Criminal – Post-conviction relief, RCr 11.42, DVO: Fuston v. Commonwealth (COA 8/21/2009)

Fuston v. Commonwealth
2008-CA-000819 8/21/09 2009 WL 2569069

Opinion by Judge Wine; Judges Nickell and Stumbo concurred.

The Court reversed and remanded an order of the circuit court denying appellant post-conviction relief under RCr 11.42 from his conviction for first-degree manslaughter. The Court held that the trial court clearly erred in finding that appellant did not qualify for the domestic violence exemption to the violent offender statute found in KRS 439.3401(5). There was substantial evidence in the record that appellant’s sister and the victim were members of an unmarried couple as defined in KRS 403.720(2), the physical injuries the victim inflicted upon appellant’s sister qualified as domestic violence, and there was a connection between the domestic violence and the events that led up to appellant shooting the victim.

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