LawReader posts 28 decisions of Court of Appeals issued June 30th.

Important cases released by Court of Appeals on June 30.  The full synopsis and link to full text of each decision is available to subscribers to You may sign up online for only $34.95 a month.

Case #: 

1 A period of more than four years passed before the DRC issued his written recommendations. However, a violation of KRS 454.350 does not render a judgment or report void due to tardiness – See: Dissent by Judge Huddleston

2 the only exception to its exclusive remedy provision is an instance “where the injury or death [of an employee] is proximately caused by the willful and unprovoked physical aggression? of an employee, officer or director of an employer or an employer’s workers’ compensation insurance carrier.

3 appellant convicted of manslaughter, trial counsel was ineffective for failing to present evidence that the victim had committed acts of domestic violence against appellant during their marriage.

4 11.42 motion denied

5 A police officer may conduct an area search of the passenger compartment of an automobile to recover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.

6 to be published:  this vehicle checkpoint (roadblock) was not properly conducted so as to limit the troopers’ discretion at the scene or to maximize public safety in any way. It appears to have been an isolated stop later characterized as a checkpoint detention.

7 the Commonwealth must trace to a controlled-substances violation any property it desires to be forfeited, irrespective of the statutory presumptions in favor of forfeitability  -   The burden to rebut the presumption in favor of forfeiture shifts to the party opposing forfeiture only after

the Commonwealth satisfies its initial tracing burden.

8 Adoption of a county road must follow the formalities of KRS Chapter 178, which require more than merely including it on the county road map.

9 award of custody “will not be disturbed unless it constitutes an abuse of discretion.? Abuse of discretion is defined as “arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.

10 Where the police have destroyed  a tape containing potential evidence, not in bad faith, a missing evidence instruction is the appropriate remedy

11 to be published : Court does not have jurisdiction to order payment of warning order attorney’s fee, when defendant is indigent and other parties are not before the court. – we are confronted with a deprivation for which no remedy lies.

12 the record shows that Pamela and Oliver cohabited and that the trial court’s conclusion to the contrary was erroneous.

13 Courts refusal to allow introduction of tape of witness’s conflicting statement held harmless error

14 the filing of a CR 59.05 [motion] after a trial court has ruled on an RCr 11.42 motion does not suspend the running of the time for an appeal

15 the Parole Board was well within its discretion to use  prior violations to revoke Watkins-El’s parole.

16 After revocation of an initial probation, the defendant may file a new motion for shock probation, which can properly be reviewed by the court

17 Motion for directed verdict properly denied

18 TO BE PUBLISHED:  motion for new trial filed six years after sentencing not timely

19 KRS 533.040(3)  does not apply because a  previous order of the Campbell Circuit Court had already directed that the sentences were to  be served consecutively as mandated under KRS 533.060(3).

20 Although a detainer was served by the Commonwealth of Kentucky, Hall’s parole was not revoked until after he finished serving his federal court sentence. He was not entitled to credit for Federal time served before return to Kentucky.

21 ALJ erred in denying Hart TTD benefits simply because he was able to work his concurrent part-time job as a referee during the time he was disabled from performing the job in which the injury occurred

22 there is no right to be informed of parole eligibility before entering a guilty plea. As such, even if Jewell was misinformed by counsel about his parole eligibility, it would not be sufficient to invalidate his conviction.

23  the Jefferson Circuit Court correctly denied relief because the matter was not brought within a reasonable time, constituted a proscribed successive collateral attack, and was without merit 24 Myron’s current appeal is barred by the doctrine of res judicata

25 a genuine issue of material fact exists as to whether the Logans and the Normans properly exercised the right to redeem the property in question

26 believe it axiomatic that appellant’s one-year sentence upon the escape conviction must run consecutively with the with the forty-year federal sentence.

27 to be published: worker could not receive additional benefits upon reopening his claim for worsening of pneumoconiosis because he had no additional exposure to coal dust since filing an earlier petition to reopen.

28 It was not patently erroneous for the ALJ to fail to characterize the vast majority of Cline’s impairment as preexisting

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