Sept. 16, 2011 COA Minutes —      Nos. 828-842 (15 decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

829. CRIMINAL PROCEDURE.  FARETTA HEARING.
MARTIN (VITTORIO ORLANDO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND TAYLOR (CONCURS IN PART, DISSENTS IN PART)
2010-CA-000322-MR
2010-CA-001905-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Vittorio Orlando Martin appeals from orders of the Fayette Circuit Court. First, he appeals from the January 28, 2010, judgment of the court, which found him guilty of burglary in the second degree. As a result of this judgment, Martin received a suspended sentence of eight years of imprisonment  and was placed on probation for five years. As a result of this judgment, Martin claims that his rights were violated when the trial court failed to conduct a Faretta (Faretta v. California, 422 U.S. 806, 955 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).) hearing, denied his motion to dismiss on double jeopardy grounds, and imposed court costs as a condition of his probation. Second, Martin appeals the trial court’s later revocation of his probation following his failure to successfully complete drug court. The two appeals were consolidated. For the reasons stated herein, we affirm in part, reverse in part, and remand for a new trial.

830.  CRIMINAL PROCEDURE.  MOTION TO WITHDRAW WAIVER OF JURY SENTENCING. PROVISION RE WAIVING RIGHT TO APPEAL.
SIMMS (KEVIN LAMONT)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000344-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE:    Kevin Simms, a/k/a Kevin Franklin, appeals an order of the Jefferson Circuit Court denying his motion to withdraw his waiver of jury sentencing. After reviewing the record and the law, we affirm.

We acknowledge that this was a close case that was very well briefed and argued by the appellant. The form could have (and perhaps should have) stated that the right to appeal is guaranteed by the Kentucky Constitution. We also note that the trial court asked if it should conduct a Boykin colloquy with Simms; it elected not to do so. The colloquy is “an affirmative showing, on the record, that a guilty plea is voluntary and intelligent” as required by Boykin v. Alabama, 395 U.S. 238, 241-42, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969)). Id. The Boykin colloquy addresses the defendant’s state of mind, whether he understands his options other than the guilty plea, if he is satisfied with the representation his counsel provided, and if the plea is his own choice. It would not have been a hardship and certainly would have been better practice for the court to conduct the colloquy in order to insure the voluntariness of Simms’s plea.

Simms does not offer any evidence that he did not tell the truth in his colloquy with the court. His trial counsel testified to the court that he felt that a jury would have imposed a much harsher punishment upon Simms, and he thought that the sentencing bargain was equitable. With that evidence before the trial court, we are not persuaded that it committed error when it denied Simms’s motion to withdraw his waiver of jury sentencing.

Therefore, we conclude that Simms was adequately informed when he agreed to the sentencing plea, and we hold the court did not err in denying his motion to withdraw his plea.

831.  REAL PROPERTY. EASEMENTS. AVIGATION. DAMAGES (DELAY).
CAMPBELL (BRATSCHI D.), ET AL.
VS.
DRESCHER (WILLIAM B.), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS) AND WINE (CONCURS)
2010-CA-000680-MR
2010-CA-000681-MR
2010-CA-000682-MR
TO BE PUBLISHED
CHRISTIAN

KELLER, JUDGE: Covenant Storage, Inc. (Covenant) appeals from the trial court's summary judgment finding that Bratschi D. Campbell (Bratschi), Bratschi C. Johnston (Johnston), and her husband, Crews Johnston, III (Crews) (collectively, the Campbells) were entitled to proceeds from an avigation easement over real property they sold to Covenant. The Campbells cross-appeal the court's denial of their motion for prejudgment interest and/or "delay damages." The Campbells also appeal from the trial court's summary judgment in their legal malpractice claim against William B. Drescher (Drescher) and his law firm, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (Baker Donelson). For the following reasons, we reverse and remand.

832. CRIMINAL PROCEDURE. 11.42 MOTION.
BISHOP (CHARLES LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000706-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This is a post-conviction proceeding in which Charles L. Bishop is appealing from the Jefferson Circuit Court’s denial of his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. After carefully reviewing the record, we affirm the circuit court’s order.

STANDARD OF REVIEW OF POST CONVICTION PROCEEDINGS:

We shall briefly describe the standard of review in RCr 11.42 post- conviction actions. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
In Sparks v. Commonwealth, 721 S.W.2d 726 (Ky. App. 1986), this Court addressed the validity of guilty pleas in the context of post-conviction actions. Specifically addressing the two-part test used to challenge a guilty plea based upon ineffective assistance of counsel, the Sparks Court instructed:
A showing that counsel’s assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.

Sparks, 721 S.W.2d at 727-28. See also Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001). However, the law is clear that “[e]ntry of a voluntary, intelligent plea of guilty has long been held by Kentucky Courts to preclude a post-judgment challenge to the sufficiency of the evidence.” Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986).

837.  FAMILY LAW. DIVORCE.  CHILD CUSTODY AND  "RECONCILIATION COUNSELING"; JOINT CUSTODY.
B. (N.)
VS.
H. (C.)
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT, SENIOR JUDGE (CONCURS AND FILES SEPARATE OPINION
2010-CA-002257-ME
TO BE PUBLISHED
FAYETTE

ACREE, JUDGE: N.B. (Mother) appeals the November 22, 2010 order of the Fayette Family Court addressing various issues regarding a minor child, M.H. (Daughter), born of Mother’s marriage to C.H. (Father). We find no error in the family court’s refusal to order Mother and Daughter to undergo additional reconciliation counseling, and we therefore affirm that portion of the order. The family court did err, however, in permitting Father to unilaterally decide, contrary to the order of joint custody and without the joint custodian’s agreement, to relocate Daughter to Texas without conducting a hearing to determine whether relocation was in Daughter’s best interests. We therefore vacate the portion of the order addressing those matters and remand the case for additional proceedings.
Facts and procedure

839.  FAMILY LAW.  PERSONAL JURISDICTION VS. SUBJECT MATTER JURISDICTION OVER MODIFYING CHILD SUPPORT ORDER.
ROBERTS (COURTNEY G.)
VS.
BEDARD (ERIC)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000212-ME
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Courtney G. Roberts appeals the Fayette Family Court’s order dismissing her motion to modify a child support order, which was originally entered in Florida. The family court dismissed the motion holding that, although the court may have personal jurisdiction over Bedard, it did not have subject-matter jurisdiction over a proceeding to modify the order. For the following reasons, we affirm.

STANDARD OF REVIEW FOR FFCCSOA

Here, the primary contested issue involves jurisdiction. Since the
issue of jurisdiction is a matter of law, we will review it de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000). The Kentucky Supreme
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Court addressed the issue of jurisdiction related to UIFSA in Nordike v. Nordike, 231 S.W.3d 733 (Ky. 2007). Therein, the Court described jurisdiction as follows: “[j]urisdiction, broadly defined, is the power of the court to decide an issue in controversy.” Id. at 737, citing Black’s Law Dictionary 867 (8th ed. 2004). The Court then went on to discuss three types of jurisdiction – personal, subject-matter, and jurisdiction over a particular case.
With regard to personal jurisdiction, the Court stated:
First, there is personal jurisdiction, or “the court’s authority to determine a claim affecting a specific person.” Milby, 952 S.W.2d [202 (Ky. 1997)] at 205. When the question is whether the court has the power to compel a person to appear before it and abide by its rulings, this is a question of personal jurisdiction. Given the mobile world we live in, personal jurisdiction often is difficult to obtain, which has led each state to the development of long-arm statutes that extend personal jurisdiction to nonresidents. KRS 407.5201 is such a statute.
Id. Next, the Court discussed subject-matter jurisdiction:
Often, discussions of jurisdiction concern subject- matter jurisdiction, or the court’s power to hear and rule on a particular type of controversy. . . . Subject matter jurisdiction is not for a court to “take,” “assume,” or “allow.” “ ‘[S]ubject-matter jurisdiction cannot be born of waiver, consent or estoppel,’ ” but it is absent “ ‘only where the court has not been given any power to do anything at all in such a case. . . .’ ” Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) (quoting In Re Estate of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 217 N.E.2d 639, 643 (N.Y. 1966)). A court either has it or it doesn’t, though admittedly there are times when more than one court may have subject matter jurisdiction or it is difficult to determine which court does.
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Id. at 737-38. Lastly, the Court addresses jurisdiction over a particular matter and says:
Finally there is jurisdiction over the particular case at issue, which refers to the authority and power of the court to decide a specific case, rather than the class of cases over which the court has subject-matter jurisdiction. Milby, 952 S.W.2d at 205. This kind of jurisdiction often turns solely on proof of certain compliance with statutory requirements and so-called jurisdictional facts, such as that an action was begun before a limitations period expired.
Id. Here, the disputed jurisdiction revolves around the first two types, that is, whether the family court had personal jurisdiction over Bedard and subject-matter jurisdiction over the motion to modify the Florida child support order. Adding to the complexity of the issue is the interrelationship of the UIFSA statutes and the FFCCSOA statutes.

842. WORKERS COMP.  INJURIOUS HAZARD. EMPLOYER RESPONSIBLE FOR BENEFITS.
GREG'S CONSTRUCTION
VS.
KEETON (JERRY), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000761-WC
TO BE PUBLISHED
WORKERS' COMP

MOORE, JUDGE: Greg’s Construction appeals from an opinion, order and award of an Administrative Law Judge (ALJ), as affirmed by the Board of Workers’ Claims (“Board”), holding Greg’s Construction exclusively liable, per KRS1 342.7305(4), for paying benefits and medical expenses relating to Appellee Jerry Keeton’s claim of permanent partial hearing loss. Upon review, we affirm.

Keeton was only required to present substantial evidence demonstrating that he was exposed to hazardous levels of noise during his employment with Greg’s Construction. Keeton has done so. And, Greg’s Construction cites to nothing in the record that would rebut that Keeton was injuriously exposed to hazardous levels of noise in its workplace. As such, we find no error with respect to this portion of the ALJ’s decision.

In relevant part, KRS 342.7305(4) provides that “the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits.” As noted above, substantial evidence supports the ALJ’s determination that Greg’s Construction was the employer with whom Keeton was last injuriously exposed to hazardous noise. Therefore, pursuant to the unambiguous language of the statute, Greg’s Construction is exclusively liable for Keeton’s benefits. See, e.g., Shelcha Coal Co., 834 S.W.2d at 696 (holding that identical language in KRS 342.316 is “clear and unequivocal” and precludes apportionment); see also McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 77 (Ky. 2002) (“courts must presume that a legislature says in a statute what it means and means in a statute what it says . . . [and][w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)).

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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834.  SETTLEMENTS.  AUTHORITY. CONFLICT OF INTEREST.
PRESCOTT (KEVIN)
VS.
CANNON (ALTON)
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001794-MR
NOT TO BE PUBLISHED
BULLITT

COMBS, JUDGE:    Kevin Prescott appeals an order of the Bullitt Circuit Court granting the motion of Alton Cannon, Administrator De Bonis Non, of the Estate of Robert V. Denk, to enforce a settlement of the parties’ claims. After our review, we vacate and remand for further proceedings.

When determining whether to settle a claim, our courts recognize that final decision-making authority rests with a client — not with his attorney. Clark, 917 S.W.2d at 575. Without his client’s express authority, an attorney generally has no authority to bind his client to a settlement or compromise. Id. at 576. Kentucky’s Rules of Professional Conduct mandatorily direct that an attorney “shall abide by a client’s decision whether to accept an offer of settlement . . . .” Rule[s] of the Supreme Court (SCR) 3.130-1.2(a). (Emphasis added.)
In Clark v. Burden, 917 S.W. at 577, the Supreme Court of Kentucky directed that where a dispute erupts as to whether a client has given settlement authority to his attorney, “the trial court shall summarily decide the facts.” In such a proceeding, the attorney-client privilege will not prevent the attorney from testifying as to the client’s instructions regarding settlement. Id. Whether Prescott gave Esmailzadeh express authority to settle the matter was the critical issue at the court’s hearing. Esmailzadeh’s testimony was material to the interests of both parties and was critical to a resolution of this central issue of authorization. However, SCR 3.130-3.7(a) specifically provides that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .”1 Comment 5 to SCR 3.130-3.7 indicates that where there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation is improper. The comment also provides that the problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party.
Although our Rules of Professional Conduct indicate that determining whether such a conflict exists is primarily the responsibility of the lawyer involved, courts have an abiding and independent interest in assuring that representation of litigants is not compromised by an improper conflict of interest. Under the circumstances presented here — where an attorney was required to continue in the representation despite a patent conflict of interest, the integrity of both the court and the attorney was undermined. While neither of the parties on appeal was in a position to have raised the issue of the unadjudicated conflict of interest before this court, the error has grave implications beyond the Bullitt Circuit Court, these attorneys, and these parties. Therefore, we hold that the court erred in failing to enter an order permitting Esmailzadeh to withdraw from the representation.2    We remand for a re-trial on the merits of the case.
The order of the Bullitt Circuit Court enforcing the alleged settlement is vacated. This matter is remanded for further proceedings consistent with our opinion.