COA 2009 Minutes: August 21, 2009 (Nos. 818-855)

COA 2009 Minutes: August 21, 2009 (Nos. 818-855)

• 36 decisions
• 6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

818
Lawson v. Com.
CLAYTON, JUDGE: This is an appeal of the denial of a motion to alter, amend or
vacate pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 brought by appellant, Leslie Lee Lawson. For the reasons that follow, we affirm in part, reverse in part and remand the judgment of the Laurel Circuit Court.

830
Fuston v. Com.
BEFORE: NICKELL, STUMBO, AND WINE, JUDGES.

WINE, JUDGE: Richard Fuston (“Richard”) appeals from an order of the Whitley Circuit Court denying post-conviction relief under Kentucky Rules of CriminalProcedure (“RCr”) 11.42 from his conviction for first-degree manslaughter. Thetrial court originally denied relief and Richard appealed to this Court. This Courtaffirmed in part and remanded in part for an evidentiary hearing. On remand, an evidentiary hearing was held, and the trial court again ruled against Richard. Wenow review the issues in Richard’s RCr 11.42 motion; namely, whether thedomestic violence exception to the violent offender statute should apply to him as amatter of law; whether his trial counsel was ineffective for failing to move the trialcourt to apply the domestic violence exception to the violent offender statute; and whether the trial court erred by refusing to qualify his expert in domestic violence at the hearing. We reverse and remand, with direction to the trial court to apply thedomestic violence exception to the violent offender statute.

832
Oller v. Com.
BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Cleatus Ray Oller, pro se, appeals from the denial of his motion for post-conviction relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. He argues that the trial judge lacked authority to entertain his motion. We affirm.

834
Hicks v. Magoffin County Board of Ed.
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.

VANMETER, JUDGE: John Hicks appeals from a summary judgment entered by the Magoffin Circuit Court dismissing his claim relating to the failure of the Magoffin County Board of Education (Board) to hire him for the position of special education teacher/director. We affirm. Hicks, a certified special education teacher, applied to the Board seeking the position of special education teacher/director for the 2002-03 school year. The Board declined to hire Hicks, instead hiring a noncertified but otherwise qualified teacher after obtaining an emergency certificate approved by the Kentucky Education Professional Standards Board. Hicks filed a complaint in the Magoffin Circuit Court, and discovery was conducted. Eventually both parties filed motions for summary judgment, and the trial court granted summary judgment for the Board. This appeal followed.

838
Jacob v. Dripchak
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Robert A. Jacob, M.D. brings this appeal from a May 13, 2008, judgment of the Jefferson Circuit Court confirming an arbitration award entered on November 10, 2007, and as clarified on January 28, 2008, in favor of Bluegrass Orthopaedic Group, P.S.C. We affirm in part, reverse in part, and remand with directions. I. BACKGROUND This case arises from an employment relationship between Bluegrass Orthopaedic Group, P.S.C. (Bluegrass) and Dr. Jacob.

854
C.(P.C.)  v.  C. (C.M.)
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.

COMBS, CHIEF JUDGE: P.C.C. (P) appeals from a judgment of adoption of the Bell Circuit Court effectively terminating his parental rights and allowing his son’s stepfather to adopt him. The evidence before the court did not establish clearly and convincingly that P willfully abandoned his son. Therefore, we vacate the judgment.