JACKSON (MITCHELL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001522-MR
MITCHELL JACKSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NOS. 07-CR-003265, 07-CR-003670, & 08-CR-000504
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES, AND ISAAC,1 SENIOR
JUDGE.
MOORE, JUDGE: Mitchell Jackson appeals the judgments of the Jefferson
Circuit Court convicting him of: first-degree illegal possession of a controlled
substance (two counts); tampering with physical evidence; resisting arrest; firstdegree fleeing or evading police (two counts); illegal use or possession of drug
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Senior Judge Sheila R. Isaac, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
paraphernalia (two counts); theft by unlawful taking over $300 (two counts); thirddegree criminal trespass; reckless driving; second-degree fleeing or evading police;
first-degree criminal mischief (two counts); fraudulent use of a credit card; and
being a first-degree persistent felony offender (PFO-1st). After a careful review of
the record, we affirm because the circuit court properly denied Jackson’s motion to
suppress; Jackson’s sentences were properly ordered to be served consecutively to
his prior sentences; and the Commonwealth did not breach its plea agreements.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jackson was charged in three indictments. In case number 07-CR3265, he was charged with: first-degree illegal possession of a controlled
substance, schedule II (cocaine); tampering with physical evidence; and resisting
arrest. In case number 07-CR-3670, Jackson was charged with: first-degree illegal
possession of a controlled substance, schedule II (cocaine) – subsequent offender;
first-degree fleeing or evading police (motor vehicle); and illegal use or possession
of drug paraphernalia – subsequent offender. Finally, in case number 08-CR-0504,
he was charged with: two counts of theft by unlawful taking over $300; illegal use
or possession of drug paraphernalia – subsequent offender; third-degree criminal
trespass; reckless driving; first-degree fleeing or evading police (motor vehicle);
second-degree fleeing or evading police (pedestrian); two counts of first-degree
criminal mischief; fraudulent use of a credit card; and PFO-1st.
Jackson entered a guilty plea in case number 08-CR-0504 and
conditional guilty pleas in case numbers 07-CR-3265 and 07-CR-3670. All of
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those guilty pleas were entered pursuant to North Carolina v. Alford,2 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The two conditional guilty pleas were
conditioned on Jackson reserving his right to appeal the denial of his motions to
suppress in those cases.
Jackson was sentenced to a total of three years of imprisonment in
case number 07-CR-3265, two years in case number 07-CR-3670, and three years
in case number 08-CR-0504, to be served consecutively for a total of eight years of
imprisonment. Additionally, this eight-year sentence was ordered to be served
consecutively to a twenty-year sentence that Jackson was apparently on probation
for at the time he committed the offenses in the three cases presently before us.
Jackson now appeals, contending that: (a) Louisville Metro Officer
Beth Bizzell’s search of Jackson was unreasonable and went beyond what is
permissible as a pat down for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), so the fruits of the search should be suppressed; (b)
the court should have ordered Jackson’s sentences in these cases to be served
concurrently to his prior twenty-year sentence because the revocation of his
probation on the twenty-year sentence occurred more than ninety days after the
grounds for revocation became known; and (c) the Commonwealth breached the
plea agreement, so the judgments should be vacated and remanded. Other facts
will be set forth as needed to address these claims, infra.
II. ANALYSIS
2
This type of plea, known as an Alford plea, “permits a conviction without requiring an
admission of guilt and while permitting a protestation of innocence.” Wilfong v. Commonwealth,
175 S.W.3d 84, 103 (Ky. App. 2004).
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A. CLAIM REGARDING MOTION TO SUPPRESS
Jackson first contends that in case number 07-CR-3265, Officer Beth
Bizzell’s search of him was unreasonable and went beyond what is permissible as a
pat-down search for weapons under Terry, 392 U.S. 1, 88 S. Ct. 1868, and
therefore, the fruits of the search should be suppressed. Specifically, Jackson
alleges: he could not lawfully be searched incident to the issuance of a citation for
a traffic violation; Officer Bizzell stated no basis to believe that Jackson was armed
and dangerous; the frisk, which was not limited to Jackson’s outer clothing, went
beyond that allowed by Terry; and the “plain feel” exception to the warrant
requirement does not apply.
The Commonwealth contends that these specific arguments were not
presented to the trial court. The Commonwealth acknowledges that although
Jackson’s motion stated that “ʽthe initial stop was illegal because there was no
reasonable suspicion to stop and question him’ and that ‘even if there was
reasonable suspicion to stop and question Mr. Jackson, there was no similar
justification for searching Mr. Jackson’s person’ . . . his argument to the court was
limited to the former that the initial stop was illegal.” Therefore, the
Commonwealth asserts that this Court should not consider Jackson’s arguments
concerning the denial of his motion to suppress because Jackson now concedes that
the initial stop was legal, and the Commonwealth contends that Jackson cannot
present different issues on appeal from those he presented to the circuit court.
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We agree with the Commonwealth to the extent that Jackson’s
argument to the circuit court during the suppression hearing focused on his claim
that the stop of his vehicle was improper. Jackson now concedes on appeal that the
stop of his vehicle was proper because of the excessive window tinting. However,
Jackson also alleged in his motion to suppress that
[e]ven if there was reasonable suspicion to stop and
question Mr. Jackson, there was no similar justification
for searching Mr. Jackson’s person or automobile, in that
he provided no reasonably articulable suspicion to the
officer that would justify an investigation as to what he
may or may not be in possession of or any other restraint
on his liberty.
Therefore, based on this allegation from Jackson’s motion to suppress, we find that
his appellate claims asserting that he could not lawfully be searched incident to the
issuance of a citation for a traffic violation and that Officer Bizzell stated no basis
to believe that Jackson was armed and dangerous, are preserved for appellate
review. However, Jackson’s appellate claims alleging that the frisk went beyond
that allowed by Terry because it was not limited to his outer clothing and that the
“plain feel” exception to the warrant requirement does not apply were not
preserved for appellate review. Regardless, even if these claims had been
preserved, they lack merit, as discussed, infra.
The circuit court denied Jackson’s motion to suppress, holding as
follows: “P.O. [presumably, “police officer,”] conducted valid traffic stop due to
def[endant’s] excessive window tinting. P.O. properly conducted Terry stop [and]
pat down for weapons.”
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We review the denial of a motion to suppress as follows:
If the trial court’s findings of fact are supported by
substantial evidence, then they are conclusive. We
conduct de novo review of the trial court’s application of
the law to the facts. We review findings of fact for clear
error, and we give due weight to inferences drawn from
those facts by resident judges and local law enforcement
officers.
Hallum v. Commonwealth, 219 S.W.3d 216, 220 (Ky. App. 2007) (internal
quotation marks and citations omitted).
Officer Bizzell testified during the suppression hearing that in late
July 2007, she saw Jackson’s vehicle traveling down the road and that it had
excessively tinted windows. She drove her cruiser behind Jackson’s vehicle with
the intention to pull it over for the excessive window tint. She noted that Jackson
made two left turns and was preparing to take another left turn, as if he was going
to circle the block. Officer Bizzell was under the impression that Jackson was
driving in that manner to try to avoid her. She then pulled Jackson’s vehicle over
due to the illegally tinted windows.
Officer Bizzell attested that as she approached Jackson’s vehicle,
Jackson rolled down his window, and Jackson appeared extremely nervous, to the
point where he was “visibly sweating.” She testified that Jackson was also
stammering, not talking in a “regular flow,” and his conversation was not a normal,
relaxed way of speaking. Although it was July 31st, Officer Bizzell stated it was
not a particularly warm day. She asked for Jackson’s identification, and she ran
his name through her computer in her cruiser. She discovered that he had prior
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drug charges. Officer Bizzell attested that the neighborhood they were in at the
time was a neighborhood well known for its drug activity.
Officer Bizzell testified that she called for backup because she was
concerned for her safety. She decided to pat Jackson down for a weapon due to his
extreme nervousness. After the other officer arrived, Officer Bizzell asked Jackson
to get out of his car so that she could conduct the pat down. Officer Bizzell
testified that Jackson was cooperative until the officers asked him to put his hands
on the vehicle so they could pat him down, and Jackson did not want to acquiesce.
She attested that Jackson kept pulling away and reaching for his waistband. This
made the officers very nervous, as they were worried he was reaching for a
weapon. Therefore, the officers handcuffed Jackson so that they could pat him
down.
Officer Bizzell conducted the pat down. She testified that when she
conducts pat downs, she typically places her thumb inside the waistband near the
edge to ensure that there are no weapons stuffed inside the waistband. She stated
that this is what she did with Jackson. As she ran her thumb inside his waistband,
she discovered a pouch, which, based on her previous experience as an officer, she
knew contained drugs. She did not know for certain what types of drugs were in
the pouch until she pulled a plastic bag out of Jackson’s waistband. The bag
contained suspected crack cocaine and a couple of pills. After they discovered
these suspected narcotics,3 the officers arrested Jackson. As they were escorting
3
Officer Bizzell testified that lab tests revealed that the pills were not narcotics, but they were
an “unknown substance.”
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Jackson to the cruiser, he jerked away as if he was going to try to get away from
the officer who was escorting him. Nevertheless, Jackson was arrested and
charged in that case with first-degree illegal possession of a controlled substance;
tampering with physical evidence; and resisting arrest.
Pursuant to KRS4 189.110, a person may not operate a motor vehicle
with excessive window tinting. Furthermore, KRS 189.990 provides that a person
who violates KRS 189.110 shall be fined. In the present case, Jackson’s vehicle
was stopped for excessive window tinting. Officer Bizzell testified that when she
approached Jackson after stopping his vehicle, he appeared extremely nervous, and
he was “visibly sweating,” stammering, and not talking in a “regular flow.” This
behavior gave her a reason to believe that Jackson may be armed. “ʽ[P]olice may
order persons out of an automobile during a stop for a traffic violation, and may
frisk those persons for weapons if there is a reasonable belief that they are armed
and dangerous.’” Dunn v. Commonwealth, 689 S.W.2d 23, 27 (Ky. App. 1984),
ordered to be published (Ky. 1985) (quoting Michigan v. Long, 463 U.S. 1032,
1045, 103 S.Ct. 3469, 3478, 77 L.Ed.2d 1201, 1217 (1983)). Therefore, Officer
Bizzell’s act of ordering Jackson to get out of his car and conducting a pat down of
his clothes was proper.
However, Jackson contends that when Officer Bizzell placed her
thumbs inside his waistband and pulled out the plastic bag containing suspected
narcotics, she went beyond what was permissible under Terry. Typically, during
“Terry frisks, an officer may seize any contraband he finds, so long as the illegal
4
Kentucky Revised Statute.
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nature of the contraband is immediately apparent to the plain feel of his hand.”
Commonwealth v. Marshall, 319 S.W.3d 352, 357 (Ky. 2010).
These brief Terry frisks often mature into full-blown
probable-cause-based searches, particularly when an
officer, while conducting a pat down, becomes
immediately aware of contraband, and does so without
manipulation of the object felt, but with the simple plain
feeling of his hand. In other words, under the “plain
feel” doctrine the object must be immediately identifiable
as a weapon or contraband by a simple “pat down”
before it may be legally seized. Once recognized as a
weapon or contraband, an officer may perform a more
invasive search such as entering the pockets of the
suspect or even placing his hands down a suspect’s pants,
wherever the immediately apparent contraband may be.
Marshall, 319 S.W.3d at 357 (internal citations omitted). An officer may not
manipulate an object inside a suspect’s pocket by doing such things as “squeezing”
and “sliding” it to determine that it is contraband or a weapon, in order to justify a
more intrusive search. Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130,
2138, 124 L.Ed.2d 334 (1993). Rather, to justify the more intrusive search, the
officer must have been able to identify the object as a weapon or contraband
simply by conducting a pat down of the suspect’s clothing. Id., 508 U.S. at 379,
113 S.Ct. at 2139.
In the present case, Officer Bizzell attested that after she and the other
officer on the scene asked Jackson to put his hands on the car so that they could
conduct a pat down, Jackson kept pulling away and reaching for his waistband.
Officer Bizzell testified that this made the officers very nervous, as they were
worried he was reaching for a weapon.
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Although an unobtrusive pat down is all that is permitted in a typical
“stop and frisk,” there are occasionally circumstances in a case that permit the
scope of the intrusion to be varied. See Hampton v. Commonwealth, 231 S.W.3d
740, 749-50 (Ky. 2007). For example, the Kentucky Supreme Court in Hampton
stated as follows:
When an officer sees a suspect stow an object in an item
of clothing, such as a shoe, where it could not be revealed
by a mere pat-down, a broader search may be allowed if
concern about safety is sufficiently high. The trial court
[in the Hampton case] specifically found that the item the
officers observed [Hampton] hiding in his shoe was
unidentifiable and could have been a weapon
(specifically a knife). In such a situation, it is not
unreasonable for the officer to slightly expand the scope
of the pat-down to include reaching into the shoe to
determine the nature of the object hidden there.
Hampton, 231 S.W.3d at 750.
Although a search inside the suspect’s waistband typically would not
be justified in a Terry stop, it was not unreasonable, given Jackson’s suspect
conduct, for Officer Bizzell to run her thumb inside Jackson’s waistband during the
pat down to ensure there was no weapon. While placing her thumb inside
Jackson’s waistband, she discovered a plastic bag which she knew, based on her
previous experience as an officer, contained drugs. “[I]f while conducting a
legitimate pat-down of a stopped individual . . . the officer discovers contraband
other than weapons, he should not be required to ignore it, and the Fourth
Amendment does not require its suppression.” Dunn, 689 S.W.2d at 27.
Therefore, Officer Bizzell properly seized the drugs she found in Jackson’s
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waistband, and the circuit court did not err in denying Jackson’s motion to
suppress.
B. CLAIM REGARDING CONSECUTIVE SENTENCES
Jackson next asserts that the court should have ordered his sentences
to be served concurrently to the twenty-year sentence he had previously received in
other cases because the revocation of his probation on the twenty-year sentence
occurred more than ninety days after the grounds for revocation became known.
Jackson cites the case of Sutherland v. Commonwealth, 910 S.W.2d 235 (Ky.
1995), in support of his argument.
However, subsequent to the Sutherland opinion, the Kentucky Supreme
Court entered its opinion in Brewer v. Commonwealth, 922 S.W.2d 380 (Ky.
1996). In Brewer, the Supreme Court discussed KRS 533.040 and KRS 533.060.
Kentucky Revised Statute 533.040(3) provides as follows:
A sentence of probation or conditional discharge shall
run concurrently with any federal or state jail, prison, or
parole term for another offense to which the defendant is
or becomes subject during the period, unless the sentence
of probation or conditional discharge is revoked. The
revocation shall take place prior to parole under or
expiration of the sentence of imprisonment or within
ninety (90) days after the grounds for revocation come to
the attention of the Department of Corrections,
whichever occurs first.
However, KRS 533.060(2), states:
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
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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.
As the Kentucky Supreme Court noted in Brewer, “[t]he two statutes clearly
contradict if read in conjunction. . . . Since KRS 533.060 was enacted in 1976, and
KRS 533.040 was enacted in 1974, the former controls.” Brewer, 922 S.W.2d at
382. Therefore, KRS 533.060 is the controlling statute and, according to that
statute, Jackson’s sentences were not permitted to be run concurrently because he
was on probation for at least one felony at the time that he was convicted of the
felonies in the three underlying cases. Consequently, the circuit court did not err in
ordering Jackson’s sentences in the underlying three cases to be run consecutively
to the twenty-year sentence he had received in previous cases.
C. CLAIM REGARDING BREACH OF PLEA AGREEMENTS
Finally, Jackson alleges that the judgments should be vacated and
remanded because the Commonwealth breached the plea agreements. Specifically,
Jackson contends that the plea agreements he entered into with the Commonwealth
each had this provision: “The Commonwealth will take no stand of wether [sic]
this sentence will run concurrent or consecutive to the 20 years in 00CR0667 and
00CR1372.” However, Jackson states that at his sentencing, the Commonwealth
“urged the court to impose consecutive sentences” by saying: “Judge, we’d ask the
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court order to reflect that it must be served consecutively to any sentence he’s
already serving, that the order reflect that.” Jackson acknowledges that this claim
is not preserved for appellate review, but he asks this court to review it,
nonetheless.
The Commonwealth argues that, contrary to Jackson’s allegation,
the Commonwealth specifically asked the court to
sentence in accord with the agreement. And the court did
follow the agreement . . . but the court also sentenced
appellant to eight years for a total of eight years to serve
in addition to whatever other sentence he was serving
which was not a violation of the agreement. After the
judge pronounced that sentence, the Commonwealth
recognizing that the court ordered consecutive sentences
(and the potential problems which might arise if the
judgment was not clear . . .) then requested that the order
reflect that pronouncement that it be served
consecutively.
Thus, the Commonwealth asserts that it did not breach the plea agreements.
Although Jackson’s claim is not preserved for appellate review, we nevertheless
find that it lacks merit; therefore, that it does not amount to palpable error under
RCr5 10.26.
Upon review of the video recorded proceedings, we agree with the
Commonwealth. During the sentencing proceedings, the circuit court stated that
the total eight-year sentence in the three underlying cases was to be served “in
addition to” other sentences Jackson had received, thus implying that the sentences
were to be served consecutively to Jackson’s prior sentences. After the circuit
court made this statement, the Commonwealth merely asked the court to specify in
5
Kentucky Rule of Criminal Procedure.
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its order that the sentences were to be served consecutive to Jackson’s prior
sentences, in order to avoid confusion. In making this request, the Commonwealth
was merely asking the court to clarify the sentence in its written orders of
judgment against Jackson. Therefore, the Commonwealth did not breach its plea
agreement because the court had already sentenced Jackson by the time the
Commonwealth asked for clarification. Consequently, this claim lacks merit.
Accordingly, the judgments of the Jefferson Circuit Court are
affirmed.
LAMBERT, JUDGE, CONCURS.
ISAAC, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
ISAAC, SENIOR JUDGE, DISSENTING: Respectfully, I dissent. I
believe the issue that the search went beyond the scope of that allowed by Terry is
preserved for appellate review. Appellant’s trial court suppression motion stated,
“even if there was reasonable suspicion to stop and question Mr. Jackson, there
was no similar justification for searching Mr. Jackson’s person….” At the
suppression hearing, the Commonwealth argued that the pat-down search was
proper under Terry, and the trial court specifically ruled that the search of the
Appellant’s person did not violate Terry by writing an order on the docket which
stated, “P.O. properly conducted Terry stop & pat down for weapons.” Under these
circumstances, the issue of the alleged improper Terry search is properly before
this court.
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Moving to the merits, the first fact to be considered is the Officer’s
own testimony regarding the Terry pat-down she conducted. She stated,
I went to pat him down and I generally will take my
thumb and put it on the inside to right around the edge
to feel if the gun is stuffed down in there. And when I
did, I felt what I know from my past, because
I’ve been on for a while, to be a package of drugs. I
didn’t know what it was at the time until I actually
pulled it out, and then I knew it was suspected crack
cocaine. (emphasis added)
In this statement, the officer admits to violating two different
components of Fourth Amendment protections. In Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court set out in
detail the limited nature of a constitutionally allowable pat-down in circumstances
where an individual has been stopped for questioning. If certain circumstances
exist, a “limited search of the outer surfaces of his clothing” may be allowed.
Terry, at 16-17. Kentucky courts have followed suit and ruled that only the outer
clothing of a suspect may be touched during a pat-down. In Johantgen v.
Commonwealth, 571 S.W. 2d 110, 112 (Ky. App. 1978), this court stated, “the
extent of a Terry pat-down is quite limited—only a search of outer clothing is
justified unless the officer finds what he believes to be a weapon or anything that
might be used as a weapon. If no weapons are discovered, a Terry search may
proceed no further.” In Commonwealth v Johns, 217 S.W. 3d 190, 195 (Ky. 2006),
the Kentucky Supreme Court reiterates that a Terry pat-down is limited to the
“suspect’s outer clothing.” This “outer surfaces” limitation exists as a proper
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balance between the invasion of the personal security of the individual being
searched and the protection of the officer.
A properly conducted pat-down of the outer services of clothing will
allow an officer to detect a weapon. In this case, Officer Bizzell went beyond what
was necessary for her own protection in feeling around the inside of the waistband
of the Appellant’s pants. This pat-down involving the interior parts of the
Appellant’s clothing invalidates a proper Terry protective search. “If the protective
search goes beyond what is necessary to determine if the suspect is armed, it is no
longer valid under Terry and its fruits will be suppressed.” Minnesota v. Dickerson,
508 U.S. 366, 376, 113 S. Ct. 2130, 124 L.Ed. 2d 334 (1993).
The officer’s improper pat-down led her to feel a corner edge of a
plastic baggie. She testified that she pulled the baggie out not knowing what it was.
If during a lawful pat-down, an object is felt, it may not be extracted from the
person unless the incriminating character of the object is immediately apparent to
the officer. She testified that it was not. In these circumstances, the courts have
been clear that the “plain feel” exception to a warrant requirement is not available.
Commonwealth v. Crowder, 884 S.W. 2d 649 (Ky. 1994), Minnesota v. Dickerson,
508 U.S. 366 (1993) and Jones, supra. However, the “plain feel” argument need
not even be addressed since the initial pat-down which led the officer to feel the
corner of the baggie was not a valid Terry protective search.
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Based upon the illegal search of the Appellant, the resulting evidence
obtained must be suppressed and I would reverse and remand the case to the trial
court for proceeding consistent with that holding.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Chief Appellate Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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