DANIEL LYNN CALDWELL v. COMMONWEALTH OF KENTUCKY and GERALD DELONG v. COMMONWEALTH OF KENTUCKY and DAMON McCORMICK v. COMMONWEALTH OF KENTUCKY
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July 30, 2004, 2:00 p.m.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-000356-MR
DANIEL LYNN CALDWELL
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 02-CR-00110
COMMONWEALTH OF KENTUCKY
APPELLEE
and
NO. 2003-CA-001896-MR
GERALD DELONG
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NO. 02-CR-00210
COMMONWEALTH OF KENTUCKY
APPELLEE
and
NO. 2003-CA-001767-MR
DAMON McCORMICK
v.
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 00-CR-00009
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
** ** ** ** ** ** ** **
BEFORE:
Judge.
COMBS, Chief Judge; TAYLOR, Judge; and EMBERTON,1 Senior
COMBS, CHIEF JUDGE.
On June 8, 2004, this Court conducted a
hearing in Appeal Number 2003-CA-000356-MR, Caldwell v.
Commonwealth (Caldwell), and in Appeal Number 2003-CA-001896-MR,
Delong v. Commonwealth (Delong), as to why counsel for appellant
in these cases, Dennis M. Stutsman for the Office of Public
Advocacy (OPA), should not be held in contempt for failure to
comply with previous orders of this Court and for failure to
timely file the brief for appellant in each case.
Appeal number
2003-CA-001767-MR, McCormick v. Commonwealth (McCormick) is
currently pending before the Court on response to a show cause
order almost identical in nature to the show cause order issued
in Delong.
Therefore, the Court has elected to address and to
dispose of the procedural aspects of McCormick as well in this
opinion and order.
In addition to Mr. Stutsman’s argument, comments were
presented to the court by Erwin W. Lewis, Public Advocate;
1
Senior Judge Thomas D. Emberton sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
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Rebecca Diloreto, Post-trial Services Division Director of the
Office of Public Advocacy; and Margaret Case, Appeals Branch
Manager.
The focus of the hearing was the persistent disregard
by Mr. Stutsman of orders of this Court regarding procedural
steps in the appellate process and a flagrant disobedience of a
specific order to appear before this panel on April 6, 2004, to
explain his failure to file the brief for appellant in Caldwell
within the time limitation set out in this Court’s order of
March 23, 2004.
In both the written responses to our show cause order
and their oral statements at the June 8 hearing, Mr. Stutsman
and his supervisors at OPA contended that his repeated failure
to comply with orders of this Court had been occasioned by
excessive workload and budgetary considerations in the Office as
a whole.
This Court is both concerned and sympathetic as to the
budgetary constraints faced by OPA and the expanded workload
necessary to adequately serve an increasing number of indigent
criminal defendants and appellants.
However, these
considerations do not suffice to provide an acceptable
explanation for Mr. Stutsman’s longstanding pattern of simply
ignoring procedural deadlines and specific orders of this Court.
Despite similarly heavy caseloads, the majority of
assistant public advocates render extraordinarily effective
assistance to indigent appellants in a timely and efficient
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manner.
Budgetary constraints do not constitute a legitimate
excuse for the failure of Mr. Stutsman’s supervisors at OPA to
provide even a minimum level of acceptable oversight for those
attorneys who routinely fail to comply with the rules of
appellate practice.
Their conduct with respect to Court orders
imperils the reputation of the Office and severely compromises
the competency of representation that their clients are entitled
to expect.
Central to our consideration is the reasoning of the
Supreme Court of Kentucky in Commonwealth v. Wine2 in assessing
the harmful impact of inordinate delay on the functioning of the
Court system and the rights of criminal appellants:
This case aptly illustrates the need for
enforcement of procedural rules relating to
appeals. It commenced in 1978 with an
indictment, after considerable delay a trial
was had in 1979, and it has now languished
on various appeals for five and one-half
years. It has encountered delay in trial,
delay in preparation of the record on
appeal, and delay in the filing of appellate
briefs which finally resulted in the
dismissal of the appeal. . . .
. . . .
This case, and others like it, has a
tendency to bring our judicial system to its
knees. . . .
2
Ky., 694 S.W.2d 689, 694-5 (1985).
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. . . .
Although the law is still developing as
to what constitutes effective assistance of
counsel in the constitutional sense, it
cannot be doubted that the failure of
counsel to file an appellate brief which
results in the dismissal of an appeal
constitutes ineffective assistance of
counsel. (Emphasis added.)
Although the delay in the cases now before us is not as lengthy
as the time-frame addressed in Wine, we nevertheless consider it
to be sufficiently egregious to call into question the
effectiveness of the assistance provided by Mr. Stutsman -regardless of the quality of the brief that was finally filed.
In these cases, we are dealing with the direct appeals of
indigent appellants, who have remained incarcerated while delay
after delay in the preparation of the appellant’s brief was
requested by appointed counsel.
A brilliant brief would be a
moot issue and little comfort to an appellant whose sentence was
served before his appeal could be heard.
As background for our decision regarding sanctions, we
shall endeavor to set out in detail Mr. Stutsman’s pattern of
practice before this Court over the past several years and to
explain why this Court can no longer tolerate his repeated
missed deadlines, motions, and responses to show cause orders.
The following list is a representative sample of the manner in
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which Mr. Stutsman has responded to the appellate rules and the
orders of this Court3:
Appeal No. 2000-CA-000077-MR
TURNER v. COMMONWEALTH -- Direct Appeal
12/9/99
2/02/01
2/23/01
5/10/01
6/7/01
6/28/01
10/12/01
1/16/02
2/6/02
2/14/02
3/19/02
Circuit court judgment
After many motions and much
delay, Mr. Stutsman is
substituted as counsel of record
for appellant
Order granting motion for 60 days
additional time to obtain
narrative statement
Returned to staff attorney for
failure to comply with order of
2/23/01
Court orders appellant to file
response indicating status of
narrative statement and when
supplemental certification may be
completed
No response
Due to failure to respond to
order of 6/7/01, Court orders
case to continue without
narrative statement; brief due
11/12/01
Show cause for dismissal for
failure to file brief.
No response.
Untimely response to show cause
Court finds sufficient cause not
to dismiss and grants until
3/31/02 to obtain supplemental
certification. Brief due 20 days
from date supplemental record is
made available
3
This outline was prepared by a review of Court of Appeals’ step sheets in the
listed cases. It is not intended to represent every step in the appellate
process; rather, it focuses on those practices pertinent to issue of
sanctions. In some cases, there were also many motions for extension and
enlargement related to the preparation of the record.
- 6 -
2/11/03
2/25/03
4/3/03
8/19/03
10/20/03
No response to court order of
3/19/02
Show cause order for failure to
file brief
No response
Court’s own motion; final 60-day
extension to file brief. Failure
to comply will result in
dismissal and imposition of
sanctions on counsel. Due
10/20/03
Appellant’s brief filed.
Appeal No. 2001-CA-001467-MR
REYNOLDS v. COMMONWEALTH —- Direct Appeal
5/24/01
2/8/02
2/26/02
4/4/02
4/24/02
7/26/02
8/9/02
8/16/02
9/4/02
9/5/02
10/22/02
Circuit court judgment
First motion for 60-day extension
to file brief
Order granting extension to
4/9/02, including warning
language as to further extensions
and sanctions
Motion for 30-day extension
Order granting extension to
5/9/02
Motion for additional time (until
8/1/02) in which to file brief
Motion for additional time; brief
tendered
Order entered passing motions for
additional time, directing
counsel to show cause why he
should not be fined $250;
provision that he may pay
fine by 9/2/02 in lieu of
response
No response
Received untimely check for $250
Order granting passed motions for
additional time and ordering
tendered brief filed
Appeal No. 2001-CA-001102-MR
TAYLOR v. COMMONWEALTH —- Direct Appeal
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5/17/01
9/10/01
9/26/01
10/17/01
12/21/01
1/15/02
2/14/02
3/14/02
4/3/02
5/16/02
5/30/02
6/4/02
11/19/02
2/24/03
Circuit court judgment
Appellant’s brief due
Untimely motion for 60-days’
additional time to file brief
Order granting until 11/11/01
to file brief with warning
language
Show cause issued for failure to
file brief; response due 1/14/02
No response
Untimely response tendered
Untimely motion for additional
time to 3/22/02 filed
Motion for enlargement to 4/8/02
filed
Order entered finding sufficient
cause not to dismiss and ordering
brief filed by 5/31/02; show
cause to counsel on issue of
sanctions
Motion for additional time (until
6/4/02) in which to file brief
Timely response to show cause for
sanctions
Motion for additional time, brief
tendered
Order granting additional time and
that brief be filed; finding of
sufficient cause not to sanction
Appeal No. 2002-CA-000230-MR
DEATLEY v. COMMONWEALTH -- Direct Appeal
1/9/02
5/22/02
7/8/02
7/18/02
8/16/02
11/8/02
12/2/02
Circuit court judgment
Order granting first motion for
60-day extension (until 7/6/02)
in which to file appellant’s brief
Motion for additional time to
file brief
Motion for additional time (until
7/23/02) in which to file brief
Order granting additional time to
file brief; due 5 days from
order; warning language
Show cause for dismissal for
failure to file brief
Response to show cause
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2/18/03
4/7/03
4/25/03
Order finding sufficient cause
not to dismiss, brief due 30 days
from order, no further
extensions, warning language
Show cause for sanctions issued
for failure to comply with order
of 2/18/03; counsel may pay $300
fine by 4/28/03 and must still
respond to order
Fine paid, brief tendered
Appeal No. 2002-CA-001132-MR
BROOKS v. COMMONWEALTH —- Direct Appeal
5/15/02
10/21/02
1/21/03
2/3/03
8/19/03
10/21/03
11/24/03
12/2/03
12/3/03
1/5/04
1/12/04
Circuit Court judgment
Order granting first motion for
additional time, brief due
11/27/02, warning language
Commonwealth’s motion to dismiss
for failure to file brief
Response to motion and motion for
additional time to file brief
Order denying motion to dismiss,
granting until 10/17/03 to file
brief; warning that failure to
file brief as directed may result
in dismissal and/or sanctions
Untimely motion for additional
time (until 10/24/03) in which to
file brief
Counsel ordered to show cause why
appeal should not be dismissed
and sanctions imposed. Response
due 12/1/03
No response
Untimely response, motion for
enlargement of time (until
12/19/03) in which to file brief
Motion for additional time (until
1/10/04) filed by Lisa Clare for
Dennis Stutsman4
Corrected motion for additional
4
Apparently Mr. Stutsman left the employment of the Office of Public Advocacy
as of 12/31/03 but agreed to complete certain cases assigned to him.
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1/14/04
2/2/04
time, treated as a motion for
additional time (until 1/17/04),
filed by Lisa Clare for Dennis
Stutsman
Order granting motions for
additional time (until 2/1/04).
If brief is not filed on that
date, Mr. Stutsman is ordered to
appear in person on 2/10/04 to
show cause why sanctions should
not be imposed. Order directed to
be served on Erwin Lewis and
Rebecca DiLoreto in addition to
Stutsman
Appeal perfected
2002-CA-002510-DR
TURNEY v. COMMONWEALTH —- Discretionary Review
2/6/03
5/27/03
6/16/03
7/1/03
7/16/03
7/28/03
9/2/03
9/17/03
9/26/03
Order granting discretionary
review, brief due 5/28/03
First motion for additional time
Order granting motion for
additional time (until 7/1/03) in
which to file brief
Motion for additional time (until
7/11/03) in which to file brief
Order granting until 7/28/03,
warning language
Motion for additional time (until
7/29/03) in which to file brief
Order entered passing motions for
additional time, ordering counsel
to show cause why a fine of $300
should not be imposed for failure
to timely file brief
Timely response to show cause
order and motion for additional
time (until 9/25/03) in which to
file brief
Appellant’s brief tendered
2003-CA-000356-MR
CALDWELL v. COMMONWEALTH —- Direct Appeal
2/4/03
Circuit court judgment, brief due
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8/22/03
9/8/03
11/7/03
11/25/03
12/3/03
1/5/04
1/12/04
2/24/04
3/23/04
4/2/04
4/5/04
4/6/04
5/4/04
8/25/03
Motion for 60-days’ additional
time (until 10/23/03)
Order granting additional time
(until 10/23/03)
Untimely motion for additional
time to file brief
Order passing motion for
additional time, ordering
counsel to show cause why a fine
of $300 should not be imposed
for failure to timely file
brief. Counsel may pay fine in
lieu of filing response
Response to show cause and
motion for additional time (until
12/30/03) in which to file brief
Motion for additional time (until
1/10/04)in which to file brief
Corrected motion for additional
time (until 2/10/04) in which to
file brief
Motion for additional time (until
3/11/04) in which to file brief
Order granting additional time
to file brief. If brief is not
filed on or before 3/31/04,
appeal will be dismissed and
counsel is ordered to appear in
person before Court on 4/6/04 to
show cause why sanctions should
not be imposed
Motion to reconsider order of
3/23/04 and motion for
additional time (until 4/6/04) in
which to file brief -- signed by
Dennis Stutsman
Brief for appellant tendered,
signed by Lisa Clare for Dennis
Stutsman
Counsel failed to appear as
ordered
Order denying motion to
reconsider order of 3/24/04.
On its own motion, Court
reinstates appeal subject to
following conditions: 1)
motions for additional time are
- 11 -
5/21/04
6/2/04
6/3/04
6/7/04
6/8/04
granted and tendered brief is
ordered filed; 2) Public
Advocate is ordered to remove
Mr. Stutsman as counsel of
record and to appoint substitute
counsel, who shall have 15 days
to review brief and record to
determine whether supplemental
brief is necessary; 3) Mr.
Stutsman is ordered to appear
on 6/8/04 in order to
show cause why he should not be
sanctioned and/or referred to
Kentucky Bar Association; and 4)
Erwin Lewis and Rebecca
DiLoretto are required to appear
at the show cause hearing.
Supplemental order directing
that Delong case will also be
addressed at show cause hearing;
also directing Mr. Stutsman to
provide Court with a detailed
listing of all cases in which
he continues to be counsel of
record for OPA, specifically
identifying where each case
stands in the appellate process.
The Public Advocate and Ms.
DiLoreto should be prepared to
discuss pending matters in the
Caldwell and Delong appeals as
well as Mr. Stutsman’s status
as counsel for OPA in any other
matter pending in this Court
OPA filed a response to order
of 5/21/04 and requested that
the Public Advocate be allowed
to appear through his designees
Order denying OPA’s motion to
allow the Public Advocate to
appear through his designees
Dennis Stutsman filed response
to order of 5/21/04
Show cause hearing
Appeal No. 2003-CA-001767-MR
McCORMICK v. COMMONWEALTH —- Direct Appeal
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7/22/03
9/19/03
10/9/03
10/23/03
2/6/04
2/27/04
4/7/04
4/29/04
6/2/04
6/10/04
Circuit court judgment
Motion to supplement record and
for additional time to file
brief
Order granting motion to
supplement; brief due 60 days
from date record made available
Supplemental record checked out;
brief due within 60 days
Motion for additional time (until
3/15/04) in which to file brief
Order granting additional time,
warning language
Show cause order, failure to
file brief
Untimely response to show cause
(due 4/7/04); hand-delivered on
4/29/04; motion for additional
time (until 5/30/04) in which to
file brief
Tendered brief -- 2 days late
Notice from Lisa Bridges Clare
that she has no knowledge of or
involvement in case other than
having signed pleadings on
behalf of Dennis Stutsman
Appeal No. 2003-CA-001896-MR
DELONG v. COMMONWEALTH —- Direct Appeal
8/8/03
12/3/03
12/18/03
4/7/04
4/29/04
5/17/04
5/21/04
Circuit court judgment; brief
due 12/14/03
Motion for additional time (until
2/20/04) in which to file brief
Order granting additional time
Show cause for dismissal for
failure to file brief
Untimely response to show cause
(due 4/27)
Tendered brief
Case combined with Caldwell for
purposes of June 8 hearing
- 13 -
It is with respect to this deplorable history of Mr.
Stutsman’s pattern of practice before the Court of Appeals that
we undertake an examination of the written responses to our show
cause order and the oral statements of Mr. Stutsman and the
representatives of OPA at the June 8 hearing.
Although there
are several specific areas of concern, we commence our
discussion by addressing Mr. Stutsman’s contention there was no
contemptuous intent in his repeated failure to adhere to
appellate deadlines or to respond to specific orders of this
Court.
According to Mr. Stutsman, his acts or omissions were
merely the product of having “no good options” in the handling
of an unmanageable workload.
We cannot concede that a
reasonably prudent attorney in Mr. Stutsman’s situation would
believe that an acceptable course of conduct was simply to
ignore court orders.
Clearly, there were other appropriate
courses of action.
As reflected in the lengthy recitation of procedural
steps in some of Mr. Stutsman’s pending cases, this Court has
exhibited extraordinary leniency in our rulings.
Mr. Stutsman
could have -- and should have -- approached his superiors and
alerted them to the fact that he was unable to handle both his
managerial duties and his assigned caseload.
This Court has
always been receptive to discussions with OPA concerning its
caseload, and we have indicated our willingness to make
- 14 -
reasonable accommodations -- at least to the extent that the
procedural rights of indigent appellants were not impaired.
Thus, we find no merit in Mr. Stutsman’s contention that he had
no good options.
Furthermore, even if it were true that Mr. Stutsman
had no subjective contemptuous intent, the totality of his
actions in response to orders of this Court cannot be
characterized realistically as anything other than contemptuous.
By repeatedly injecting unwarranted delay into the appellate
process, Mr. Stutsman has abused the efforts of this Court to
accommodate the demands on OPA staff when we have granted
reasonable extensions of time to complete the briefing process.
As with all members of the Bar, we expect OPA attorneys to
respect and to comply with this Court’s orders and rules.
Most
OPA attorneys have served admirably and have endeavored to
comply with our rules.
We have grave reason to question Mr. Stutsman’s candor
at the June 8 hearing.
Mr. Stutsman claimed that he has not
attempted to “play games” with this Court.
However, that
representation simply cannot be reconciled with his course of
conduct in these and other appeals.
This panel also has serious
concerns about Mr. Stutsman’s candor in the filing of what we
perceive to be “boilerplate” motions for extension and
enlargement, which frequently do not contain current or
- 15 -
pertinent information regarding his noncompliance with briefing
deadlines and orders of this Court.
A third area which is of concern is the fact that
since January 1 of this year, we are aware of only one pleading
or motion actually signed by Mr. Stutsman:
reconsider the order of March 23, 2004.
the motion to
As an occasional
accommodation, the practice of one lawyer’s signing for another
attorney in the office is not unusual where the fact of such
agency of the signer is fully disclosed.
However, virtually all
pleadings and motions filed in an appeal should not be signed
consistently and routinely by someone other than the attorney of
record.
Accordingly, having considered both the written and
oral responses to the show cause order, and being otherwise
sufficiently advised, the Court FINDS Dennis M. Stutsman to be
IN CONTEMPT OF THIS COURT and hereby ASSESSES a fine of $500.00
to be paid to the Clerk of this Court on or before twenty (20)
days from the date of entry of this order.
In addition, the Court REFERS this matter to the
Kentucky Bar Association for investigation of what we believe
may be violations of SCR 3.130, Rule 1.3, regarding diligence
and promptness in representing a client; SCR 3.130, Rule 3.2,
regarding reasonable efforts to expedite litigation; and SCR
3.130, Rule 3.3(a), regarding candor in statements of fact to a
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tribunal.
The Court does not make this referral lightly or
without serious reflection and deliberation.
In so acting, we
take particular note of Kentucky Bar Association v. Terrell,
Ky., 891 S.W.2d 403 (1995), in which the Supreme Court of
Kentucky upheld the imposition of disciplinary sanctions for
violations of the rules cited previously which involved
representation in a single case.
With regard to Mr. Stutsman,
we are dealing with a pattern of practice established and
continued over a period of years and in numerous cases.
Finally, we reiterate our concern and belief that the
lack of appropriate supervision in the Office of Public Advocacy
has facilitated some of its attorneys in flagrantly disregarding
the rules of appellate procedure and in rendering what may very
well be considered ineffective assistance to its clients.
The
Court hereby ORDERS the Public Advocate to remove Dennis M.
Stutsman as counsel of record for OPA in every appeal pending in
this Court.
The Public Advocate is ORDERED to CERTIFY to this
Court, on or before thirty (30) days from the date of entry of
this order, that Mr. Stutsman has been removed and to INFORM the
Clerk of this Court as to the identity of substitute counsel in
each case.
This panel is firmly committed to preventing the
abuses of the appellate process that we have outlined in this
opinion.
Therefore, until such time as the matter of briefing
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policy can be reviewed and possibly amended by the Court en
banc, the Court will require strict adherence to Administrative
Order 85-4, which sets out the following criteria concerning
motions for extension or enlargement of time to file a brief by
a public advocate or assistant attorney general:
(1) the record on appeal must be examined by
the attorney filing the motion prior to
asking for additional time5; and
(2) the initial motion must request an
extension for the total briefing time
necessary, not to exceed a total of 120 days
from the brief’s original due date.
From and after the date of entry of this order,
compliance with this administrative order will require motions
for extension or enlargement outside 120 days from the brief’s
original due date to be accompanied by an affidavit of
necessity, duly signed and notarized by the Public Advocate,
specifying in detail why the brief cannot be completed within
normal time limitations.
Any motion for time outside the
limitations set out in the current administrative order which is
5
The examination contemplated in this order consists of more than a cursory
listing of the contents of the record on appeal. It presupposes an
examination sufficient to enable counsel to request an adequate amount of
additional time in which to prepare the brief. Compliance with this
requirement will be enforced.
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not accompanied by this affidavit of necessity will be returned
as deficient by the Clerk of this Court.
We now turn to rulings on the pending procedural
motions in Caldwell, Delong, and McCormick.
First, in Caldwell,
Appeal Number 2003-CA-000356, the Court GRANTS the motion to
accept the brief tendered on April 5, 2004, as the brief for
appellant.
In order to clarify the briefing time for appellee,
the Court ORDERS that the brief for the Commonwealth shall be
due on or before sixty (60) days from the date of entry of this
order.
In Delong, Appeal Number 2003-CA-001896, the Court
FINDS SUFFICIENT CAUSE not to dismiss this appeal and ORDERS the
brief tendered on May 17, 2004, FILED on the date of entry of
this order.
The brief for the Commonwealth shall be due on or
before sixty (60) days of the date of entry of this order.
In McCormick, Appeal Number 2003-CA-001767, the Court
FINDS SUFFICIENT CAUSE not to dismiss this appeal and hereby
ORDERS the brief tendered on June 2, 2003, FILED on the date of
entry of this order.
The brief for the Commonwealth shall be
filed on or before sixty (60) days from the date of entry of
this order.
ALL CONCUR.
ENTERED: _July 30, 2004
_______/s/ _ Sara Combs_______
CHIEF JUDGE, COURT OF APPEALS
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APPEARANCE ON BEHALF
OF DENNIS STUTSMAN:
Dennis Stutsman
Erwin W. Lewis
Rebecca Ballard DiLoreto
Frankfort, Kentucky
- 20 -
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