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1

RENDERED: OCTOBER 29, 2020 

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0182-MR

ROBERT FOLEY APPELLANT

V. APPEAL FROM LAUREL CIRCUIT COURT

HONORABLE MICHAEL O. CAPERTON, JUDGE

NO. 91-CR-00180

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Robert Foley (“Foley”), is no stranger to this Court. In the 

twenty-seven years since he was sentenced to death for the murders of Rodney 

and Lynn Vaughn, Foley has mounted numerous assaults on his conviction. 

This appeal stems from a recent neuropsychological evaluation Foley received. 

In light of a clinical psychologist’s expert opinion that he suffers from certain 

cognitive impairments, Foley seeks to vacate his death sentences. Now, we 

must decide whether the trial court erred in denying Foley’s motion to vacate or 

set aside his sentences. Based on our review of the record and applicable law, 

we hold that the trial court did not err and affirm its Order.
2

I. FACTUAL BACKGROUND1

This case arises out of the shooting deaths of Rodney and Lynn Vaughn 

in August 1991. Foley shot and killed both brothers during a party at his 

Laurel County residence. At trial, the Commonwealth presented eyewitness 

testimony and circumstantial evidence identifying Foley as the killer and his 

attempts to conceal the crime. The jury accepted this evidence and found 

Foley guilty of two counts of murder. During the penalty phase of the trial, 

Foley’s counsel did not introduce mitigating evidence. Based on the jury’s 

recommendation, the trial court sentenced Foley to death for both murders.

This Court affirmed Foley’s convictions and sentences on direct appeal.2 

Foley then sought post-conviction relief pursuant to RCr3 11.42, alleging, as is 

relevant here, that trial counsel was ineffective due to his failure to adequately 

investigate and to present mitigating evidence during the penalty phase of his 

trial. Foley’s state post-conviction counsel did not include a claim that trial 

counsel’s ineffectiveness consisted in part of a failure to seek appointment of a 

neuropsychological expert.4 The circuit court denied post-conviction relief and 

this Court affirmed.5 In the intervening years, Foley unsuccessfully sought 

 

1 In light of the extensive procedural history of this case and the narrowness of 

the issue at hand, we set out only an abbreviated recitation of the facts. For a more 

comprehensive account, see Foley v. Commonwealth, 425 S.W.3d 880 (Ky. 2014); 

Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000); Foley v. Commonwealth, 942 

S.W.2d 876 (Ky. 1997).

2 Foley, 942 S.W.2d at 890.

3 Kentucky Rule of Criminal Procedure

4 Foley’s state post-conviction counsel did seek funding for a ballistics expert 

and a clinical social worker for assistance in the RCr 11.42 hearing. See Foley, 17 

S.W.3d at 887.

5 Foley, 17 S.W.3d
3

federal habeas corpus relief6 and unsuccessfully pursued numerous CR7 60.02 

motions.8

In 2018, Foley received funding to hire a neuropsychologist in connection 

with a separate federal habeas case.9 Dr. Daniel Martell (Dr. Martell), a clinical 

psychologist, evaluated Foley for over fifteen hours across two days. The 

examination consisted of a review of prior case materials, an investigation into 

Foley’s personal and medical history, and the evaluation of Foley’s performance 

on numerous neuropsychological tests. Based on his examination, Dr. Martell 

opined that Foley demonstrated a decline in cognitive abilities consistent with a 

history of prior head injuries and “appeared to suffer from progressive chronic 

traumatic encephalopathy (CTE).”10 Additionally, Dr. Martell opined that Foley 

exhibited “multiple areas of impairment in frontal lobe executive functioning.” 

Foley moved the Laurel Circuit Court to vacate his sentences due to this 

report. Foley alleged that the report was “newly discovered evidence” sufficient 

to grant relief under either CR 60.02, CR 60.03, RCr 10.02; and RCr 11.42(10). 

 

6 Foley v. Parker, 488 F.3d 377 (Cir. 2007). 

7 Kentucky Rule of Civil Procedure.

8 Foley v. Commonwealth, 425 S.W.3d 880 (Ky. 2014); Foley v. Commonwealth, 

No. 2008–SC–000909–TG, 2010 WL 1005873 (Ky. March 18, 2010); Foley v. 

Commonwealth, No. 2007-SC-000754-MR, 2009 WL 1110333 (Ky. Apr. 23, 2009); 

Foley v. Commonwealth, No. 2002-SC-0222-TG, 2003 WL 21993756 (Ky. Aug. 21, 

2003).

9 Foley is currently serving four additional death sentences related to four 

murder charges arising out of a separate incident. See Foley v. Commonwealth, 952 

S.W.2d 924 (Ky. 1997).

10 Foley Brief on Appeal, Ex. 2 at 58.
4

The circuit court denied the motion, finding it to be “procedurally improper, 

time-barred, or otherwise defective.” Foley now appeals as a matter of right.11

II. ANALYSIS12 

Foley seeks relief under three different procedural rules, but each shares 

a basic premise: Dr. Martell’s expert opinion and report constitute newly 

discovered evidence of such import that a reasonable juror, had he or she 

known of it, would not have voted to impose the death penalty. The circuit 

court’s Order purportedly declines to reach the merits. Instead, the court 

dismissed each challenge on procedural grounds. The gist of the court’s 

reasoning was that the report is not new evidence. Instead, that circuit court 

found that the report rearticulates similar claims of head injuries that Foley 

has raised for years. We consider these general arguments in context of the 

specific procedural vehicles Foley raised. 

A. CR 60.02

First, Foley seeks relief from his sentences under CR 60.02. On appeal, 

we review the denial of a CR 60.02 motion for abuse of discretion.13 The test 

for abuse of discretion is whether the trial court’s decision was “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.”14 We will 

 

11 KY. CONST. § 110(2)(b); Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky.

1990) (Court of Appeals has no authority to review any matter affecting the imposition 

of death sentence).

12 Each of these issues is preserved via Foley’s omnibus motion to vacate. See 

Foley Brief, Ex. 3 at 20-36.

13 Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996).

14 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations 

omitted).
5

affirm the lower court’s decision unless doing so would be a “flagrant 

miscarriage of justice.”15

In addition to the causes enumerated in subsections (a)-(e), CR 60.02(f) 

provides that a court may relieve a party from its final judgment for “any other 

reason of an extraordinary nature justifying relief.” Ordinarily, the rule 

requires claims grounded on the discovery of new evidence to be brought 

within one year.16 Our case law recognizes, however, that evidence discovered 

outside of the one-year time limit may support a claim under 60.02(f) in certain 

limited circumstances. 17 “In order for newly discovered evidence to support a 

motion for new trial it must be of such decisive value or force that it would, 

with reasonable certainty, have changed the verdict or that it would probably 

change the result if a new trial should be granted.”18

A movant must bring an action under CR 60.02(f) “within a reasonable 

time” of the entry of judgment. This determination is inherently fact-specific

and, as such, is best placed in the trial court’s discretion.19 While the distance 

between final judgment and the motion is a relevant factor, a reviewing court 

should consider the basis for the movant’s claim, when the information 

 

15 Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

16 See CR 60.02(b).

17 See Foley, 425 S.W.3d at 886.

18 Jennings v. Commonwealth, 380 S.W.2d 729, 730 (Ky. 1963)(internal 

quotations omitted).

19 See Gross, 648 S.W.2d at 858.
6

supporting such claim was discovered by the movant, and the reason behind 

the delay in discovering the information and the filing of the motion.20

Further, Kentucky law expresses a strong aversion to successive postjudgment motions.21 In the context of CR 60.02, a defendant must only raise 

those claims which she could not have raised either on direct appeal, in a RCr 

11.42 action, or in another CR 60.02 motion.

22 Evidence discovered after the 

conclusion of all prior proceedings, in a limited set of circumstances, may 

provide an adequate basis for a subsequent CR 60.02 motion.

The trial court found that Foley’s motion was untimely and successive 

because the facts underlying Dr. Martell’s opinion—Foley’s history of head 

injuries—were known to Foley at the time of trial and could have been raised in 

a prior proceeding. Effectively, the trial court found that Dr. Martell’s report 

was not “newly-discovered.” In doing so, the trial court relied on our previous 

opinion in this litigation concerning a similar CR 60.02 motion.23 In that 

previous decision, this Court held that an expert opinion “cannot fit the 

definition of newly-discovered evidence unless it is based on facts that were not 

 

20 See e.g., Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008)(holding 

that a CR 60.02 motion filed eight years after trial was timely when new DNA testing 

methods gave rise to exculpatory evidence). By contrast, when the information 

supporting a CR 60.02(f) motion was known to the defendant at trial or within one 

year of final judgment, the reviewing court will find the motion to be time-barred. See 

Foley, 425 S.W.3d at 884-886); see also, Stoker v. Commonwealth, 289 S.W.3d 592, 

594-95 (Ky. App. 2009)(holding that trial court did not abuse its discretion when it 

found that motion premised on facts known to defendant for ten years was untimely).

21 See e.g. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Gross, 

648 S.W.2d at 853-56.

22 McQueen, 948 S.W.2d at 416.

23 Foley, 425 S.W.3d at 887.
7

previously known and could not with reasonable diligence have been 

discovered.”24 There, we rejected on the merits a CR 60.02 motion premised on 

a ballistic report that reexamined and reinterpreted previously known facts.25 

Here, the trial court reasoned that Dr. Martell’s report was similar in 

kind to the ballistics report. The trial court found that Martell’s opinion was 

“derived from facts known to the [Foley] for his literally his entire life.”26 

Moreover, the issue of Foley’s history of head injuries was previously raised in 

his initial RCr 11.42 hearing, albeit without any medical reports supporting his 

claims.

27 In sum, the trial court concluded that this was not newly discovered 

evidence of sufficient gravity to justify reopening Foley’s case.

Foley urges us to reject the comparison to the ballistics report. Instead, 

he argues that this Court’s decision in Bedingfield supplies the more 

appropriate analogy. There, this Court held that the presence of physical 

evidence, discovered through DNA-testing methods not available at the time of 

trial, that implicated another person for the commission of the crime in 

question was grounds for a new trial.28 Foley claims that Dr. Martell’s 

conclusions regarding his cognitive impairments arise out of newly-performed 

psychological tests rather than a reexamination of Foley’s prior medical history. 

Under Foley’s theory, Dr. Martell’s report supplies a basis for his conclusion 

 

24 Id.

25 Id.

26 Foley Brief, Ex.1 at 102.

27 See Foley, 17 S.W.3d 878 (Ky. 2000).

28 See Bedingfield, 260 S.W.3d at 815. 
8

independent of facts previously in the record, thereby distinguishing it from the 

ballistics report.

While acknowledging that it is a somewhat close call, we do not 

determine that the trial court abused its discretion. While Dr. Martell 

performed an independent evaluation of Foley’s cognitive abilities as they stood 

in 2018, Dr. Martell’s conclusions explicitly take into account Foley’s history of 

head injuries. In his report, Dr. Martell opines that Foley’s decline in cognitive 

abilities was “consistent with his history of multiple head injuries” and was 

consistent with “progressive CTE.”29 While Foley never underwent 

psychological testing before 2018, he first raised the issue of his head injuries 

over 20 years ago in his initial state postconviction proceeding. So, while he 

now possesses a new report claiming that he currently exhibits signs of 

neuropsychological decline, it is not as if the possibility that Foley may suffer 

from effects of head trauma could not have been raised in a previous 

proceeding. In fact, it was raised. Therefore, on the facts of this case, we hold 

that the trial court did not abuse its discretion in finding that Foley’s CR 60.02 

motion was procedurally barred.

B. RCr 10.02 and 10.06

Foley advances a similar argument under RCr 10.02 and 10.06. RCr 

10.02 permits a court to “grant a new trial for any cause which prevented the 

defendant from having a fair trial, or if required in the interest of justice.” 

Ordinarily, a motion for a new trial on the basis of newly discovered evidence 

 

29 Foley Brief, Ex. 2 at 58.
9

may only be brought later than one year after the entry of judgment “if the 

court for good cause so permits.” While the standards are not identical, “[a]n 

extraordinary circumstance under CR 60.02(f) always establishes good cause 

under RCr 10.06(1).”30 So each inquiry takes into consideration similar 

factors, given differing weights. In this case, we do not find that distinction 

controlling. Just as we determine that Dr. Martell’s report does not constitute 

an extraordinary circumstance under CR 60.02, we similarly conclude that it 

does not constitute good cause pursuant to 10.06.

C. RCr 11.42

Foley’s claim under RCr 11.42 (10) takes three alternative forms. To the 

extent that Foley advances the same argument for relief under RCr 11.42 as he 

maintains under CR 60.02, we find the motion to be procedurally improper. 

Such a theory impermissibly elides the standard for relief under CR 60.02 and 

RCr 11:42. Kentucky law is very clear the standards for relief under CR 60.02 

and RCr 11.42 are distinct; one cannot simply repackage their 60.02 argument 

in an 11.42 motion or vice versa.31 

To the extent that Foley attempts to relitigate the effectiveness of counsel 

in his initial post-conviction proceedings, his claims are procedurally barred. 

He brings his current challenge under RCr 11.42(10), which imposes a threeyear period from final judgment during which a movant must bring their 

 

30 Bedingfield, 260 S.W.3d at 811.

31 See Gross, 648 S.W.2d at 856 (“The structure provided in Kentucky for 

attacking the final judgment of a trial court in a criminal case is not haphazard and 

overlapping but is organized and complete.”)
10

claim.32 While the rule provides an exception for claims predicated on newly 

discovered evidence, Foley already pursued a RCr 11.42 claim against trial 

counsel. And RCr 11.42(3) provides that the motion to vacate “shall state all 

grounds for holding the sentence invalid of which the movant has knowledge.” 

Given that Foley’s prior history of head injuries was both known to him at that 

time and actually litigated in his state postconviction hearing, he cannot now 

raise that issue against trial counsel under the plain language of RCr 11.42(3).

But Foley anticipated our conclusion and offers a third way to consider 

his 11.42(10) claim. He argues that if we find that he is procedurally barred 

under 11.42(3) from asserting an ineffectiveness-of-trial-counsel claim, then 

that procedural bar should be excused due to the ineffectiveness of his state 

post-conviction proceedings counsel. While this theory is not currently 

recognized under Kentucky law, Foley asks us to extend the holdings of 

Martinez v. Ryan33 and Trevino v. Thaler34 to claims arising out of Kentucky 

post-conviction proceedings. Specifically, he contends that this Court’s holding 

in Bowling v. Commonwealth implicitly compels this result.35 This argument 

requires unpacking. 

Under the doctrine of procedural default, a federal habeas court will not 

review the merits of claims that a state court declined to hear due to the failure 

 

32 See RCr 11.42(10).

33 566 U.S. 1 (2012).

34 569 U.S. 413 (2013).

35 163 S.W.3d 361 (Ky. 2005).
11

of a prisoner to comply with a state procedural rule.36 The theory behind this 

doctrine is that principles of federalism require federal courts to respect the 

finality of state court judgments.37 However, this general rule has an 

exception. Federal courts may invoke their equitable powers to excuse a 

procedural default and hear the merits of a case if a prisoner can show cause 

for the default and prejudice resulting from a violation of federal law.38 

This Court has, on at least one occasion, looked to federal case law in 

this area for support in fashioning equitable relief. In Bowling, this Court 

utilized the federal cause-and-prejudice standard to decide if a prisoner’s 

waiver of a constitutional claim should be excused.39 Specifically, the Court 

considered whether the “miscarriage of justice” exception, which allows a 

prisoner to maintain a merits-based challenge to a defaulted claim even if she 

fails to show cause for the default, permitted them to consider the merits of the 

prisoner’s claim.40 While this Court did not engage in an exhaustive analysis 

on the applicability of that exception in state court proceedings, we did use the 

federal analytical framework to guide the use of our own equitable discretion.

 

36 Martinez, 566 U.S. at 9 (citations omitted).

37 See Davila v. Davis, 137 S. Ct 2058, 2064 (2017).

38 See Martinez, 566 U.S. at 10 (citing Coleman v. Thompson, 501 U.S. 722, 750 

(1991)).

39 163 S.W.3d at 372-373.

40 Id. The “miscarriage of justice” exception allows a court to review the merits 

of a procedurally defaulted claim even if the prisoner cannot show cause for the 

default “where a constitutional violation has probably resulted in the conviction of one 

who is actually innocent.” Id. (citing Coleman, supra, at 749-50).
12

For years, “[n]egligence on the part of a prisoner’s postconviction 

attorney [did] not qualify as cause.”41 Martinez expanded this exception, 

holding that in states where an ineffective-assistance-of trial-counsel claim 

must first be brought in a collateral proceedings, the lack of state postconviction counsel or the ineffectiveness of state post-conviction counsel, under 

the standard of Strickland v. Washington42, may serve as “cause” to excuse a 

procedural default.43 The following year, the United States Supreme Court 

further extended the exception to cover states, which, as a matter of procedural 

design, deny a meaningful opportunity for prisoners to raise ineffectiveassistance-of-trial-counsel claims outside of collateral proceedings.44

With that background in mind, we now address Foley’s claim. Foley 

argues that the Martinez/Trevino rule applies to our review of RCr 11.42 

proceedings because we have already recognized the cause-and-prejudice 

exception in Bowling. Since we have adopted this exception before Martinez 

and Trevino, Foley contends that the subsequent expansion of the exception 

brought about by those decisions holds sway over Kentucky courts. This is an 

interesting question that deserves consideration in the appropriate case. But 

this case is not that case.

 

41 Id. (citing Maples v. Thomas, 565 U.S. 266, 280 (2012)).

42 466 U.S. 668 (1984).

43 Martinez, 566 U.S. at 13-14.

44 See Trevino v. Thaler, 569 U.S. 413 (2013). The Sixth Circuit held that 

Kentucky’s state postconviction regime fall under the scope of Trevino. Woolbright v. 

Crews, 791 F.3d 628 (2015).
13

Let’s assume that Martinez and Trevino apply. Under those cases, Foley 

may establish “cause” to excuse a procedural default where: (1) his claim of 

ineffectiveness-of-trial-counsel is “substantial” and (2) the cause consisted 

either of the lack of state-postconviction-proceeding counsel or the 

ineffectiveness of state-postconviction-proceeding counsel.45 Thus, the 

ineffectiveness of state-postconviction-proceedings counsel is a necessary 

condition for relief under Martinez and Trevino.

46 Here, we are not convinced 

that Foley can demonstrate that his counsel performed below constitutional 

standards in the RCr 11.42 proceedings.

We have described Strickland as containing two prongs, both of which 

must be met to sustain a claim of ineffective assistance of counsel: the 

“performance” and “prejudice” prongs.47 To meet the “performance” prong, a 

movant must show that “counsel’s representation fell below an objective 

standard of reasonableness.”48 To meet the “prejudice” prong, a movant must 

show “a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.”

49

Here, Foley claims that his counsel in his RCr 11.42 proceedings

rendered ineffective representation due to their failure to adequately develop a 

claim that trial counsel was ineffective in failing to present mitigating evidence 

 

45 See Trevino, 569 U.S. at 423.

46 See Martinez at 16. (“When faced with the question whether there is cause for 

an apparent default, a State may answer...that the attorney in the initial-review 

collateral proceeding did not perform below constitutional standards.”).

47 See Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).

48 Strickland, 466 U.S. at 687–88.

49 Id. at 694.
14

concerning Foley’s head injuries and their effect on his neuropsychological 

well-being. Under the performance prong, this challenge poses two questions. 

First, whether, under an objective standard of reasonableness, Foley’s postconviction counsel should have raised a claim that trial counsel was ineffective 

for their failure to pursue neuropsychological testing in preparation for trial. 

And second, whether Foley’s post-conviction counsel should have sought funds 

for a neuropsychological expert for use at the RCr 11.42 hearing.

As to the latter question, we cannot find that Foley’s post-conviction 

counsel erred in failing to request funds for psychological testing. We observe 

that a claimant did not have a constitutional right to expert assistance in a 

collateral attack proceeding at the time of Foley’s RCr 11.42 hearing.50 Nor do 

they today. Importantly there is a “strong presumption” that an attorney’s 

decision to pursue some claims and decline to pursue others is a tactical 

choice.

51 And “[r]are are the situations in which the wide latitude counsel 

must have in making tactical decisions will be limited to any one technique or 

approach.”

52 

Foley’s counsel requested funding for both a ballistics expert and a 

clinical social worker and was denied on both counts. The decision to pursue 

funding for experts to help develop what appears at the time to be stronger 

 

50 See Foley, 17 S.W.3d at 886-87.

51 Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (“When counsel focuses on some 

issues to the exclusion of others, there is a strong presumption that he did so for 

tactical reasons rather than through sheer neglect.”).

52 Harrington v. Richter, 562 U.S. 86, 106 (2011)(citations omitted)(internal 

quotations omitted).
15

claims is a reasonable tactical decision. At the time of the RCr 11.42 

proceeding, numerous witnesses were available to recount tales of Foley’s 

brutal upbringing.53 Additionally, there was a factual dispute about the nature 

of the firefight. Compared to general allegations of previous head injuries, 

numerous as they were, we cannot say that counsel’s choice to lend support to 

what he or she determined to be stronger mitigating evidence was 

constitutionally deficient performance.

Similarly, we cannot conclude that post-conviction counsel was 

ineffective in failing to bring a claim of ineffective-assistance-of-trial-counsel 

related to the failure to seek funding for a neuropsychological expert. Foley’s 

post-conviction counsel did raise claims based on trial counsel’s failure to 

adequately investigate and present mitigating evidence.54 As it relates to 

evidence of head injuries, counsel challenged trial counsel’s failure to introduce 

the testimony of several family members who recalled head injuries suffered by 

Foley during his childhood. While this court rejected the mitigating force of 

that testimony due in part to the absence of medical records supporting 

trauma,

55 we do not find that post-conviction counsel rendered ineffective 

performance.

“Reliance on the harsh light of hindsight to cast doubt on [proceedings] 

that took place” nearly two decades ago runs contrary to the Strickland

 

53 See generally Foley, 17 S.W.3d 878 (2000).

54 Id. at 883.

55 Id.
16

standard.56 We must evaluate counsel’s conduct in context of the time in 

which he or she acted.57 In this case, post-conviction counsel raised over 

twenty-six grounds for ineffective-assistance-of-trial counsel, including the 

failure to introduce mitigating testimony regarding Foley’s head injuries at trial. 

In light of these allegations, Foley’s counsel sought expert assistance to develop 

the strength of the mitigation arguments concerning Foley’s background. From 

the perspective of post-conviction counsel, there were surely a number of 

claims and experts that he felt trial counsel might have pursued. However, an 

attorney is entitled to filter activities that appear “distractive from more 

important duties.”58 In this case, we cannot say that it was unreasonable to 

confine the ineffective-assistance-of-trial-counsel claim to the failure to present 

the testimony of family members as opposed to a psychological expert who may 

or may not have been provided. While this calculus may change in light of 

contemporary understanding, that is not the inquiry. Considering the record 

before us, Foley’s state post-conviction counsel did not fail to meet the 

performance prong of Strickland.

In sum, we do not need to reach the question of whether Martinez and 

Trevino apply to Kentucky proceedings because, even if they did, Foley’s postconviction counsel provided constitutionally adequate assistance. As a result, 

 

56 See Harrington 562 U.S. at 107.

57 Id. 

58 Id. (citing Bobby v. Van Hook, 558 U.S. 4, 11, (2009)(per curiam)); accord

Haley v. Commonwealth, 586 S.W.3d 744 (Ky. App. 2019), review denied (Oct. 24, 

2019)
17

Foley is procedurally barred from raising a new ineffectiveness of trial counsel 

claim pursuant to RCr 11.42(3).

IV. CONCLUSION

In light of the facts of this case and the applicable standard of review, we 

conclude that the trial court did not abuse its discretion in denying Foley’s 

motion. As such, we affirm.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

David M. Barron

Assistant Public Advocate

Department of Public Advocacy

Michael J. O’Hara

O’Hara, Taylor, Sloan, & Cassidy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron 

Attorney General of Kentucky

Emily Bedelle Lucas

Assistant Attorney General