “where the same act
5
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides
that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”
6
Section 13 of the Kentucky Constitution provides, in relevant part: “No person shall, for the
same offense, be twice put in jeopardy of his life or limb[.]”
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or transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.” Id., 284 U.S. at
304, 52 S.Ct. at 182. This standard for evaluating double jeopardy claims has been
adopted by Kentucky courts and by the Kentucky General Assembly. See Dixon,
263 S.W.3d at 588; Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996),
modified on denial of reh’g, 947 S.W.2d 805 (Ky. 1997); KRS 505.020.
Accordingly, our inquiry is focused on whether possession of a controlled
substance and possession of drug paraphernalia each “requires proof of a fact
which the other does not.”
Appellant acknowledges that on the surface, the Kentucky Supreme
Court’s opinion in Hampton v. Commonwealth, 231 S.W.3d 740 (Ky. 2007)
appears to resolve this issue in the Commonwealth’s favor. In Hampton, the
defendant was found in possession of a pipe containing cocaine residue and was
ultimately convicted of both possession of a controlled substance and possession of
drug paraphernalia. The cocaine residue was the basis for his conviction for
possession of a controlled substance and was also used as evidence to categorize
his pipe as drug paraphernalia. The defendant argued that his double jeopardy
rights were violated because possessing the residue of cocaine on the pipes was
necessarily an included offense of possession of drug paraphernalia because one of
the factors in considering whether the pipes were drug paraphernalia was whether
there was any residue of controlled substances on them. Id. at 751.
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Rejecting Appellant’s argument, the Supreme Court held that “the
elements of possession of a controlled substance are not contained in possession of
drug paraphernalia, and vice versa.” Id. It justified this conclusion by nothing that
“[t]he elements of possession of drug paraphernalia are possession of an object that
is drug paraphernalia with the intent to use it to consume drugs. Possession of a
controlled substance requires knowing and unlawful possession of a controlled
substance.” Id. The Supreme Court further explained:
Appellant’s theory only works if possession of a
controlled substance (in the form of cocaine residue on
the alleged paraphernalia) is an element of the offense of
possession of drug paraphernalia. It is not. The presence
of residue is merely one of a nonexclusive list of factors
found in KRS 218A.510 to be considered in determining
whether a given object is drug paraphernalia. While such
residue on the pipes is particularly compelling evidence
that they were drug paraphernalia, the Commonwealth
was not required to prove this fact to secure a conviction
for possession of paraphernalia. Other evidence, whether
of one of the other factors listed in KRS 218A.510 or any
“other logically relevant factors,” could have been
presented and would have been sufficient to prove the
paraphernalia element of the crime.
The fact that proof of the presence of cocaine residue was
the basis of the possession of a controlled substance
conviction, constituting one of the crucial elements of
that offense, does not change this. A single item of
evidence may be used to support proof of multiple crimes
so long as each crime has an element that the other does
not. Because the crimes in this case had separate
elements, and in fact had no common elements,
Appellant’s convictions do not violate double jeopardy.
Id. at 751-52. Consequently, application of Hampton to this case would appear to
compel a result in favor of the Commonwealth.
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Appellant contends, though, that his case is distinguishable from
Hampton. In so doing he relies largely upon the opinion of the Court of Appeals of
New Mexico in State v. Almeida, 185 P.3d 1085 (N.M. Ct. App. 2008). In
Almeida, the New Mexico court was confronted with a set of facts similar to those
at play here, i.e., a defendant was convicted of both possession of a controlled
substance and possession of drug paraphernalia for possessing drugs in a plastic
baggie. The New Mexico court acknowledged that the prosecutions for drug
possession and possession of a controlled substance did not constitute double
jeopardy under Blockburger because they each required an element of proof not
required by the other. Id. at 1087. However, the New Mexico court nonetheless
concluded that the convictions violated the defendant’s double jeopardy rights
because it did not believe that the New Mexico legislature intended pyramid
penalties for possessing drugs and drug paraphernalia when the drug paraphernalia
in question consisted only of a common, everyday item and was identifiable as
such only because it was a container for a personal supply of a controlled
substance. Id. at 1090. In other words, the New Mexico court concluded that the
possession of a baggie to hold drugs merged with the offense of possessing drugs
and that the legislature did not intend to punish them as distinct wrongs. The court
distinguished this scenario from one in which a baggie of drugs was found next to
a pipe or when the drugs were found inside the pipe or inside a syringe, noting that
two punishments would appear to be permitted under those circumstances. Id.
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Appellant argues that because the presence of drugs was the only
evidence that the plastic baggie and cellophane in his possession were drug
paraphernalia, the reasoning of Almeida should be applied here. However, our
reading of Almeida reflects that New Mexico courts rely upon a standard for
analyzing double jeopardy claims strikingly different from the one used in
Kentucky. The Kentucky Supreme Court has held that “our Blockburger-guided
double jeopardy analysis should focus only on whether each statute, on its face,
contains a different element.” Dixon, 263 S.W.3d at 590-91. Consequently, in
Kentucky the Blockburger test is definitive on the question of whether double
jeopardy exists in a particular case.
In contrast, New Mexico courts utilize a two-part test when a
defendant claims that he is being subjected to multiple punishments for the same
offense. The first prong of that test examines “whether the conduct underlying the
offenses is unitary,” while the “second part focuses on ... whether the legislature
intended to create separately punishable offenses.” Almeida, 185 P.3d at 1087,
quoting Swafford v. State, 810 P.2d 1223, 1233 (N.M. 1991). From our reading of
Almeida, legislative intent appears to be a primary – if not the primary – concern of
New Mexico courts in considering double jeopardy claims. Those courts utilize
the Blockburger test only “[w]hen a clear expression of legislative intent is absent”
as to the question of whether the legislature intended to create separately
punishable offenses. Id. Moreover, even when Blockburger analysis establishes
that each criminal statute at issue requires an element of proof not required by the
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other, this creates only a presumption that the legislature intended to punish the
offenses separately. Id. This “presumption is not conclusive; it may be overcome
by ‘other indicia of legislative intent, including the language, history, and subject
of the statutes, the social evils sought to be addressed by each statute, and the
quantum of punishment prescribed by each statute.’ ” Id., quoting State v.
Armendariz, 141 P.3d 526, 532 (N.M. 2006). “If those factors reinforce the
presumption of distinct, punishable offenses, then there is no violation of double
jeopardy.” Id., quoting Armendariz, 141 P.3d at 532-33.
Consequently, Almeida has no applicability to the case before us as
we are limited to examining Appellant’s double-jeopardy claim under the elements
set forth in Blockburger. See Dixon, 263 S.W.3d at 590-91. As such, Appellant’s
constitutional arguments must fail, per Hampton, since he was convicted under two
statutes that have no common elements, thereby satisfying the test set forth in
Blockburger and Burge. We further note that under KRS 218A.510(4), the
proximity of an item to a controlled substance is a relevant factor in classifying an
item as drug paraphernalia. Thus, the fact that the plastic baggies and cellophane
wrappers in this case contained drugs actually supports their classification as drug
paraphernalia. Moreover, a single item of evidence may be used to support
multiple convictions without running afoul of the double jeopardy prohibition.
Hampton, 231 S.W.3d at 752. Accordingly, we hold that Appellant’s convictions
for possession of a controlled substance and for possession of drug paraphernalia
do not run afoul of the constitutional protections against double jeopardy afforded
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by the Fifth Amendment to the United States Constitution and Section 13 of the
Kentucky Constitution.
II.
Appellant next raises a number of arguments relating to information
presented during the sentencing phase of his trial. Appellant concedes that none of
the issues presented in this context are preserved for appeal and therefore must be
analyzed under Kentucky Rules of Criminal Procedure (RCr) 10.26 for palpable
error.7 “Under this rule, an error is reversible only if a manifest injustice has
resulted from the error. That means that if, upon consideration of the whole case, a
substantial possibility does not exist that the result would have been different, the
error will be deemed nonprejudicial.” Graves v. Commonwealth, 17 S.W.3d 858,
864 (Ky. 2000), quoting Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky.
App. 1986). “[T]he required showing is probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to due process of law.”
Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Appellant first argues that the Commonwealth violated KRS 532.055
by introducing evidence of four convictions that were a little more than two weeks
7
RCr 10.26 provides: “A palpable error which affects the substantial rights of a party may be
considered by the court on motion for a new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.”
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old during the sentencing portion of trial. The convictions were for being a felon
in possession of a handgun, receiving a stolen firearm, receiving stolen property
over $300.00, and being a second-degree PFO. They were entered on July 7, 20088
by the Bell Circuit Court and were introduced for truth-in-sentencing purposes
pursuant to KRS 532.055. That statute provides, in relevant part, that after a guilty
verdict is returned, “[e]vidence may be offered by the Commonwealth relevant to
sentencing including ... [t]he nature of prior offenses for which he was
convicted[.]” KRS 532.055(2)(a)(2). However, “a prior conviction may not be
utilized under KRS 532.055 ... unless: (1) The time for appealing the conviction
has expired without appeal having been taken, or (2) Matter of right appeal has
been taken pursuant to § 115 of the Constitution of Kentucky and the judgment of
conviction has been affirmed.” Cook v. Commonwealth, 129 S.W.3d 351, 365
(Ky. 2004), quoting Melson v. Commonwealth, 772 S.W.2d 631, 633 (Ky. 1989).
Pursuant to RCr 12.02(3) an appeal must be taken within thirty days
of the date of the judgment. Accordingly, Appellant’s time to appeal the
convictions in question had not run as of the time at which they were introduced in
the subject trial, and they were, therefore, improperly admitted. Appellant
contends that the introduction of these convictions was prejudicial because he
received the maximum possible sentence of imprisonment and that a new
sentencing phase is merited.
8
The sentencing phase of Appellant’s trial took place on July 24, 2008.
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The Commonwealth concedes that these convictions were erroneously
admitted but argues that the error does not rise to the level of palpable error
because the jury also heard properly-admitted evidence of three previous felony
convictions and two previous misdemeanor convictions against Appellant. The
admissible evidence supported the jury’s determination that Appellant was a PFO,
and we agree with the Commonwealth that it also could have been enough to lead
the jury to impose the maximum possible sentence – the introduction of the July
2008 convictions notwithstanding. Thus, this error, standing alone, is not enough
to merit a new sentencing phase.
Appellant next claims that his sentencing was tainted by false
information presented by the Commonwealth regarding parole eligibility. At
sentencing, the Commonwealth explained to the jury during its closing argument
that it was required to set a sentence of one to five years for the possession of a
controlled substance conviction and that it could enhance this sentence to between
five and ten years if it found Appellant to be a PFO. The Commonwealth further
explained that the sentence for possession of drug paraphernalia was also one to
five years but that this offense could not be enhanced by the PFO charge. The
Commonwealth also advised the jury that the maximum sentence that could be
imposed was fifteen years’ imprisonment. The Commonwealth then made the
following comments regarding newly-enacted parole guidelines and their effect on
Appellant’s parole eligibility:
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One final note – parole eligibility. No one can tell you
when Mr. Maples will make parole. That is up to the
parole board. And the new, just-enacted parole eligibility
chart, which I have in my hand, a certified copy, marked
exhibit – Commonwealth’s exhibit 25 – has new
guidelines. The low used to be twenty percent, [but] as
of July 15th, I guess, or mid-July – whatever – it’s now
fifteen percent. Now what that means is, if you fix a
sentence of one year, he is eligible for parole in two
months. If you fix a sentence of five years, he is eligible
for parole in nine months. Doesn’t say he’ll get it,
doesn’t say he won’t. And the legislature says you’re
entitled to know that when you fix a sentence. So even if
you fixed a maximum sentence, you are entitled to
consider parole eligibility.
These comments were intended to reflect recent changes to parole
eligibility guidelines made by the General Assembly via 2008 Ky. Acts Chap. 127
(H.B. 406) Part I § I (1)(6), which provided:
Review of Cases: Notwithstanding 501 KAR 1:30
Section 3(1)(a), a nonviolent offender convicted of a
Class D felony with an aggregate sentence of one to five
years confined to a state penal institution or county jail
shall have his or her case reviewed by the Parole Board
after serving 15 percent or two months of the original
sentence, whichever is longer.9
However, the Commonwealth failed to explain to the jury that the referenced
changes applied only to those nonviolent offenders who had received sentences of
between one and five years. The Commonwealth did not address how Appellant’s
parole eligibility would be affected if the jury found him to be a PFO and enhanced
his sentence. The Commonwealth now acknowledges that because Appellant was
determined to be a second-degree PFO and was given a sentence of ten years’
9
These changes were codified in KRS 439.340(3)(a).
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imprisonment for possession of a controlled substance, he is eligible for parole
only after serving twenty percent of his sentence – not fifteen percent.
The Commonwealth denies that any false information on the issue of
parole eligibility was given to the jury, but it admits that the statements in question
were ambiguous and that the jury may have taken them to mean “that the new
parole eligibility guidelines would be in effect no matter what sentence the jury
imposed.” There is no indication that the prosecution acted in bad faith in this
case, but its comments to the jury clearly suggested that Appellant would be
eligible for parole after serving fifteen percent of his sentence. Moreover, the
Commonwealth emphasized that the jury was entitled to consider parole eligibility
even if a maximum sentence were imposed. Thus, the Commonwealth obviously
wished to impart to the jury the import of this information. Consequently, we are
compelled to conclude that the statements regarding parole eligibility were
incorrect in this context.
With this said, the question is whether such error rises to the level of
palpable error. As a general rule, “[t]he use of incorrect, or false, testimony by the
prosecution is a violation of due process when the testimony is material.... This is
true with regard to the good faith or bad faith of the prosecutor.” Robinson v.
Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005). The test for materiality when the
prosecution knew or should have known that the testimony was false is whether
“there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.” Id., quoting United States v. Agurs, 427 U.S. 97, 103, 96
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S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). While the statements made here came
from the prosecutor during closing and not from actual testimony, we believe they
are still subject to the aforementioned analysis.
Robinson establishes that a sentence may be reversed and a new
sentencing phase ordered where false statements offered during a sentencing phase
are found to be material – even where there is a lack of preservation. See id. The
Commonwealth argues that in light of Appellant’s prior criminal history and the
speed with which the jury agreed to impose the maximum possible sentence, there
is no reasonable likelihood that the statements in question could have affected the
jury’s decision. Thus, the Commonwealth contends, palpable error did not occur.
While it is true that the Commonwealth presented several other factors
that might have persuaded the jury to impose the maximum sentence, we cannot
ignore the fact that the jury was presented with incorrect or misleading parole
eligibility information and improperly-introduced evidence of four other
convictions that had occurred only two weeks earlier. Even assuming that each
one of these things, standing alone, would not merit a new sentencing phase, an
accumulation of such errors may certainly do so. See, e.g., Funk v.
Commonwealth, 842 S.W.2d 476, 483 (Ky. 1992); Peters v. Commonwealth, 477
S.W.2d 154, 158 (Ky. 1972). The Commonwealth presumably called the jury’s
attention to these items because of the possibility that they could affect the jury’s
sentencing decision. As was the case in Robinson, supra, the question is whether
the subject information “influenced the jury to render a sentence greater than what
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it might otherwise have given[.]” Robinson, 181 S.W.3d at 38. As the Kentucky
Supreme Court concluded therein, “[w]e believe it did and, for sure, can't say it
didn’t.” Id. Consequently, we believe that a reasonable likelihood exists that the
jury was improperly influenced by these items.
The Supreme Court’s decision in Robinson v. Commonwealth leaves
no doubt that neither failure of preservation nor good-faith error will excuse
materially-false information where “there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.” Id., quoting Agurs,
427 U.S. at 103, 96 S.Ct. at 2397. Henceforth, prosecutors should be forewarned
that if they intend to use parole-eligibility information, its accuracy will be
subjected to an exacting standard. This is true even if their statements to the jury
are ambiguous but subject to misconstruction. As such, we reverse the portion of
the Bell Circuit Court’s order relating to sentencing and remand this matter to the
trial court for a new sentencing phase and for sentencing on all convictions.
Appellant finally contends that the trial court erred by ordering him to
pay a $200.00 fine for his misdemeanor conviction and $151.00 in court costs
because of his status as an indigent defendant. The trial court found Appellant to
be indigent and appointed a public defender to represent him at trial. Moreover,
the trial court granted Appellant the right to proceed in forma pauperis on appeal.
The Commonwealth concedes that Appellant’s contention is correct because
neither fines nor court costs may be levied upon defendants who are found to be
indigent. See KRS 534.040(4); KRS 31.110(1)(b); KRS 23A.205(2).
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Consequently, the trial court clearly erred in imposing a fine and court costs upon
Appellant. Thus, we reverse the portion of Appellant’s sentence whereby he was
ordered to pay a fine and court costs.
Conclusion
For the foregoing reasons, Appellant’s convictions are affirmed;
however, the sentence imposed for those convictions is reversed and this case is
remanded to the Bell Circuit Court for a new sentencing phase of trial in
accordance with the contents of this opinion.
DIXON, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General
David B. Abner
Assistant Attorney General
Frankfort, Kentucky
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