Opposition Brief — Efrain Diaz, Jr. and Justin Smith, Petitioners v. Kentucky

No. 19-8873

CAPITAL CASE

IN THE SUPREME COURT

OF THE UNITED STATES

JUSTIN SMITH and EFRAIN DIAZ, Jr.

PETITIONERS

v.

COMMONWEALTH OF KENTUCKY

RESPONDENT

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

____________________

Respectfully submitted,

DANIEL CAMERON

Attorney General of Kentucky

MATTHEW R. KRYGIEL

Assistant Attorney General

Counsel of Record

Office of the Solicitor General

Criminal Appeals Unit

1024 Capital Center Drive

Frankfort, KY 40601

(502) 696-5342

matthew.krygiel@ky.gov

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................................ i

TABLE OF AUTHORITIES ................................................................................................................ ii

FACTS AND OPINIONS BELOW .................................................................................................... 1

REASONS TO DENY THE PETITION........................................................................................... 3

I.

Petitioners have not successfully established this Court’s

jurisdiction. ................................................................................................................... 3

II.

The Kentucky Supreme Court did not violate due process

considerations by failing to request supplemental briefing. ................... 7

CONCLUSION ...................................................................................................................................... 12

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TABLE OF AUTHORITIES

Cases

Baze v. Rees, 553 U.S. 35, 47 (2008) .............................................................................. 6

Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019) ....................................................... 7

City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)........................ 4

Commonwealth Cabinet for Health & Family Servs., Dep’t for Medicaid Servs.

v. Sexton by & through Appalachian Reg’l Healthcare, Inc.,

566 S.W.3d 185, 195 (Ky. 2018) .................................................................................... 8

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020).................................... 2,4,5,6

Commonwealth v. Guernsey, 501 S.W.3d 884, 888 (Ky. 2016) ..................................... 6

Commonwealth v. Hughes, 873 S.W.2d 828, 829 (Ky. 1994) ....................................... 7

Commonwealth v. Steadman, 411 S.W.3d 717, 721 (Ky. 2013) ................................... 8

Di Bella v. United States, 369 U.S. 121, 124 (1962) ..................................................... 4

Diaz v. Commonwealth, 2017-SC-536-TG .................................................................... 2

Ex parte McCardle, 7 Wall. 506, 514 (1869) ............................................................... 10

Florida v. Thomas, 532 U.S. 774, 777 (2001) ............................................................... 4

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 54 (1989) .......................................... 3

Foster v. Chatman, 136 S.Ct. 1737, 1745 (2016) .......................................................... 9

Glossip v. Gross, 576 U.S. 863, 898 (2015) ................................................................... 6

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (1988) ....................................... 10

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ............................................................. 8

ii

Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978) ............................................................. 9

Jackson v. Commonwealth, 487 S.W.3d 921, 929 (Ky. App. 2016) .............................. 8

Kentucky High School Athletic Ass'n v. Edwards, 256 S.W.3d 1, 4 (Ky. 2008) ........... 9

Knight v. Florida, 528 U.S. 990 (1999) ......................................................................... 7

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)...................................... 10

Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884) .............................. 10

Mathews v. Eldridge, 424 U.S. 319, 335 (1976) .......................................................... 11

Miller v. Alabama, 567 U.S. 460 (2012) ........................................................................ 5

Mills v. Alabama, 384 U.S. 214 (1966) ......................................................................... 4

Padgett v. Steinbrecher, 355 S.W.3d 457, 459–60 (Ky. App. 2011) .............................. 9

Roper v. Simmons, 543 U.S. 551 (2005) ..................................................................... 2,5

Servs. v. Sexton by & through Appalachian Reg’l Healthcare, Inc.,

566 S.W.3d 185, 195 (Ky. 2018) .................................................................................... 8

Smith v. Commonwealth, 2017-SC-537-TG .................................................................. 2

Stanford v. Kentucky, 492 U.S. 361 (1989) ................................................................... 5

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998) ........................... 10,11

Taylor v. Commonwealth, 63 S.W.3d 151, 156 (Ky. 2001) ........................................... 8

Thompson v. Oklahoma, 487 U.S. 815 (1988).......................................................... 5,10

Veith v. City of Louisville, 355 S.W.2d 295, 297–98 (Ky.1962) .................................... 8

Warth v. Seldin, 422 U.S. 490, 518 (1975) .................................................................. 11

White v. Commonwealth, 600 S.W.3d 176 (Ky. 2020) .................................................. 6

iii

Whittle v. Commonwealth, 352 S.W.3d 898, 906 (Ky. 2011) ........................................ 8

Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005) ...................................................... 9

Statutes:

28 U.S.C. § 1257(a) ........................................................................................................ 3

Kentucky Constitution, Section 112(5) ..................................................................... 2, 7

Kentucky Revised Statute 532.075(3)........................................................................... 6

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FACTS AND OPINIONS BELOW

In Lexington, Kentucky on April 17, 2015, Jonathan Krueger, a student at the

University of Kentucky, and his friend, Aaron Gillette, were walking home. After

observing a van heading down a one-way street in the wrong direction, Krueger and

Gillette attempted to alert the driver. The van stopped and two assailants exited and

brandished firearms. Krueger and Gillette were approached and robbed at gunpoint.

When Gillette began to resist, the gunmen opened fire.

While Gillette escaped

unharmed, Krueger was shot and killed.

Co-defendants Efrain Diaz, Jr. and Justin Smith were both indicted for the

murder of Krueger as well as other related charges. The Commonwealth of Kentucky

gave notice of an aggravating circumstance (first-degree robbery) that made Diaz and

Smith eligible for enhanced penalties–including the death penalty.

Diaz and Smith were over 18 at the time of their offense conduct (Diaz – 20

years and seven months; Smith – 18 years and five months). Prior to trial, defense

counsel for both defendants filed a motion seeking to exclude the death penalty as a

sentencing option–asking the trial court to extend this Court’s decision in Roper v.

Simmons1 to prohibit defendants under age 21 from being eligible for the death

penalty. The primary basis for the motion was that brain development continues into

the mid-twenties, therefore, defendants that commit murder between ages 18 and 21

should get the same protections that juveniles received in Roper. The Commonwealth

543 U.S. 551 (2005). In Roper, this Court declared it unconstitutional under the Eighth Amendment

for a state to execute any individual who was under the age of 18 at the time of the offense.

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countered with a purely legal argument: that clearly established precedent from this

Court (Roper) was determinative. Despite this Court drawing a clear line at age 18

and no state legislature or court having ever expanded Roper in the manner

suggested by Diaz and Smith, the trial court agreed and granted the motion.

The Commonwealth filed an interlocutory appeal and on March 26, 2020, a

unanimous Kentucky Supreme Court vacated the trial court’s order and remanded

the case to the trial court for further proceedings consistent with its opinion.

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020).2 The court noted that

because Smith and Diaz had not been tried, convicted, and sentenced to death, the

preemptive ruling contradicted controlling precedent–their claims were not

justiciable3 due to lack of standing and ripeness. Bredhold, at 415. In particular,

without a sentence of death there was no “injury” to invoke constitutional jurisdiction.

Id.

Diaz and Smith then petitioned this Court for review.

After the

Commonwealth initially filed a waiver, a response was ordered.

The Petitioners’ individual cases below were styled as Diaz v. Commonwealth, 2017-SC-536-TG and

Smith v. Commonwealth, 2017-SC-537-TG. However, the cases of Smith, Diaz, and a third defendant

(Bredhold) from a separate case were consolidated before the Kentucky Supreme Court because they

all benefitted from identical pretrial rulings from the same trial court judge. Therefore, the

Petitioners’ case below is identified in legal reporting systems as Commonwealth v. Bredhold, 599

S.W.3d 409 (Ky. 2020).

2

The Kentucky Constitution, Section 112(5), vests the trial court with jurisdiction over “justiciable

causes” not vested in some other court.

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2

REASONS TO DENY THE PETITION

I.

Petitioners have not successfully established this

Court’s jurisdiction.

In the petition, the first claim raised by Diaz and Smith concerns whether a

litigant is required to show an “actual or imminent” injury in a criminal case in order

to invoke standing, and if so, whether the pretrial prospect of being sentenced to

death is sufficient to meet that requirement.

Petition, pp. 8-22.

Petitioners’

argument ignores the finality requirement necessary to establish jurisdiction in this

Court.

The applicable jurisdictional statute for this Court invites review of “[f]inal

judgments or decrees,” 28 U.S.C. § 1257(a), which have been “rendered by the highest

court of a State in which a decision could be had . . . where any title, right, privilege,

or immunity is specially set up or claimed under the Constitution.” In a criminal

prosecution, finality is defined generally as “a judgment of conviction and the

imposition of a sentence.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 54 (1989)

(emphasis added).

The insistence on finality and prohibition against piecemeal

review seek to discourage “undue litigiousness and leaden-footed administration of

justice” which is viewed as particularly damaging to the conduct of criminal cases.

Di Bella v. United States, 369 U.S. 121, 124 (1962).4 The Kentucky Supreme Court

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In Florida v. Thomas, 532 U.S. 774, 777 (2001), this Court noted there are four very narrow exceptions to the

finality rule, however, it is easily discernable that none are applicable to Smith and Diaz. Three of the four finality

exceptions require that the state’s highest court have “finally” decided the underlying claim. Id. As previously

explained, because a lack of constitutional jurisdiction correctly halted consideration of the underlying Eighth

Amendment claim (lack of standing because no injury exists until a death sentence is imposed), those exceptions are

inapplicable.

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identified this underlying principle, indicating that the state does not acquire the

power to impose a criminal penalty with which the Eighth Amendment is concerned

until after it has secured a formal adjudication of guilt in accordance with due process

of law. Bredhold, 599 S.W.3d at 417 (citing City of Revere v. Massachusetts Gen.

Hosp., 463 U.S. 239, 244 (1983)). Kentucky’s highest court also noted that although

“death penalty trials are unquestionably more involved than typical felony trials,

requiring both group and individual voir dire and presenting issues and procedures

unique to the gravity of the penalty sought, the focus of Eighth Amendment analysis

is not the trial, but rather the actual penalty imposed.” Id. at 415. Indeed, it is the

penalty that is the subject of Eighth Amendment criminal jurisprudence, not the

burdens of preparing for trial.

The Commonwealth’s position is solidified by looking at prior Eighth

Amendment challenges seeking to disqualify certain classes of defendants from the

death penalty based on age. The seminal age-related Eighth Amendment cases that

have come to define the excluded classes involved claims that were made after the

petitioners had been convicted and the death penalty was imposed. See Roper v.

The remaining exception involves cases in which there are further proceedings—even entire trials—yet to occur

in the state courts, but for one reason or another the federal issue is conclusive or the outcome of further

proceedings preordained. To illustrate this exception, this Court gave the example of Mills v. Alabama, 384 U.S. 214

(1966). In Mills, the defendant conceded his guilt and his only defense to the state criminal charge was his federal

constitutional claim that he was entitled under the First Amendment to print an offending editorial. This Court found

that case was “final” because the determination of the federal claim would ultimately decide the case, i.e., it would

create a valid, insurmountable defense or a certain, undeniable conviction. But see Di Bella, at 124 (1962) (denial of

suppression motion insufficiently final to warrant immediate pre-conviction review).

Here the Petitioners’ request for review is based on a theory that the Kentucky Supreme Court misconstrued this

Court’s standing jurisprudence and the underlying claim should have been addressed. The Petitioners’ prayer for

relief asks this Court to grant review, vacate the opinion of the Kentucky Supreme Court, and order the Kentucky

Supreme Court to decide their Eighth Amendment claim on the merits. This Court’s review process would not

address the underlying claim or ultimately decide the case, merely send it back for a merits review. Therefore, this

finality exception also does not apply.

4

Simmons, 543 U.S. 551 (2005) (successive state post-conviction proceeding); Stanford

v. Kentucky, 492 U.S. 361 (1989) (two petitioners, both on direct appeal); Thompson

v. Oklahoma, 487 U.S. 815 (1988) (direct appeal). Similarly, although not imposing

death, in Miller v. Alabama, 567 U.S. 460 (2012), two juvenile petitioners were both

convicted and sentenced to mandatory terms of life without parole, and they raised

their Eighth Amendment claims after sentencing (one on direct appeal and the other

via a state habeas proceeding). In all of the aforementioned cases the focus of the

Eighth Amendment claim was the actual imposition of the penalty as a precursor to

making a claim.

The reason review is inappropriate at the pretrial stage of a criminal case is

evident. The Kentucky Supreme Court’s decision is not plainly final, it is subject to

further proceedings in the state courts, and is dependent on a significant number of

conditions that have the potential to render this case moot. Specifically, the

Commonwealth will need to succeed in gaining a murder conviction and prove the

existence of an aggravating circumstance for Diaz and Smith just to be eligible for a

death sentence. Bredhold, 599 S.W.3d at 422. During the sentencing phase, in which

youth is a proper mitigating factor, the jury will undoubtedly hear the Petitioners’

evidence regarding brain development and how those concepts specifically relate to

Petitioners. Id. At that point, the jury would need to recommend a death sentence–

an appropriately tall order since the ultimate penalty is reserved for a specific class

of convicted criminals that have committed the most heinous crimes.5 Id. Should the

A majority of states, as well as the federal government, impose capital punishment as a sentence for

the worst murders. See Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion). For perspective, it has

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jury recommend a death sentence, the trial judge could negate a death verdict for a

number of reasons, such as that the penalty is deemed to be inherently

disproportionate. Id.; Commonwealth v. Guernsey, 501 S.W.3d 884, 888 (Ky. 2016).

Finally, if the death penalty were imposed at final sentencing, the Kentucky Supreme

Court would address any alleged direct appeal errors and conduct a statutorily

mandated comparative proportionality review (pursuant to Kentucky Revised

Statute 532.075(3)).

Id.

Smith and Diaz would be able to raise their Eighth

Amendment claim during their direct appeal (among other attacks on the potential

sentence), and as noted by the Kentucky Supreme Court in its opinion, review of the

Eighth Amendment claim at that time would occur with a fully developed record.

Bredhold, 599 S.W.3d at 423.

To permit the Petitioners to pursue this claim pretrial will add to the

“proliferation of labyrinthine restrictions on capital punishment.” See Glossip v.

Gross, 576 U.S. 863, 898 (2015) (Scalia, J., concurring). Extensive litigation over

every element of capital litigation has frustrated, delayed, or halted executions

throughout the United States. “Courts should police carefully against attempts to use

[death-penalty litigation] as tools to interpose unjustified delay.” See Bucklew v.

Precythe, 139 S. Ct. 1112, 1134 (2019).6 This Court’s finality jurisprudence serves to

been over six years since a Kentucky jury recommended a death sentence.

Commonwealth, 600 S.W.3d 176 (Ky. 2020).

See White v.

Justice Thomas has noted that he is “unaware of any support in the American constitutional

tradition or in this Court's precedent for the proposition that a defendant can avail himself of the

panoply of appellate and collateral procedures and then complain when his execution is delayed.”

Knight v. Florida, 528 U.S. 990 (1999) (Thomas, J., concurring in denial of certiorari). Indeed, the

built-in delay that necessarily comes with capital litigation serves to highlight the importance of not

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avoid advisory opinions and the waste of time and judicial resources to settle an issue

that may never impact the Petitioners.

II.

The Kentucky Supreme Court did not violate due

process considerations by failing to request

supplemental briefing.

Petitioners’ second claim asserts that the Kentucky Supreme Court committed

a procedural due process violation by failing to request supplemental briefing before

concluding that the Petitioners were not properly before that court. Petition, pp. 2228. To the contrary, because deficient threshold matters that upset the very nature

of a court’s jurisdiction can and should be addressed sua sponte, the Petitioners’ claim

of error is without merit.

The Kentucky Constitution, Section 112(5), states that trial courts are required

to address “justiciable causes.” In Commonwealth v. Hughes, 873 S.W.2d 828, 829

(Ky. 1994), the Kentucky Supreme Court recognized that it has repeatedly reaffirmed

the proposition that Kentucky courts have “no jurisdiction to decide issues which do

not derive from an actual case or controversy.” See also Veith v. City of Louisville,

355 S.W.2d 295, 297–98 (Ky.1962) (courts do not have the jurisdiction to decide

questions that lack justiciable controversies involving the rights of specific parties).

Recently, in Commonwealth Cabinet for Health & Family Servs., Dep’t for Medicaid

Servs. v. Sexton by & through Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185,

adding to it with claims that are not final. Justice Thomas’s concerns underscore the position of the

Commonwealth in this case.

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195 (Ky. 2018), the Kentucky Supreme Court held that, as a threshold matter,

Kentucky courts do not have constitutional jurisdiction to adjudicate a question

raised by a litigant who does not have standing to have the issue decided. This rule

was applicable, and in fact was applied, when the Kentucky Supreme Court decided

the Petitioners’ case. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule

for the conduct of criminal prosecutions is to be applied retroactively to all cases, state

or federal, pending on direct review or not yet final, with no exception for cases in

which the new rule constitutes a ‘clear break’ with the past.”); Whittle v.

Commonwealth, 352 S.W.3d 898, 906 (Ky. 2011); Taylor v. Commonwealth, 63 S.W.3d

151, 156 (Ky. 2001); Jackson v. Commonwealth, 487 S.W.3d 921, 929 (Ky. App. 2016).

There was nothing inappropriate about the Kentucky Supreme Court making a

threshold determination on a matter than served as an initial requirement to the

establishment of jurisdiction.

Petitioners’ primary complaint is that they did not get the opportunity to weigh

in via supplemental briefing. The Petitioners’ contention is baseless, however, as the

Kentucky Supreme Court’s opinion is consistent with its own prior jurisprudence–it

has routinely determined threshold matters without input from the parties. See

Commonwealth v. Steadman, 411 S.W.3d 717, 721 (Ky. 2013) (an alleged lack of

subject-matter jurisdiction may be raised at any time, even by the court itself); Wilson

v. Russell, 162 S.W.3d 911, 913 (Ky. 2005) (jurisdiction is a threshold consideration

for any court at any level of the Kentucky court system and “[i]t is fundamental that

8

a court must have jurisdiction before it has authority to decide a case”).7 For example,

in Kentucky High School Athletic Ass'n v. Edwards, 256 S.W.3d 1, 4 (Ky. 2008), it was

noted that even if neither of the parties has objected on the basis of a lack of

jurisdiction, the Kentucky Supreme Court is still required to address the issue sua

sponte. See also Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978) (“Although the question

is not raised by the parties or referred to in the briefs, the appellate court should

determine for itself whether it is authorized to review the order appealed from.”);

Padgett v. Steinbrecher, 355 S.W.3d 457, 459–60 (Ky. App. 2011) (“While the parties

did not raise the issue of appellate jurisdiction in their briefs, we are the guardians

of our jurisdiction and thus are obligated to raise a jurisdictional issue sua sponte if

the underlying order appears to lack finality.” (citations omitted)).

Unilateral consideration of threshold matters does not raise due process

concerns. The aforementioned language from Kentucky case law is consistent with

the holdings of this Court, which has also rendered similar findings in cases where

the parties do not raise a threshold issue. See Foster v. Chatman, 136 S.Ct. 1737,

1745 (2016) (“[b]efore turning to the merits of Foster's Batson claim, we address a

threshold issue . . . Neither party contests our jurisdiction to review Foster's claims,

but we ‘have an independent obligation to determine whether subject-matter

jurisdiction exists, even in the absence of a challenge from any party.’” (citations

omitted)); Thomas, 532 U.S. at 777 (2001) (“[a]lthough the parties did not raise the

issue in their briefs on the merits, we must first consider whether we have jurisdiction

Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must

pass prior to having their substance examined. Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).

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to decide this case.”); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (1988)

(“[a]lthough neither party contests our appellate jurisdiction over this case, we must

independently determine as a threshold matter that we have jurisdiction.”). “Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to

declare the law, and when it ceases to exist, the only function remaining to the court

is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall.

506, 514 (1869). As a result, cases cannot be decided on any question, no matter how

simple, without first examining jurisdiction, Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 94 (1998), because it “spring[s] from the nature and limits of the judicial

power of the United States” and is “inflexible and without exception.” Mansfield, C.

& L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884).

As previously stated, Eighth Amendment claims in the criminal context hinge

on the imposition of a penalty. Therefore, until a penalty is imposed, a justiciable

cause (or in the federal parlance a “case or controversy”) does not exist. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (the core component of standing is

an essential and unchanging part of the case-or-controversy requirement of Article

III – it is an “irreducible constitutional minimum” when invoking federal

jurisdiction). In order to establish subject matter jurisdiction, a party must show,

among other things, that he has standing to litigate a particular claim. See Steel Co.

v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998) (“Standing to sue is part of the

common understanding of what it takes to make a justiciable case.”). Standing is a

“threshold determinant of the propriety of judicial intervention.” Warth v. Seldin, 422

10

U.S. 490, 518 (1975).

Due process is concerned with fundamental fairness, and here the courts have

a strong interest in the avoidance of advisory opinions or wasting judicial resources

on a matter that is not ripe for adjudication and ultimately may become moot. All of

the support provided by the Petitioners concerning party participation and the like

did not involve a threshold issue. Given the importance of threshold determinations,

sua sponte decisions do not unfairly affect a defendant whose claim lacked

constitutional jurisdiction to bring the claim in a particular court. The process due

in any given context depends on the interests at stake and the costs of safeguarding

the accuracy of the tribunal's factual and legal determinations. See Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). Should either Petitioner eventually receive a

death sentence, the underlying Eighth Amendment claim would be properly available

to them at that time. The Petitioners’ constitutional rights were not violated by the

Kentucky Supreme Court deciding a threshold matter without supplemental briefing,

when the underlying claim remains if and when it becomes a justiciable issue.

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CONCLUSION

The Petitioners do not present compelling reasons for this Court to grant the

petition. None of the considerations highlighted in Supreme Court Rule 10 exist or

create a legal basis for review by this Court.

Based on the foregoing, the petition should be denied.

Respectfully submitted,

DANIEL CAMERON

Attorney General of Kentucky

s/ Matthew R. Krygiel

MATTHEW R. KRYGIEL

Counsel of Record

Assistant Attorney General

Office of the Solicitor General

Criminal Appeals Unit

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

matthew.krygiel@ky.gov

Counsel for Respondent

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FILING/PROOF OF SERVICE

The foregoing Brief in opposition was filed electronically this day,

November 16, 2020, and also was mailed to the Clerk of this Court.

Further, I, Matthew R. Krygiel, a member of the Bar of this Court,

hereby certify that on the 16th day of November, 2020, a copy of this Brief was mailed

via United States Postal Service, postage prepaid, and emailed to Hon. Timothy G.

Arnold (tim.arnold@ky.gov) and Emily Holt Rhorer (emily.rhorer@ky.gov), Assistant

Public Advocates, 5 Mill Creek Park. Frankfort, Kentucky 40601 - Counsel for

Petitioner.

/s/Matthew R. Krygiel________________

MATTHEW R. KRYGIEL

Counsel of Record

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE SOLICITOR GENERAL

CRIMINAL APPEALS UNIT

1024 CAPITAL CENTER DRIVE

FRANKFORT, KY 40601

(502) 696-5342

COUNSEL FOR RESPONDENT

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