RENDERED: JUNE 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0296-DG
BRANDON BLAIR APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-0537, 2021-CA-0490, 2021-CA-0535, & 2021-CA-0536 JOHNSON CIRCUIT COURT NOS. 20-CR-00204, 20-CR-00205, 20-CR-00206 AND 20-CR-00207
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE BISIG
AFFIRMING
Brandon Blair was separately indicted in Johnson Circuit Court for five
felony counts of trafficking in methamphetamine. As part of his conditional
release on bond, Blair agreed to appear at subsequent proceedings. After
failing to appear at a scheduled court date, Blair was charged in five separate
indictments of first-degree bail jumping—one charge for each underlying
trafficking indictment scheduled to be heard that day. Blair filed a motion to
dismiss four of the bail jumping charges based on double jeopardy, which the
trial court denied. He subsequently entered a conditional guilty plea and was
sentenced to a total of ten years in prison. The Court of Appeals affirmed his convictions. Having granted discretionary review and hearing oral arguments,
we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In August 2019, Brandon Blair was charged with five felony counts of
first-degree trafficking in methamphetamine and separately indicted for each
charge in Johnson Circuit Court. Blair was arraigned on all charges during
one court appearance and the trial court set the same $5,000 bond in each
case. A separate bond form was executed in each case which set forth
conditions, including a requirement to participate in a drug treatment program
and Blair’s promise to appear at subsequent proceedings. When Blair failed to
appear at his scheduled court date, he was charged in five separate
indictments of first-degree bail jumping—one bail jumping charge for each
underlying indictment scheduled to be heard that day—and charged with being
a persistent felony offender (PFO) in the second degree.
Following the bail jumping indictments, Blair moved to dismiss four of
the five bail jumping charges. He argued he only committed a single act of bail
jumping because he missed one court date, and further asserted that the latter
four indictments violated double jeopardy for punishing the same act of
nonappearance as the first indictment. The Commonwealth argued that Blair
committed five acts of nonappearance by missing a court date in each case.
The trial court agreed with the Commonwealth and denied Blair’s motion to
dismiss. Blair ultimately entered a plea agreement, specifically reserving his
right to appeal the double jeopardy issue, and was sentenced to five years in
2 prison. In the underlying trafficking cases, Blair also entered a plea agreement
to serve five years in prison for a total sentence of ten years. 1
On appeal, the Court of Appeals unanimously affirmed the trial court,
reasoning that the “unit of prosecution” for first-degree bail jumping is each
felony charge for which a defendant fails to appear. 2 The appellate court
pointed to the bail jumping statute, Kentucky Revised Statute (KRS)
520.070(1), which provides that
[a] person is guilty of bail jumping in the first degree when, having been released from custody by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place in connection with a charge of having committed a felony, he intentionally fails to appear at that time and place.
The Court of Appeals noted that the legislature used “a charge” rather than
“one or more charges” and interpreted that language to express the legislature’s
intent to punish a defendant for failing to appear to answer a specific charge.
This Court granted discretionary review and heard oral arguments.
ANALYSIS
The sole issue presented in this appeal is whether five bail jumping
convictions, resulting from the singular failure to appear at one court
appearance, constitutes a violation of double jeopardy. Following careful
review, we conclude it does not.
1 The plea agreement dictated that Blair received one year on each of the
trafficking and bail jumping charges, all to run consecutively for a total sentence of ten years in prison. The PFO charges were dismissed.
2 Blair v. Commonwealth, 2021-CA-0490-MR, WL 3767202, at *3 (Ky. App. June
2, 2023). 3 The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 13 of the Kentucky Constitution preclude
multiple convictions for the same offense. It is inherent in the double jeopardy
prohibition that the multiple convictions must arise from the same act. When
a defendant is convicted of violating one statute multiple times, we must
determine the unit of prosecution intended by the legislature to ensure each
conviction passes constitutional muster. This Court reviews questions of
statutory interpretation de novo, granting no deference to the lower courts.
Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 535
(Ky. 2007).
“Our goal in statutory interpretation is to carry out the intent of the
legislature.” Bloyer v. Commonwealth, 647 S.W.3d 219, 224 (Ky. 2022). When
interpreting a statute,
we must look first to the plain language of a statute and, if the language is clear, our inquiry ends. We hold fast to the rule of construction that the plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.
Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) (citations and
quotations omitted).
Blair argues that the pertinent statutory language is the condition
requiring a defendant to appear at a “specified time and place,” and thus the
unit of prosecution of the bail jumping statute is the missed court appearance.
We disagree. This position would allow the unit of prosecution for the bail
jumping statute to turn on administrative decisions regarding case scheduling 4 and whether to combine criminal indictments into one court date. Such an
interpretation based on administrative convenience is misplaced, and plainly
prioritizes court scheduling over the purpose of the bail jumping statute—to
hold defendants accountable for avoiding court processes and disrupting the
orderly administration of justice.
Blair was released on five separate bond orders, each of which
constituted a separate promise to appear in court to answer that particular
charge. His failure to appear resulted in five distinct injuries to the
administration of justice, despite missing a single court appearance.
Scheduling court appearances is an administrative matter and should certainly
yield to upholding the integrity of the legal process. If the unit of prosecution
were the single missed court appearance, it would thwart the authority to
require a defendant to answer for each crime, penalize the Commonwealth and
the courts for attempting to minimize appearances for attorneys and their
clients, and effectively remove accountability for multiple alleged criminal
offenses.
Notably, the General Assembly created two separate bail jumping
statutes–one for felonies, KRS 520.070, and one for misdemeanors, KRS
520.080. As the Court of Appeals aptly noted, if a defendant committed both a
felony and a misdemeanor, then failed to appear at a single combined court
appearance for both charges, he could be convicted of two counts of bail
jumping – one conviction under KRS 520.070 and another under KRS 520.080.
But if a person commits two felonies, which would necessarily be more serious
5 than the commission of a felony and a misdemeanor, Blair’s asserted position
would only allow one bail jumping conviction.
Had the legislature intended to punish nonappearance, there would be
no need for two separate offenses. “A statute should not be interpreted so as to
bring about an absurd or unreasonable result.” Ky. Indus. Util. Customers, Inc.
v. Ky. Utils. Co., 983 S.W.2d 493, 500 (Ky. 1998). Likewise, the bail jumping
statute criminalizes failure to appear “in connection with a charge of having
committed a felony.” KRS 520.070(1). So each failure to appear is connected
to the underlying felony, making consideration of the number of charges and
how those charges are presented to the court a relevant consideration.
In the realm of criminal prosecutions, there are numerous ways an
individual may be charged for conduct that allegedly violates our laws.
Frequently, when a defendant is charged with violating a statute, they will have
several distinct charges brought under the umbrella of one criminal
indictment. In other contexts, one individual can have multiple charges of
violating the law that result from crimes allegedly committed independently.
These charges can be from offenses occurring on different days and times
involving unique circumstances. In this circumstance, numerous indictments
or separate and distinct cohorts of charges are levied against an individual for
different crimes. In the first context, a defendant can have one criminal
indictment with numerous separate offenses. In the second scenario, a
defendant has multiple criminal cases which generate several unique and
independent case numbers.
6 In either circumstance, trial judges often attempt for the efficient
administration of justice, to provide a defendant with the benefit of having a
minimum number of court appearances. As a result, as indictments arrive for
arraignment, the trial judge will endeavor to place the new criminal case on the
same court date as a pre-existing charge. Despite being placed together on a
court calendar there exists a separate case file, case number, and ultimately
the potential to try each indictment separately.
We have previously held that a single act may result in numerous
charges. In Paulley v. Commonwealth, the defendant was charged with nine
counts of wanton endangerment after firing a single shot through the front
door of a home in which nine people were present. 323 S.W.3d 715 (Ky. 2010).
Despite only committing one singular act, the Court deemed the nine separate
charges permissible. Similarly, while Blair only committed one singular act of
nonappearance, five bail jumping charges are nevertheless permissible because
he violated the bail jumping statute by failing to appear in conjunction with his
five underlying felony charges which were brought in five separate indictments.
Blair was released from custody on separate orders in five separate
felony drug trafficking cases. The trial court issued orders in all five cases
which conditionally released Blair, including a condition that he would
subsequently appear in the future. After failing to appear, he was then
indicted for five counts of first-degree bail jumping corresponding to those five
underlying drug trafficking indictments. Although Blair’s appearance before
the court in each of the trafficking cases was scheduled for the same day and
7 time, by failing to appear, Blair violated five separate court orders, therefore
justifying the imposition of five bail jumping charges. The Court of Appeals
correctly found the act being punished under KRS 520.070 was “not simply the
failure to appear, but the failure to appear to answer a specific charge.” Blair,
2023 WL 3767202, at *3.
The underlying trafficking cases were filed as five indictments and each
assigned separate case numbers. Generally, “so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file
or bring before a grand jury, generally rests entirely in his discretion.”
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Just as the decision to
bring trafficking charges against Blair under five separate indictments is
permissible prosecutorial discretion, the prosecutor properly exercised his
discretion in bringing five bail jumping charges for one failure to appear.
Moreover, our trial courts retain the utmost discretion in case management
matters to ensure efficient and prompt delivery of justice.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Johnson Circuit Court.
All sitting. Lambert, C.J.; Conley, and Goodwine, JJ., concur. Nickell,
J., dissents by separate opinion in which Keller and Thompson, JJ., join.
NICKELL, J., DISSENTING: At bottom, the question presented in this
matter is whether five bail jumping convictions, resulting from the singular
8 failure to appear on the same date, at the same time, in front of the same
judge, constitutes a violation of double jeopardy principles. I conclude it does
and am therefore compelled to dissent.
Blair sought dismissal of four of his bail jumping indictments, asserting
they violated the double jeopardy protections of the Fifth Amendment to the
United States Constitution and Section 13 of the Kentucky Constitution. He
contended the multiple indictments would subject him to being punished five
times for a single act. The Commonwealth countered that Blair had been
released from custody on five separate bonds and therefore his act of missing
court constituted five separate offenses. Without elucidating any reasoning,
the trial court summarily denied Blair’s motion to dismiss.
Before the Court of Appeals, Blair argued the statutory language set forth
in KRS 520.070(1) was intended by the Legislature to punish a defendant’s act
of failing to appear at a specified time and place, regardless of the number of
charges or cases attached to that singular required court appearance, and that
this focus was the appropriate unit of prosecution. Conversely, the
Commonwealth argued proper statutory interpretation established that the
Legislature had intended the measure of prosecution to reflect the combined
number of charges or cases separately ordered to be addressed at a particular
time and location.
The Court of Appeals generally agreed with the Commonwealth that the
act being punished under this statute was “not simply the failure to appear,
but the failure to appear to answer a specific charge.” Blair v. Commonwealth,
9 2023 WL 3767202, at *3. It concluded “[t]he plain language of the statute
clearly indicates that the unit of prosecution for first-degree bail jumping is
each felony charge for which a defendant fails to appear.” Id. The Court of
Appeals noted the statute criminalizes nonappearance “in connection with a
charge of having committed a felony.” Id. The Court of Appeals believed Blair’s
interpretation of the statute would lead to incongruous and absurd or
unreasonable results.
The Court of Appeals rejected Blair’s invitation to adopt the logic set forth
in cases from Florida, Oklahoma, and Washington, D.C., which held that
multiple convictions of bail jumping for a single missed court appearance
constituted a double jeopardy violation. Instead, the Court of Appeals was
persuaded by the Commonwealth’s citation to the reasoning of a Connecticut
intermediate appellate court—even though that decision had been appealed to
and affirmed on different grounds by the Supreme Court of Connecticut.
Contrary to the cases cited by Blair, the Appellate Court of Connecticut found
no double jeopardy violation in a defendant’s conviction of two counts of bail
jumping in the first degree for missing a single court appearance. 3
The Connecticut decision held the statutory language evidenced a
legislative intent to punish defendants who willfully failed to attend court “to
answer to a specific criminal charge.” Garvin, 682 A.2d at 566 (emphasis
removed). The Connecticut court noted the state’s two separate bail jumping
3 State v. Garvin, 682 A.2d 562, 565-67 (Conn. App. Ct. 1996), aff'd, 699 A.2d 921 (Conn. 1997). 10 statutes, one felony and one misdemeanor, as further evidence the legislature
did not intend to merely punish the act of failing to appear. Had that been the
intent, the Connecticut court reasoned there would be no need to promulgate
two separate statutes with separate penalties for felony and misdemeanor bail
jumping. Id.
The Court of Appeals was persuaded by the Connecticut decision and
likewise concluded, based on Kentucky also having separate felony and
misdemeanor bail jumping statutes, 4 that the General Assembly plainly
intended the unit of prosecution for bail jumping to be “each specific charge for
which a defendant fails to appear, not the mere failure to appear itself.” Blair,
2023 WL 3767202, at *4. It also cited the Legislature’s use of the singular term
“a charge,” as opposed to plural terms such as “one or more charges,” as
supportive of its conclusion. Therefore, the Court of Appeals concluded no
double jeopardy violation had occurred and affirmed Blair’s multiple
convictions.
The majority today affirms the Court of Appeals, ostensibly on grounds of
statutory construction, but not inconsequentially, bases much of its decision
on administrative concerns relative to scheduling decisions. However, in my
view, the majority and Court of Appeals have incorrectly construed the plain
statutory language and have opened the door to prosecutorial charging or
4 The misdemeanor offense of bail jumping in the second degree is set forth in
KRS 520.080 and is nearly identical to KRS 520.070, with only the phrase “in connection with a charge of having committed a felony” in the latter being replaced by “in connection with a charge of having committed a misdemeanor” in the former. 11 docketing stratagems or machinations designed to overcome a defendant’s
fundamental rights regarding double jeopardy and duplicitous punishments.
The federal and state prohibitions against double jeopardy are
coextensive. The Fifth Amendment to the United States Constitution and
Section Thirteen of the Kentucky Constitution prohibit a person from being
twice punished or twice convicted for the same offense. It is inherent in the
double jeopardy prohibition that the multiple convictions must arise from the
same act. “The question of when an act or series of acts constitute a single
offense or multiple offenses is not new or novel[.]” Hennemeyer v.
Commonwealth, 580 S.W.2d 211, 214 (Ky. 1979). When a defendant is
convicted of violating one statute multiple times, this Court must determine the
unit of prosecution intended by the legislature to ensure each conviction
passes constitutional muster.
“[W]e recognize that the legislature makes the laws, deciding what is a
crime and the amount of punishment to impose for violations thereof.” Jones
v. Commonwealth, 319 S.W.3d 295, 299 (Ky. 2010) (citation omitted). “The
General Assembly enjoys plenary authority to establish criminal penalties
within constitutional bounds.” Rushin v. Commonwealth, 701 S.W.3d 293, 303
(Ky. 2024) (Nickell, J., dissenting) (citing Jones, 319 S.W.3d at 299).
Principles of statutory construction are at the forefront of this case. This
Court reviews questions of statutory construction de novo, and we grant no
deference to the lower courts. Louisville & Jefferson Cty. Metro. Sewer Dist. v.
Bischoff, 248 S.W.3d 533, 535 (Ky. 2007).
12 When interpreting statutes, this Court understands the words used in
their plain and ordinary meaning. Westerfield v. Ward, 599 S.W.3d 738, 747
(Ky. 2019). “Our goal in statutory interpretation is to carry out the intent of
the legislature.” Bloyer v. Commonwealth, 647 S.W.3d 219, 224 (Ky. 2022).
We resort to canons of construction or other extrinsic evidence of legislative
intent “[o]nly if the statute is ambiguous or otherwise frustrates a plain
reading[.]” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.
2011). It must further be presumed that “the General Assembly intended
neither an absurd nor an unconstitutional statute.” A.H. v. Louisville Metro
Gov’t, 612 S.W.3d 902, 908 (Ky. 2020).
Under the former KRS 432.361, entitled “Failure to appear on bail bond,”
both felony and misdemeanor bail jumping offenses were separately addressed
in a single statute, with the delineated punishment for each being based on the
seriousness of the underlying criminal charge. 5 Current bail jumping offenses,
5 Former KRS 432.361 read:
(1) Any person charged with a felony who is released from custody under bail, recognizance or a conditional release and who willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a felony and, upon conviction shall be sentenced to imprisonment for not less than one year nor more than ten years.
(2) Any person charged with a misdemeanor, conviction of which would carry a sentence of confinement in the county jail, who is released from custody under bail, recognizance or a conditional release and who willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a misdemeanor and, upon conviction shall be sentenced to confinement in the county jail for not more than twelve months. 13 however, are creatures of the 1974 regular session of the Kentucky General
Assembly which replaced the former KRS 432.361. The Penal Code became
effective as of January 1, 1975. In the fifty years since its enactment, no
amendments or modifications have been made to the original statutory
language.
Under the current statutory scheme, felony and misdemeanor bail
jumping offenses, along with their respective authorized punishments, are
delineated in two separate statutes, but with each retaining the same
underlying offense-based dichotomy as set forth in the former singular statute.
For this reason, the majority’s emphasis and reliance on the existence of two
separate statutes as evidence of a redirected legislative intent is misplaced.
Instead, a plain reading of the statute reveals the gravamen of the bail jumping
offense is the intentional failure to appear at a specified time and place, and
not the number of separate offenses or cases which are pending and scheduled
for disposition on that singular occasion.
This conclusion finds support from the official Kentucky Crime
Commission/LRC Commentary to KRS 520.070 which clarifies the statute is
“designed to compel a defendant’s attendance following his conditional release
from custody” and is not limited to punishing only those defendants who have
been released on bail bond and subsequently absent themselves from a
mandatory court appearance. The Commentary further specifies that when the
defendant intentionally fails to appear as directed, “[t]he seriousness of the
offense is based on whether the actor is charged with a felony or
14 misdemeanor.” Id. Thus, contrary to the conclusion of the majority and the
Court of Appeals, and the position urged by the Commonwealth, the statutory
phrase “in connection with a charge” does not dictate the unit of prosecution.
Rather, that phrase serves to distinguish between the class of crime, felony or
misdemeanor, for which a defendant may be charged for intentionally missing
a singular court date based on the seriousness of his underlying offense.
I would hold the pertinent statutory language is focused on a defendant’s
promise to appear at a “specified time and place” and the punishment is aimed
to penalize any intentional failure to appear at that time and place.
Consequently, the number of missed court appearances is the appropriate unit
of prosecution for bail jumping rather than the number and diversity of
charges left unaddressed.
Although Blair was released from custody under multiple bond orders,
he was directed to appear regarding each on the same day, at the same time, in
the same courtroom, and before the same judge. He intentionally failed to do
so, thereby violating the felony provisions of KRS 520.070 and subjecting
himself to the penal impositions authorized under the statute.
The clearly stated purpose of our Commonwealth’s bail jumping statutes
is not to “pile on” punishments for recalcitrant defendants, but rather to
encourage attendance at court appearances. Recently, we clarified that
[t]he difference between multiple, independent criminal acts and one continuous course of criminal conduct generally is “a sufficient break in the conduct and time so that the acts constituted separate and distinct offenses.” Welborn v. Commonwealth, 157 S.W.3d 608, 612 (Ky. 2005). This break need only be “a cognizable lapse in his course of conduct during which the defendant could have reflected 15 upon his conduct, if only momentarily, and formed the intent to commit additional acts.” Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky. 2012).
Johnson v. Commonwealth, 676 S.W.3d 405, 412 (Ky. 2023).
Here, the conduct giving rise to the multiple bail jumping charges for
which Blair was convicted and sentenced was his single act of intentionally
failing to appear at a particular court proceeding. Though charged separately,
all his underlying drug trafficking offenses had been docketed to be addressed
at that singular court appearance. There was no “lapse” in his absence which
would allow for multiple charges of bail jumping. There was but one contempt
of the system which could be punished under the statute. 6
The prohibited criminal conduct under the bail jumping statutes is one’s
intentional failure to appear at a particular court appearance, and not the
redundant violation of one or more court orders relating to multiple underlying
charges serving only as a predicate circumstance to the proscribed conduct.
Contrary to the majority’s assertions, Paulley v. Commonwealth, 323 S.W.3d
715 (Ky. 2010), is inapposite. Although the majority concludes Paulley holds
that a single act can support multiple charges, a closer reading reveals the
holding is not as broad as the majority suggests. Rather, it is more properly
limited to the specific charges at issue there—wanton endangerment.
6 Nothing in this dissent should be read to imply an intent to curtail or impair,
in any way, a court’s ability to punish violation of valid orders utilizing its inherent contempt powers. See Underhill v. Murphy, 117 Ky. 640, 78 S.W. 482, 484 (1904) (“The power of a court to punish for contempt is as old as the common law, and inherent in every court.”); Arnett v. Meade, 462 S.W.2d 940, 947 (Ky. 1971) (“The power of the courts to punish for contempt is one of the powers inherently belonging to the judiciary.”). 16 In Paulley, one of the co-defendants fired three shotgun blasts into a
closed doorway, killing a person on the other side. Apart from a murder
charge, the co-defendant was indicted on nine counts of wanton
endangerment, one for each person present in the home. In upholding the
charging decision and the trial court’s refusal to grant a directed verdict, this
Court stated “[w]e have held that Kentucky’s wanton endangerment statute is
designed to protect ‘each and every person from each act coming within the
definition of the statute. It is not a statute designed to punish a continuous
course of conduct.’” Id. at 724 (quoting Hennemeyer, 580 S.W.2d at 215).
Thus, based on the underlying purpose of the wanton endangerment statute,
multiple charges were warranted.
But, as its name plainly indicates, one must act wantonly to be found
guilty of wanton endangerment. “The offense of wanton endangerment is not
dependent upon intent. As a matter of fact, we can think of no situation where
intent to commit wanton endangerment would arise.” Hennemeyer, 580
S.W.2d at 215 (internal citation omitted). “How can one intend to engage in
wanton conduct? As the commentary to the Penal Code points out: ‘In other
words a person cannot intend to act ‘wantonly’ or ‘recklessly’ toward a result . .
.’ KRS 508.060 Commentary (1974).” Thomas v. Commonwealth, 567 S.W.2d
299, 302 (Ky. 1978) (overruled on other grounds by Ray v. Commonwealth, 611
S.W.3d 250 (2020)). Further, wanton endangerment is a result-based crime,
meaning it is the result which is criminalized rather than an act. Thus, each
17 instance of creating a substantial danger of death or physical injury becomes
the basis for a separate offense.
Conversely, KRS 520.070(1) specifically requires an intentional failure to
appear in order to be found guilty of bail jumping. The legislative intent behind
the statute is to encourage court appearances and it is thus an act which is
criminalized, not a result. As noted earlier, Blair committed only one act by
intentionally failing to appear for a single court appearance.
For these reasons, I believe the majority’s reliance on Paulley is
misplaced as that holding has no bearing on the issue squarely presented in
this appeal. The strained analogy calculated to square the two distinct and
incongruous cases simply defies logic, which, “like common sense, ‘must not be
a stranger in the house of the law.’” Southworth v. Commonwealth, 435 S.W.3d
32, 45 (Ky. 2014) (quoting Cantrell v. Kentucky Unemployment Ins. Comm’n,
450 S.W.2d 235, 237 (Ky. 1970)).
Multiplication of Blair’s singular statutory offense of failing to appear at a
particular time and location into five separate offenses reflecting multiple
matters scheduled to have been addressed during that singular appearance
and sentences violated his constitutional right to protection against double
jeopardy. In essence, he received multiple punishments under a single statute
for a single act. This was plainly improper. The decision of the majority to the
contrary is erroneous. Therefore, I dissent.
Keller and Thompson, JJ., joins.
18 COUNSEL FOR APPELLANT:
Jennifer Leigh Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General
J. Grant Burdette Assistant Attorney General