author: ROBERT L. BROWN, Justice.

text:
    2009 Ark. 297
    The ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY, Appellant, v. OIL PRODUCERS OF ARKANSAS, Betsy Production Company, Inc., Jerry Langley Oil Company, LLC, Shuler Drilling Company, Inc., Mike A. Davis, James Langley, Gary Sewell, and Robert Reynolds, Appellees.
    No. 08-890.
    Supreme Court of Arkansas.
    May 21, 2009.

      Dustin McDaniel, Att’y Gen., by: Charles Moulton, Sr., Ass’t Att’y Gen., and Kendra Akin Jones, Ass’t Att’y Gen., for appellant.
    Perkins & Trotter, PLLC, by: G. Alan Perkins and John F. Peiserich; Little Rock, and Shackleford, Phillips & Ratcliff, P.A., by: Brian H. Ratcliff, El Dorado, for appellees.
   ROBERT L. BROWN, Justice.

h The appellant, the Arkansas Department of Environmental Quality (“ADEQ”), appeals from an order of the Union County Circuit Court denying the ADEQ’s motion to dismiss on grounds of sovereign immunity.

On December 27, 2007, appellees Oil Producers of Arkansas; Betsy Production Company, Inc.; Jerry Langley Oil Company, LLC; Shuler Drilling Co., Inc.; Mike A. Davis; James Langley; Robert Reynolds; and Gary Sewell (collectively “OPA”), filed a complaint against the ADEQ, seeking declaratory and injunctive relief which stemmed from the |2ADEQ’s issuance of two general permits for the construction of pits at drilling sites and for the disposal of wastes from drilling activities: “Authorization to Construct, Operate and Close the Pits Associated with Oil and Gas Well Exploration” (Permit No. 00000-WG-P) (“Pit Permit”), and “Authorization to Land Apply Drilling Fluids Under the Provisions of the Arkansas Water and Air Pollution Control Act (Act 472 of 1949, as amended, A.C.A. § 8-4-101 et seq.) and A.C.A. § 8-1-201 et seq.” (Permit No. 00000-WG-LA) (“Land Application Permit”).

According to OPA’s complaint, the permits contained numerous regulatory provisions affecting oil and gas production that purport to apply to all industry parties statewide and which subject noncomplying parties to civil and criminal penalties. OPA’s complaint set forth the following grounds as reasons for its requested declaratory and injunctive relief: (1) the ADEQ lacked jurisdiction to regulate in the area of oil and gas law because the Oil and Gas Commission is vested with exclusive jurisdiction and authority to regulate oil and gas drilling and production operations in Arkansas; (2) the ADEQ permits were an unlawful attempt to promulgate administrative rules because the ADEQ lacked statutory rulemaking authority and failed to comply with proper rulemaking procedures; and (3) the permits violated statutory requirements for creating permits, conflicted with an existing regulation of the Arkansas Pollution Control & Ecology Commission, and required unlawfully established permit fees.

|sThe ADEQ moved to dismiss OPA’s complaint and asserted (1) that it was immune from suit under article 5, section 20 of the Arkansas Constitution; (2) that OPA had failed to exhaust its administrative remedies under Arkansas Pollution Control and Ecology Commission Regulation No. 8; and (3) that venue was improper in Union County. OPA responded and also moved to stay enforcement of the ADEQ permits.

The circuit judge held a hearing on the ADEQ’s motion to dismiss and OPA’s motion for stay, following which the circuit judge took both motions under advisement. On April 22, 2008, while the motions were still under advisement, OPA filed an amended complaint that differed from the original complaint only in that it sought to establish OPA as the representative of a class of parties allegedly affected by the pending permits. The ADEQ moved to dismiss the amended complaint on May 7, 2008, and asserted in that motion that OPA had failed to plead sufficient facts to support standing to challenge the ADEQ permits in addition to the grounds asserted in its previous motion to dismiss. In two orders dated May 16, 2008, the circuit judge denied the ADEQ’s motions to dismiss and OPA’s motion for stay. The ADEQ now brings this interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(10) solely with respect to the denial of its motion to dismiss on sovereign-immunity grounds.

|4The ADEQ asserts on appeal that, as a state agency, it is immune from suit under article 5, section 20 of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made defendant in any of her courts.” The ADEQ continues that this constitutional provision is violated because OPA’s suit for declaratory and injunctive relief seeks to control the action of the State and because a court order finding that OPA has “suffered significant injury” and a “reduction in the value” of its leases “could open the door to further litigation” that could impact the state coffers.

OPA responds that it does not dispute that the ADEQ, as a state agency, is generally entitled to sovereign immunity but asserts that it pled sufficient facts in its amended complaint to meet two recognized exceptions to the sovereign-immunity doctrine. The first exception relied on by OPA is that equity has jurisdiction to enjoin or restrain state officials or agencies from acts which are ultra vires, arbitrary, capricious, or in bad faith. As to the second exception, OPA asserts it pled sufficient facts to show that the General Assembly waived the ADEQ’s immunity by its enactment of the Arkansas Administrative Procedure Act.

The ADEQ counters that it acted within its express statutory and regulatory authority in issuing the permits. The ADEQ admits that it lacks statutory authority to | ¡¡regulate drilling and production of oil and gas but claims that the permits at issue were “not an attempt to regulate the drilling for, or production of, oil and natural gas.” Rather, it asserts that the permits were “environmental permits,” which it had express statutory authority to issue under Arkansas Code Annotated section 8-1-202. The ADEQ further asserts that it is not subject to the Administrative Procedure Act, as this court recognized in Ark. Dep’t of Envtl. Quality v. Al-Ma-dhoun, 374 Ark. 28, 285 S.W.3d 654 (2008).

In reviewing the circuit judge’s decision on a motion to dismiss, this court has said:

[W]e treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief.

Ark. Tech Univ. v. Link, 341 Ark. 495, 501, 17 S.W.3d 809, 812 (2000) (internal citations omitted). Our standard of review for the denial of a motion to dismiss is whether the circuit judge abused his or her discretion. See S. Coll. of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005).

We first address OPA’s contention that the General Assembly waived ADEQ’s sovereign immunity pursuant to section 25-15-214 of the Arkansas Administrative Procedure Act. OPA relies on section 25-15-214, which provides:

In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who | (¡considers himself or herself injured in his or her person, business, or property by the failure, refusal, or delay may bring suit in the circuit court of any county in which he or she resides or does business, or in Pulaski County Circuit Court, for an order commanding the agency to act.

Ark.Code Ann. § 25-15-214 (2007). This court has held that section 25-15-214 authorizes a circuit court to order an agency that fails to act to do so, when that failure injures a person or that person’s property and when the agency has acted unlawfully, unreasonably, or capriciously. See Oliver v. Pulaski County Circuit Court, 340 Ark. 681, 13 S.W.3d 156 (2000). Last year, this court held that the Arkansas Administrative Procedure Act, and specifically section 25-15-214, did not apply to the ADEQ because the ADEQ is required to follow the specific administrative procedures set forth in the Arkansas Pollution Control and Ecology Commission’s Regulation No. 8. Ark. Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008). Accordingly, the ADEQ’s right to sovereign immunity was not waived by virtue of the General Assembly’s enactment of the Arkansas Administrative Procedure Act, and OPA’s reliance on this alleged exception is without merit.

We turn then to the second alleged exception to sovereign immunity that OPA raises, and that is that the ADEQ acted ultra vires in issuing the permits. This court has long recognized that a state agency may be enjoined if it can be shown that the agency’s pending action is ultra vires or outside the authority of the agency. Ark. Game & Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974) (finding that the Game and Fish Commission’s proposed fish-kill was within its constitutional authority); see also Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999) (recognizing exception but finding that instructor’s complaint failed to allege any specific acts that were ultra vires, in bad faith, or arbitrary with respect to university’s refusal to extend time to complete doctoral requirements); Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995) (recognizing exception but finding no allegations of ultra vires acts); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984) (finding that the circuit court had jurisdiction to enjoin the University of Arkansas Board of Trustees for the failure to follow charitable trust guidelines under ultra vires exception to sovereign immunity); Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980) (circuit courts without jurisdiction to enjoin state agencies and commissions absent allegations of ultra vires actions); Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967) (recognizing ultra vires exception to sovereign immunity). A state agency may also be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. Ark. Game & Fish Comm’n v. Eubank, supra.

For its ultra vires claim, OPA asserts that because the Pit Permit and the Land Application Permit contained numerous regulatory provisions affecting oñ and gas production, the ADEQ’s issuance of the permits was ultra vires. This, according to OPA, is due to the fact that (1) the ADEQ lacked jurisdiction to regulate oil and gas drilling and | ¡¡production operations because the Oil and Gas Commission has exclusive statutory jurisdiction in that area; (2) the ADEQ lacked statutory rule-making authority; and (3) the ADEQ violated the statutory requirements for creating permits.

In support of these claims, OPA made the following allegations in its amended complaint:

13. On November 30, 2007, ADEQ issued two so-called “general permits” regarding oil and gas exploration and production operations, entitled: “Authorization to Construct, Operate, and Close the Pits Associated with Oil and Gas Well Exploration” (Permit No. 00000-WG-P; hereafter the “Pit Permit”), and “Authorization to Land Apply Drilling Fluids Under the Provisions of the Arkansas Water and Air Pollution Control Act (Act 472 of 1949, as amended, A.C.A. § 8-4-101, et seq.), and A.C.A. § 8-1-201, et seq.” (Permit No. 00000-WG-LA; hereafter the “Land Application Permit”), collectively referred to herein as the “Permits.” Both Permits have a declared effective date of January 1, 2008. Copies of the Pit Permit and the Land Application Permit were attached to the Complaint as Exhibits A and B, respectively.
14. The Permits were signed by Steven L. Drown, Chief, Water Division, ADEQ, as the designated agency official on behalf of the ADEQ Director. As such, issuance of the Permits was a final decision of the Director and ADEQ.
15.Both the Pit Permit and the Land Application Permit are called “general permits”; i.e., they were issued generally for mandatory use by an entire class of industry participants and were not issued to individual permit applicants. The Pit Permit purports to apply to all “operators or pits associated with oñ and gas exploration, drilling, completion, production and re-completion, located within the State of Arkansas.” Pit Permit cover page (Exhibit A). The Land Application Permit purports to apply to all “Oil and Gas Well Operators, and others.” Land Application Permit cover page (Exhibit B).
|fl16. The Permits contain numerous regulatory provisions that purport to be “requirements” pursuant to the Permits. The terms of the Permits contain rule provisions that purport to apply to all industry parties statewide and to require all such parties to obtain coverage under the Permits.
17. The Permits require that each party applying for coverage under one of the Permits must submit an application fee of $300.00 per application for Pit Permits and $500.00 per application for Land Application Permits.
18. The Pit Permit states: “After the effective date of this permit, any operator constructing a pit, during drilling, completion, production, re-completion, workover, or similar activity at an oil or gas well shall obtain a permit to construct a pit.” Pit Permit, Page 4 of Part I, para. 3 (Exhibit A). The Permit purports to require compliance with all provisions thereof and states that any noncompliance would constitute a violation of the Arkansas Water and Air Pollution Control Act and subject the noncompli-ant party to civil and criminal penalties. Pit Permit, Page 5 of Part II, paras. 2-3 (Exhibit A). The Land Application Permit contains similar provisions. Land Application Permit, Page 2-3 of Part II, paras. 2-3 (Exhibit B).
19. The ADEQ failed and refused to provide any proof that the technical requirements or standards in the proposed Permits are based upon generally accepted scientific knowledge and engineering practices. Furthermore, the ADEQ did not provide any justification with appropriate reference to the scientific and engineering literature or written studies conducted by the department, in support of the Permit requirements and limitations.
20. The provisions and requirements of the Permits are not set forth in any statute or in any rule or regulation promulgated by the Arkansas Pollution Control & Ecology Commission.

OPA, in addition, attached the permits as exhibits to its complaint. The Pit Permit provides requirements for, among other things, the construction of reserve pits; the maintenance of circulation pits and mud pits; drilling fluid disposal; pit closure; test pits, | inworkover pits, and emergency pits; and oil-based drilling mud and other mud systems. For example, Part II, section A.1 provides:

Reserve Pits shall be constructed with a minimum of 2:1 (two feet horizontal to one foot vertical) side slope on both the interior and exterior walls. The top of the pit walls must be a minimum of 2 feet wide. All reserve pits must be constructed to include the two (2) feet free-board requirements stated in Part II.B.2 of this permit.

The Land Application Permit similarly provides requirements for the land application of water-based drilling fluids such as: “Drilling fluids shall not be applied to slopes with a gradient greater than 15%; or to soils that are saturated, frozen or covered with snow, and during rain or when precipitation is imminent.” Both permits also include reporting and record keeping requirements, permit fees or permit application fees, and provisions providing for penalties in the event of noncompliance.

The ADEQ admits that it lacks statutory authority to regulate the drilling and production of oil and gas but argues that the general permits were “not an attempt to regulate the drilling for, or production of, oil and natural gas.” It contends, rather, that Arkansas Code Annotated section 8-l-202(b)(2)(A)(i) provides that the duties of the director of the ADEQ shall include: “The administration of permitting, licensing, certification, and grants programs deemed necessary to protect the environmental integrity of the state.” ArkCode Ann. § 8-l-202(b)(2)(A)(i) (Repl.2007). The ADEQ concludes that it is entitled to I ,[Sovereign immunity because the permits fall within the scope of its authority to protect the environmental integrity of the state.

We hold that OPA has asserted a claim in its complaint with the attached permits as exhibits that the ADEQ acted outside of its regulatory and statutory authority in issuing permits, which allegedly include unauthorized rules and regulations. Whether OPA will prevail on this claim remains to be seen. In any case, it is clear to this court that the issue of ADEQ’s legal authority to act as it did needs further development before the circuit court. It is unclear from the record and arguments before us (1) whether the permits contained rules and regulations that the ADEQ was authorized to promulgate or whether section 8-l-202(b)(2)(A)(i) merely authorizes the agency to “administer” rules adopted by the Arkansas Pollution Control and Ecology Commission; (2) whether the permits purport to regulate oil and gas production — which impinges on the authority of the Oil and Gas Commission — rather than general environmental issues; and (3) whether the ADEQ failed to comply with statutory requirements for issuing such permits. These are issues that, no doubt, will be more fully developed at the trial level with, as was mentioned at the oral argument of this matter, joinder of the Oil and Gas Commission and the Arkansas Pollution Control and Ecology Commission as necessary parties.

We hold that the circuit judge did not abuse his discretion in denying the motion to dismiss.

_Jj^Affirmed.

Special Justices RAYMOND R. ABRAMSON and KELLEY W. WEBB, join.

IMBER and WILLS, JJ., not participating.

      . Ark. R.App. P.-Civ. 2(a)(10) provides for the interlocutory appeal of an order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity. The rationale for this rule is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001).


source: Caselaw Access Project

author: JIM GUNTER, Justice.

license: Public Domain

text:
    2009 Ark. 300
    Montrell Dashone VENTRY, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1232.
    Supreme Court of Arkansas.
    May 21, 2009.

      Phyllis J. Lemons and Gregory K. Crain, Malvern, for appellant.
    Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for ap-pellee.
   JIM GUNTER, Justice.

| ¡This appeal arises from the convictions of Appellant Montrell Dashone Ventry for capital murder and aggravated robbery stemming from an incident that occurred on August 5, 2007. On appeal, Appellant asserts that the trial court erred in (1) denying his directed-verdict motion; (2) denying his motion to suppress; (3) denying his motion to transfer to juvenile court, and in the alternative, grant extended juvenile jurisdiction; (4) admitting a police officer’s comment as part of his recorded statement to police; (5) admitting a statement by Sultannah Saddiq; (6) allowing a transcript of his taped statement to be passed to the jurors to read while the tape was played; and (7) overruling his objection to the appeal to the jurors’ sympathy in the prosecutor’s closing argument. Because Appellant was sentenced to life imprisonment without parole, our jurisdiction is pursuant to Arkansas |2Supreme Court Rule l-2(a)(2) (2008). We find no error and affirm.

The testimony at trial reveals the following. Eddie Dixon of North Little Rock testified that on August 5, 2007, his cousin, Nicholas Jones, drove him to meet a woman named Sultannah Saddiq in Benton. Dixon stated that he was on his cell phone with Sultannah as they were driving, and she was giving him directions on where to meet her. Her directions led them down a path by a warehouse, where three males with guns jumped out of the bushes and told Eddie and Nicholas to get out of the car, empty their pockets, and lie on the ground. Eddie testified that he heard Nicholas arguing with two of the men. Eddie was told to take off his clothes and crawl to the back of the building. He crawled into some bushes in the back of the building. When he was in the bushes, he heard two gunshots and then heard the men drive away. Eddie looked for Nicholas, but could not find him. He left the area and ran toward the nearest lighted building, the Saline County Jail.

Don Robertson, a patrolman with the Benton Police Department, testified that he responded to the call about a possible shooting at 706 Palm Street on August 5, 2007. Upon his arrival, he saw Nicholas leaning up against the front side of the house bleeding profusely. The homeowner advised Robertson that she did not know who Nicholas was. Robertson secured the scene and called an ambulance. At this time, Robertson received a call from the jail that they were looking for a suspect or victim possibly involved in a robbery on Palm Street. Nicholas later died in the hospital from pneumonia caused by bleeding from a gunshot wound to the head.

| ¡¡Phillip Peckham of the White Hall Police Department was patrolling in White Hall when he was dispatched to look for a teal green Nissan Altima without a license plate. He was told by the dispatcher that the vehicle should be occupied by two black males who were supposedly intoxicated and had almost run over some people at a truck stop. Peckham drove to Highway 270 and saw a green Nissan Alti-ma traveling toward him. When the vehicle turned onto Hospitality Lane, he noticed that it did not have a license plate. The vehicle pulled up to the Super 8 Motel parking lot, and Peckham pulled up behind it to conduct a traffic stop. Appellant exited the driver’s seat and Peckham told him that he needed to ask him about his tags. Appellant began to flee on foot. Peckham chased Appellant, caught him, and arrested him. Peckham asked Appellant why he was running and Appellant began to rap and sing about being a soldier and that he was going to burn in hell for blowing a head off. Peckham ran an NCIC check on the two men and was advised that they were both wanted for aggravated robbery and were considered armed and dangerous. He ran the VIN number on the vehicle, and it came back as being stolen out of Benton.

Peckham searched the green Altima and found marijuana, beer, and a nine millimeter semi-automatic Budapest handgun, serial number B3949. The gun was loaded with six rounds, five in the magazine and one in the chamber. He also found a box of Remington .380 ammunition.

Detective Chris Shaw testified that he interviewed Appellant in the Benton Police Department in the presence of Juvenile Officer Jay Gwatney and Appellant’s mother. Shaw |4made both video and audio recordings of the interview, which were also transcribed. In the interview, Appellant confessed to participating in the robbery of the victims and shooting Nicholas.

Dr. Daniel Konzelmann, associate medical examiner at the Arkansas State Crime Laboratory, testified that he performed an autopsy on Nicholas on August 22, 2007. He stated that the most obvious injury was a gunshot wound between Nicholas’s eye and nose. There were also some minor skin injuries. Dr. Konzelmann recovered the bullet from Nicholas’s right neck. Konzelmann testified that while examining Nicholas’s internal organs he was able to determine that the cause of death was pneumonia complicating a gunshot wound to the head. He stated that Nicholas was diagnosed with Adult Respiratory Distress Syndrome (ARDS) at the hospital, which he believed developed into pneumonia which caused Nicholas’s death. James Looney of the Arkansas State Crime Laboratory testified that the bullet sent to him from the medical examiner’s office was fired from the gun found in the car Appellant was driving.

I. Directed-verdict motion

On appeal, Appellant asserts that the circuit court erred in denying his motion for directed verdict because there was no evidence presented by the State that Appellant was the person who committed capital murder or aggravated robbery other than his confession, which does not warrant a conviction unless made in open court or accompanied by other proof that the offense was committed.

|5On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See id. This court has repeatedly defined substantial evidence as “evi- . dence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Id. (quoting Hoyle v. State, 371 Ark. 495, 501, 268 S.W.3d 313, 318 (2007)). Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.

“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001) (citing Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999)). This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offenses occurred and nothing more. Id. In other words, under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Id. It is not necessary to establish any further connection between the crime and the particular defendant. Id. Accordingly, we must determine whether, setting aside Appellant’s extrajudicial confession, the evidence demonstrates that the crime of capital murder was committed by someone.

There is clearly evidence other than Appellant’s confession to demonstrate that the | ficrime of capital murder was committed. Eddie testified that he and Nicholas were robbed at gunpoint and that while he was in the bushes behind the warehouse, he heard two shots. Nicholas was later found at a house bleeding profusely from a gunshot wound to the head. He later died in the hospital from pneumonia caused by bleeding from his head wound. Based on the evidence presented at trial, Nicholas died as a result of the homicide. The evidence was clearly sufficient to sustain Appellant’s guilty verdict.

II. Suppression of Appellant’s statement

For his next point on appeal, Appellant asserts that the trial court erred in not suppressing the Appellant’s videotaped statement to Officer Chris Shaw. It appears that Appellant is disputing the voluntariness of his confession.

On appeal of a circuit court’s determination of voluntariness of a confession, we make an independent determination based upon the totality of the circumstances. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). The ruling is reversed if it is clearly against the preponderance of the evidence, which we have interpreted as being the same standard as the clearly erroneous standard. Id. Any conflict in the testimony of different witnesses is for the circuit court to resolve. Id. In essence, this court reviews the circuit court’s findings of fact for clear error, and we make an independent, or de novo, determination of voluntariness. Id.

This court has consistently held that relevant factors in determining whether a confession was involuntary are age, education, and the intelligence of the accused, as well |7as the lack of advice as to his constitutional rights, the length of detention, the repeated and prolonged nature of questioning, and the use of mental or physical punishment. Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004).

Officer Shaw testified that, because he had been informed that Appellant appeared to be under the influence of either narcotics or alcohol, he did not take Appellant back to Benton for an interview until the next day. Shaw stated that Appellant was aware of his Miranda rights prior to being transported from White Hall to Benton. According to Shaw, there was no interrogation of Appellant until 1:47 p.m. the next day at the Benton Police Department. During the interrogation, Officer Gwatney and Appellant’s mother were present in the room. Before the interrogation began, Shaw read Appellant his rights and Appellant responded coherently to his questions. Shaw testified that no one promised Appellant anything, harmed him, or tried to coerce him in any way to give a statement. Shaw stated that, to the best of his knowledge, the statement was given freely and voluntarily. Shaw took both a video and audio recording of the conversation with Appellant. These recordings support Shaw’s testimony.

Furthermore, Appellant was two weeks from the age of eighteen at the time of the offense. He was the father of an infant and worked two jobs. At the March 5, 2008 hearing, the trial court found that he did not have a mental disease or defect, that he had the capacity to appreciate the criminality of his conduct, that he had the capacity to conform his conduct to the requirements of the law, and that he had the capacity for acting in a |8purposeful manner. Based on the totality of the circumstances, we hold that the circuit court did not err in denying Appellant’s motion to suppress.

Appellant also asserts that the trial court erred in not suppressing the portion of his statement that followed his conversation with his mother. Appellant did not raise this argument in his motion to suppress; therefore, it is not preserved for our review. See Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007).

III.Transfer to juvenile court

For his third point on appeal, Appellant asserts that the trial court erred in denying his motion to transfer his case to juvenile court, or in the alternative, proceed under extended juvenile jurisdiction. For criminal prosecutions commenced after May 1, 1995, an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be challenged by way of interlocutory appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). An appeal of such order after conviction in circuit court is untimely and will not be considered. Id. Here, the appeal is untimely and the trial court’s denial of the motion to transfer is affirmed.

IV. Police officer's comment

For his next point on appeal, Appellant asserts that the trial court erred by not redacting Officer Shaw’s comment to Appellant contained on the recording of Appellant’s statement to police. Specifically, he asked the court to redact the officer’s statement, “I know what happened.” Appellant asserts that this was error because (1) the officer could |3not' testify at the trial; (2) the officer’s knowledge was based on hearsay from the other two co-defendants; and (3) the statement would violate Appellant’s rights to confront witnesses against him. Appellant contends that he was prejudiced because the officer’s statements could have been given greater weight than Appellant’s statements.

A statement is not hearsay unless it is offered to prove the truth of the matter asserted. See Ark. R. Evid. 801(c) (2008). Here, the officer’s statement, “I know what happened,” was not offered to prove the truth of the matter asserted, but was rather part of the officer’s interrogation technique. Because the statement was not hearsay, we hold that the circuit court did not err in admitting it into evidence. Even if there were merit to his argument, he has not shown that he was prejudiced by the police officer’s statement. Prejudice is not presumed, and this court will not reverse a conviction absent a showing of prejudice by the defendant. Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007).

V. Admission of Sultannah Saddiq’s statement

For his fifth point on appeal, Appellant asserts that it was error for the State to elicit testimony from Briana Higgs about a statement Sultannah Saddiq made to her over the telephone after the crime was committed. Appellant contends that the statement was hearsay, that Briana was not one of the co-conspirators, and that it violated Appellant’s right to confront the witnesses against him.

Briana testified that on the night of the shooting, she was inside her house when she heard her grandmother telling her to get some towels because someone was bleeding on the |inporch. Briana stated that she knew Sultannah, and the police asked Briana to call her. When Briana called, Sultannah did not answer her phone. Eventually, she did answer the phone and told Briana that she did not know the boy who had been shot. At this point during the testimony, Appellant’s counsel objected on hearsay grounds. Appellant argued that the statement was not made by a co-conspirator, and therefore did not meet the hearsay exception. After an in-chambers conference, the trial court ruled that the statement was admissible under Rule 801(d)(2)(v) because Sultannah was a co-conspirator. The testimony continued, with Briana stating that when Sul-tannah called back, she asked what happened and Briana told her that someone had been shot. Sultannah then asked if the victim died.

Our evidence rules indicate that a statement is not hearsay if it is offered against a party and is a statement by a co-conspirator of a party made during the course and in furtherance of the conspiracy. Ark. R. Evid. 801(d)(2)(v) (2007). Here, the statement was made by Sultannah to Briana. Because Sultannah was a co-conspirator, her statements to Briana are not hearsay pursuant to Rule 801(d)(2)(v). Thus, the admission of Sultannah’s statement to Briana was not error.

VI. Transcript of Appellant’s taped confession

For his sixth point on appeal, Appellant asserts that the trial court erred by allowing a transcript of his taped confession to be given to jurors to read while the tape was being played. At trial, Appellant objected to giving the jury the transcript to read. The objection |nwas overruled and the transcript was given to the jury, but not proffered into evidence. While the transcript is not included in the record, Appellant concedes that there were no material misrepresentations in the transcript that would prejudice him.

Appellant offers no convincing argument or authority for his assertion that it was error to allow the jurors to read the transcript while listening to the recording of his statement. In fact, he cites to our case law in which we have upheld the use of a transcript alongside a recording that may be difficult to understand. See Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993). He admits that, “if the audio tape had been played without the transcript, it would have been necessary to play the recording several times in order to ensure the jurors’ understanding of the statement.” We have held, even in capital cases, that where the party fails to cite to authority or fails to provide convincing argument, we will not consider the merits of the argument. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006).

VII. Closing argument

For his final point on appeal, Appellant contends that the trial court erred in overruling his objection to the prosecutor appealing to the jurors’ sympathy in closing argument. In closing argument, the prosecutor stated, “[l]adies and gentlemen, I urge you, as Mr. Walton did, not to think about Montrell Ventry because that’s going to be the lasting image in your mind. Don’t let that be.” Appellant made an objection to the prosecutor appealing to the sympathy of the jury, which was overruled. The only argument Appellant 112makes with respect to this point is that “the objection should have been granted.” Because Appellant has not developed his argument, we will not consider it on appeal. See Springs, supra.

VIII. Ark. Sup.Ct. R. k-3(h)

The record in this matter has been reviewed for other reversible error in accordance with Arkansas Supreme Court Rule 4-3(h), and none has been found.

Affirmed.


author: PER CURIAM.

text:
    2009 Ark. 323
    Steven Eugene CAULEY, Arkansas Bar No. 94012, Petitioner.
    No. 09-509.
    Supreme Court of Arkansas.
    May 28, 2009.
   PER CURIAM.

hOn recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the voluntary surrender, in lieu of probable disbarment proceedings, of the license of Steven Eugene Cauley, of Little Rock, Arkansas, to practice law in the State of Arkansas. Mr. Cauley is set to enter a guilty plea to one count of felony wire fraud and one count of criminal contempt in the United States District Court for the Southern District of New York on June 1, 2009. In his petition to surrender, filed with this court on May 14, 2009, he acknowledged failure to pay over certain funds he held as a fiduciary and escrow agent for the plaintiffs obtained in a settlement of securities litigation in New York. Mr. Cauley self-reported his actions to the Committee and acknowledged his conduct violated Rules 8.4(b) and (c) of the Arkansas Rules of Professional Conduct. The name of Steven Eugene Cauley shall be removed from the registry of licensed attorneys, and he is barred and enjoined from engaging in the practice of law in this state.

|2It is so ordered.


author: JOHN B. ROBBINS, Judge.

text:
    2009 Ark. App. 429
    Orlando L. DOSIA, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1057.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Debra J. Reece, Russellville, for appellant.
    Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appel-lee.
   JOHN B. ROBBINS, Judge.

| ¡Appellant Orlando Dosia appeals his convictions for possession with intent to deliver cocaine, methamphetamine, and marijuana after a jury trial in Howard County Circuit Court. On appeal, he challenges the denial of his motions to suppress, contending that he was subjected to an unlawful encounter by a Nashville, Arkansas, police officer, resulting in a search that led to “fruits of the poisonous tree.” Appellant contends that the trial court clearly erred in denying his motions to suppress, entitling him to a reversal and remand. We agree.

| gIn reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Stokes v. State, 375 Ark. 394, 291 S.W.3d 155 (2009); Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008); Sheridan v. State, 368 Ark. 510, 247 S.W.3d 481 (2007). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Koster, supra. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.

The evidence presented at the suppression hearing included that of Officer Kyle Jones of the Nashville police department who testified that on the night of February 23, 2007, he was in uniform and patrolling in a marked unit. At approximately 9:45 p.m., Jones drove past a closed gas station, a Shell Superstop, where he observed two vehicles parked in the parking lot. Jones turned his patrol car around to “check them out.”

Jones stated that there were no signs of criminal activity, no moving violations, nor any apparent mechanical difficulty or defective equipment on either vehicle. Jones agreed that he was not aware of any reported criminal activity in that area that night, nor did he suspect it at the time. Jones explained that this was why he did not engage his police lights when he came back to the parking lot.

Although Jones thought it suspicious that one car “shot” out of the parking lot, Jones did not believe it suspicious enough to follow that car. Instead, Jones approached the | remaining car, which was then moving around the building, and observed the car stop. Jones pulled his patrol car up along the passenger side. Jones asked the occupants of the vehicle what they were doing. The men responded that they were discussing a dog house and offered to show the officer text messages to prove it. Jones told them he did not want to see the messages.

Jones asked their names. The passenger said his name was Maverick Canaday. Jones recognized the name as associated with drug-buy investigations, but a computerized check revealed no outstanding warrants and a valid driver’s licénse.

By this time, Jones was out of the patrol car speaking to the men, who remained in their vehicle. Jones asked the driver (appellant) his name, to which appellant gave his name and date of birth, but said he did not have a valid driver’s license. Appellant’s license was determined to be suspended. Jones described Maverick as “shaking, very nervous,” and appellant as “a little nervous.”

As Jones waited for the computer check to come back, another officer (Officer Clinton Tedford) arrived to assist. Tedford told appellant to get out of his vehicle, and Jones asked appellant what was in the bag under appellant’s feet in the floorboard. Appellant offered to let Jones retrieve it. Instead, Jones told appellant to retrieve it. At that point, appellant placed his hands on the top of the car. Tedford then grabbed the bag and smelled it; the bag smelled strongly of marijuana and felt as if it held a substantial amount |4of the drug. Appellant was arrested, and upon search incident to arrest, more drugs and $1907 in cash were found. This led to the charges and eventual convictions.

The trial judge, when asked to rule on the motion to suppress prior to trial, found that the officers were “doing what they should have been doing in checking things out” but that appellant was “in the wrong place at the wrong time.” The judge thus denied the motion to suppress. There is no question that upon learning that appellant was driving on a suspended license, the officers were entitled to detain appellant. It is the encounter up to the moment that appellant was asked for his name, date of birth, and driver’s license that is at issue.

The State’s brief asserts that the Rules of Criminal Procedure are not applicable because the police officer’s acts here were no more than basic functions of community care-taking. The State asserts further that to the extent that the Rules apply, none were violated. Appellant argues that the encounter is governed by our Rules of Criminal Procedure and that this was a clear violation of those Rules, designed to protect a citizen’s Constitutional rights.

In Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), our supreme court explained the three types of encounters between the police and private citizens:

The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articula-ble suspicion” that the person has committed or is about to commit |Ba crime. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause.

Stewart, 332 Ark. at 144, 964 S.W.2d 793; see also Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998).

At issue before us today is whether the encounter was impermissible under our Rules of Criminal Procedure and Constitution. See Lamb v. State, 77 Ark.App. 54, 70 S.W.3d 397 (2002). If so, then the motion to suppress was erroneously denied, requiring reversal and remand.

We first dispose of any reliance on Ark. R.Crim. P. 3.1, which permits an officer to stop and detain a person who is reasonably suspected of having committed, committing, or being about to commit a felony or misdemeanor involving danger of injury or property damage. Those requirements are simply not present here, by Officer Jones’s candid admission. However, there is a less intrusive interaction permitted between police and citizens, outlined in Ark. R.Crim. P. 2.2 that provides in relevant part:

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) ... Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.

Our supreme court has clarified that an encounter under Ark. R.Crim. P. 2.2 is permissible only if the information or cooperation sought is in aid of an investigation or the prevention Roí' a particular crime. Stewart, supra. See also Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). It is Rule 2.2 that provides authority for a police officer to act in a non-seizure encounter, referring to the first category of police-citizen encounters. See State v. McFadden, supra. See also Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990).

There is nothing in the Constitution that prevents officers from addressing questions to any individual. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982). However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existing circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. Id. What must be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances of the encounter. Id. Rule 2.2 authorizes police action provided that the approach does not rise to the level of a “seizure” and provided that the information and cooperation sought is in aid of the investigation or prevention of crime. State v. McFadden, supra.

Similar to the fact scenario in Stewart, supra, the police officer here was not investigating a nearby crime or a tip from an informant at the time of the encounter. Under these circumstances, we cannot say that the encounter was permissible under Rule 2.2. Moreover, while not necessary to our disposition, we believe that reasonable persons under |7the same circumstances would not have felt free to leave the encounter, particularly when the requests for identification and computer verification checks were commenced.

The State focuses its brief on justifying this encounter under a general community care-taking approach by the officer. This “community care-taking” argument was never presented to the trial court. However, the cases cited by the State for that proposition support such care-taking approaches if a driver appears to be in distress or injured, Blakemore v. State, 25 Ark.App. 335, 758 S.W.2d 425 (1988), or if there is abandoned property in a dangerous or high-crime area, Adams v. State, 26 Ark.App. 15, 758 S.W.2d 709 (1988). Such an initial approach was approved in Swan v. State, 94 Ark.App. 115, 226 S.W.3d 6 (2006), where an officer on routine patrol approached a vehicle at approximately 4:00 a.m. in a parking lot on the back side of a motel specifically to cheek on the three occupants’ well-being. The officer in Swan also testified that upon approach, he observed Swan moving in a manner suggesting he was concealing an object in the seat. The evidence to suggest that community care-taking was the reason for the initial encounter in Blakemore, Adams, and Swan is not present in the case we consider today. Compare Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Winters v. Adams, 254 F.3d 758 (8th Cir.2001) (explaining community care-taking function).

Because the initial encounter and resulting detention were impermissible, we reverse the trial court’s denial of the motion to suppress as it was clearly against the preponderance of the evidence.

| ^Reversed and remanded.

VAUGHT, C.J., and KINARD, J, agree.

      . There was a pretrial hearing on the motion to suppress, which was denied from the bench. Appellant filed a motion to reconsider on the eve of trial, which was denied by the trial court.


author: /s/ John D. Minton, Jr. Chief Justice

text:
    Eric Lamar EMERSON, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000398-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

Eric Lamar Emerson, KBA No. 89553, was admitted to the practice of law on November 8, 2002 and his bar roster address is 4510 West Corral Road Laveen, Arizona 85339. He moves this Court to impose the sanction of a thirty-day suspension from the practice of law with suspension to commence upon entry of this Order. The KBA has no objection to the motion, as the parties have agreed to this negotiated sanction pursuant to SCR 3.480(2).

KBA File 71335

On July 29, 2009, Brenda Ellis, a client of Emerson’s, filed a bar complaint alleging that Emerson accepted $100.00 to complete work on her behalf, that Emerson did not complete the work, and he did not refund the fee. In response, the Inquiry Commission issued a charge including Ellis’ allegations, allegations that Emerson failed to update his bar roster address, and allegations that he failed to respond to the bar complaint. Subsequently, the Inquiry Commission amended that charge on August 17, 2009 due to typographical errors, but Emerson failed to respond. The case was then submitted to the Board of Governors as a default pursuant to SCR 3.210(1). On November 19, 2009, Emerson moved to submit an untimely answer to the charge and tendered an answer. The Board of Governors granted that motion and removed the case from their docket on November 20, 2009.

The information contained in Emerson’s Answer and Affidavit rebutted Ellis’ allegations, but provided no explanation for his failure to update his bar roster address or his failure to respond to the bar complaint. The Inquiry Commission issued a Second Amended Charge on February 4, 2010, deleting Ellis’ allegations, but retaining the counts alleging Emerson’s: (1) failure to update his bar roster address as required by SCR 3.175, a violation of SCR 3.130-3.4(c), which prohibits a knowing violation of a tribunal’s rules; and (2) his failure to respond to the bar complaint, a violation of SCR 3.130-8.1(b), which prohibits the knowing failure to respond to a lawful demand for information from a disciplinary authority.

Negotiated Sanction

Emerson admits that his misconduct in these matters constituted a violation of SCR 3.130-3.4(c) and SCR 3.130-8.1(b). He and the KBA have agreed to a negotiated sanction pursuant to SCR 3.480(2) and he now requests this Court to impose a thirty-day suspension from the practice of law.

Emerson is currently suspended from the practice of law due to several previous disciplinary cases. On December 18, 2008 he was suspended for sixty-one days for violations of SCR 3.130-1.1, SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.16(d) and SCR 3.130-8.1(b). Kentucky Bar Ass’n v. Emerson, 275 S.W.3d 183 (Ky.2008). The KBA filed an objection to automatic reinstatement on February 9, 2009. On January 22, 2009 Emerson was suspended for an additional one hundred and eighty-one days for violations of SCR 3.130-1.16(d) and SCR 3.130-8.1(b). Kentucky Bar Ass’n v. Emerson, 276 S.W.3d 823 (Ky.2009). Finally, on January 21, 2010, Emerson received a two-year suspension based on disciplinary sanctions issued by the Ohio Supreme Court. Kentucky Bar Ass’n v. Emerson, 303 S.W.3d 108 (Ky.2010). Emerson has been suspended for more than one hundred and eighty-one days already and therefore must comply with the requirements of SCR 3.510(3) and be referred to the Character and Fitness Committee for reinstatement proceedings.

Although the parties provide no authority for this recommended sanction, we agree that it is in line with our previous decisions. For example, in Kentucky Bar Ass’n v. Beal, 169 S.W.3d 860 (Ky.2005), Beal was publicly reprimanded after he was found guilty of violating SCR 3.130-8.1(b). And in Kentucky Bar Ass’n v. Leadingham, 269 S.W.3d 419 (Ky.2008), Leadingham received a thirty-day suspension, which was probated for one year on the condition that he attend the KBA’s Ethics and Professionalism Enhancement Program, for violating SCR 3.130-3.4 and SCR 3.130-8.1(b).

We also note that the Chair of the Inquiry Commission and a past president of the KBA have reviewed and approved Emerson’s motion requesting the above discipline. We agree and find it appropriate given Emerson’s previous violations.

Discipline

Agreeing that the negotiated sanction proposed in Emerson’s motion is appropriate, it is ORDERED that:

1. Eric Lamar Emerson shall be suspended from the practice of law for an additional thirty days, beginning upon the expiration of his 2010 two-year suspension; and
2. In accordance with SCR 3.450, Emerson is to pay all costs associated with these proceedings, said sum being $322.71, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice


text:
    Lester H. BURNS, Jr., Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2004-SC-000004-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

This matter comes before the Court on the application for reinstatement by Lester Burns, Jr., under Kentucky Rules of the Supreme Court (SCR) 3.510. The Character and Fitness Committee found that Burns “has failed to present clear and convincing evidence that he presently exhibits the requisite good moral character to be reinstated to the practice of law” and further found “that he has failed to completely rehabilitate himself from past derelictions.” Based on these findings, the Committee recommended denial of Burns’s application for reinstatement.

The Kentucky Bar Association (KBA) Board of Governors adopted the findings and conclusions of the Committee and unanimously concurred in the recommendation for this Court to deny Burns’s application for reinstatement. We agree with the Board’s recommendation and deny Burns’s application for reinstatement.

I. FACTUAL AND PROCEDURAL HISTORY.

Burns was admitted to the practice of law in Kentucky in 1959. In 1986, following the institution of KBA disciplinary proceedings against him and his entry of guilty pleas to federal charges of mail fraud and transporting stolen money across state lines, this Court granted Burns’s motion to resign under terms of disbarment. At the time of his disbarment, our rules did not provide for permanent disbarment as a disciplinary sanction; but we ordered that Burns would not be allowed to apply for reinstatement for at least five years.

This Court did not issue a reported opinion detailing Burns’s misconduct at the time of his disbarment. And upon Burns’s application for reinstatement, the Committee and the Board focused primarily on Burns’s conduct since his disbarment and his present character or attitude as evidenced by his own testimony and the testimony of others. The Committee only briefly described the misconduct leading to his disbarment. Because the misconduct leading to Burns’s disbarment is a relevant, although not solely determinative, factor in assessing his reinstatement application, we briefly summarize the criminal conduct for which Burns entered guilty pleas, as well as other professional misconduct issues raised by the KBA in its brief to this Court.

The mail fraud indictment charged Burns with being involved in a scheme staging automobile accidents and filing fraudulent lawsuits to defraud an insurance company. The transportation of stolen money indictment alleged that Burns (1) knowingly accepted money stolen in an armed robbery and murder as a fee for representing one of the defendants prosecuted for those crimes and (2) transported the stolen money from Florida to Kentucky. Specifically, the indictment alleged that Roger Dale Epperson, Benny Lee Hodge, and Donald Terry Bartley stole approximately $1.9 million from Dr. Roscoe Acker in an armed robbery during which they killed Acker’s daughter; that some of the money was disposed of to pay legal fees for the perpetrators; and that Burns knowingly received part of the stolen money in Florida and transported it into Kentucky as his fee for representing Epperson. Burns pled guilty to both mail fraud and transporting stolen money across state lines. Burns’s client, Epper-son, was sentenced to death.

The KBA also alleges, and the Committee seemingly accepted, that Burns accepted a $75,000 kickback from attorney Dale Mitchell for cajoling Hodge’s wife into hiring Mitchell as defense counsel for Hodge. Further, according to the KBA, Burns admitted to taking a total of $250,000 in stolen money but only testified at the Committee hearing to returning $225,000 to Dr. Acker despite vowing under oath to make complete restitution when entering his guilty plea on the transportation of stolen money charges.

The KBA also points out that Hodge’s counsel, Mitchell, was initially Burns’s criminal defense counsel when Burns was indicted for knowingly accepting the stolen money; yet, Burns continued to represent Epperson in the capital murder case despite this conflict. The KBA also points out that Epperson has a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion pending alleging that Burns rendered ineffective assistance on a wide variety of grounds that would constitute professional misconduct if proven. But Epperson’s allegations of professional misconduct — other than the criminal acts to which Burns pled guilty in the federal indictment — have never been fully tried after this Court’s 1986 summary order granting his motion to resign under terms of disbarment.

Many years after being released from federal prison, Burns filed an application for reinstatement in early 2004. Because of the length of his absence from the practice of law and the serious nature of the misconduct leading to his disbarment, the Character and Fitness Committee investigation of Burns took over a year to complete. Then the application process was continued indefinitely because of Burns’s ill health.

In 2007, this Court issued an order indicating that the application proceeding would be dismissed for lack of prosecution. Burns responded, citing his health problems; and this Court allowed him additional time to retain an attorney and update his application. The reinstatement application process then proceeded with a formal hearing conducted before the Character and Fitness Committee in July 2009.

In its recommendation to the Board of Governors, the Committee noted the standards for ruling on an application for reinstatement established by our Rules:

A reinstatement applicant has the burden of proving, by clear and convincing evidence, that he/she possesses the requisite character, fitness and moral qualifications for readmission to the practice of law. SCR 2.300(6) and SCR 3.380. In making this determination, the Committee considers, among others, the following nonexclusive factors:
(a) Whether the Applicant has complied with every term of the order of suspension.
(b) Whether the Applicant’s conduct, while under suspension, shows that he is worthy of the trust and confidence of the public.
(c) Whether the Applicant possesses sufficient professional capabilities to serve the public as a lawyer.
(d) Whether the Applicant presently exhibits good moral character.
(e) Whether the Applicant appreciates the wrongfulness of his prior misconduct, has manifest contrition for his prior professional misconduct, and has rehabilitated himself from past derelictions.
Failure to meet any of the above criteria may constitute sufficient basis for denial of an application for reinstatement. SCR 2.300(6)(e).
Applicants for reinstatement are held to a substantially more rigorous standard than a first-time Bar Applicant!,] and the proof presented must be sufficient to overcome the prior adverse judgment. SCR 2.300(7).

The Committee also summarized pertinent cases from this Court governing reinstatement, including holdings that:

1) A reinstatement applicant has the burden of proving that the applicant meets requirements for reinstatement;
2) The applicant must demonstrate exemplary conduct since disbarment and the applicant’s worthiness of public confidence and trust to merit reinstatement; and
3) The applicant must demonstrate complete candor with reviewing authorities at all times to merit reinstatement.

Burns does not take issue with these governing standards.

The Committee’s findings focused on vexing issues of whether Burns had fully complied with the terms of his disbarment, especially the prohibition against engaging in the practice of law or holding himself out to be an attorney during his disbarment; his lack of candor, especially in regard to alcohol abuse and violent behavior; and his failure to take full responsibility for his criminal and professional misconduct.

II.COMPLIANCE WITH TERMS OF SUSPENSION OR DISBARMENT.

Concerning the relevant factor of compliance with the order of disbarment, the Committee observed that evidence indicated that Burns had complied with the requirement that he notify clients of his inability to represent them. But the Committee was not persuaded that Burns had fully complied with the terms of his disbarment, pointing to evidence that after he was disbarred, Burns continued to identify himself as an attorney in making political campaign contributions and engaged in actions approximating the unauthorized practice of law.

The Committee acknowledged that Burns was entitled to draft pleadings for lawsuits in which he represented himself, but it found that “some of his legal work may have crossed the line” when he assisted an individual with filing a bar complaint against another attorney. The Committee specifically noted the individual’s testimony that “he [Burns] told her it would keep him [Burns] from being re-admitted if the KBA found out that he had helped her[,]” which the Committee believed “indicates that he [Burns] thought he was doing something wrong and did it anyway.”

The Committee also cited “[h]is work as an ‘investigator’ and paralegal” for an attorney as “another example of Mr. Burns engaging in activities that may or may not have been practicing law, but are close enough to the line to be of concern.” Although it had “no reason to disbelieve” the attorney who testified to having no knowledge of Burns practicing law after his disbarment, it nonetheless acknowledged that it could not reasonably “expect an attorney to admit he had assisted an individual in unlawful practice.... ”

III. POSSESSION OF SUFFICIENT PROFESSIONAL CAPABILITIES.

The Committee noted that Burns claimed to have completed the required number of CLE hours from the date of his application for reinstatement in 2004 to the present. The Committee stated in its findings that it believed Burns had satisfied these requirements “but will leave the final word on this matter to the [CLE Commission of the] KBA.” Despite the apparent compliance with CLE requirements, however, the Committee was not convinced that Burns was sufficiently truthful to merit reinstatement, finding a general lack of candor with the Committee that could foreshadow a future lack of candor with courts.

IV. TRUSTWORTHINESS, PUBLIC TRUST, AND GOOD MORAL CHARACTER.

The Committee made very specific findings indicating why it did not believe Burns exhibited the requisite moral character to practice law and engender public trust and confidence in members of the bar, especially noting Burns’s lack of candor and the inconsistency in his testimony regarding substance abuse and violent behavior:

The most damaging factor the Committee considered with regard to Mr. Burns’[s] character is his lack of candor. As summarized above, in his testimony before the Committee he repeatedly maintained that he was only guilty of crossing state lines with money he knew to be stolen and planning to file a fraudulent lawsuit. Only after intense cross-examination did he admit to the Committee what he admitted in Federal Court, that he committed multiple acts with his co-conspirators in furtherance of the fake accident and fraudulent personal injury claims.
Mr. Burns’[s] hearing testimony regarding violent behavior was inconsistent and lacking in truthfulness. After denying the occurrence of domestic violence in his marriage to Asonia Burns, he then said he might have slapped her one time. Afterward, he attempted to correct his testimony to say that he could have been violent with her in a drunken stupor.
Mr. Burns also exhibited a lack of candor regarding his problems with alcohol. Under cross-examination, he admitted to the Committee that he was not truthful regarding his drinking habits to Judge Eugene Siler at the hearing when he pled guilty to the crimes of mail fraud and receiving stolen money. He told Judge Siler that he was never a big drinker and would only take a social drink.
His testimony at the July 1, 2009[,] hearing regarding alcohol use was inconsistent and, at times, less than truthful. He claimed to have abused alcohol only during the period about three years before he was arrested; and only because of physical pain. Several witnesses were asked to verify that he drank alcohol in exeess because of severe pain and only in the three years before he was arrested; however, the Committee heard no support for that claim. He first testified that he had only one drink after he was released from prison; and only under cross-examination by the Committee did he admit to some “very slight” drinking after prison before quitting entirely.
Other evidence, however, indicates a much more serious alcohol abuse problem. For example, in 2005, Roy Campbell commented to the Committee’s investigator about his and Mr. Burns’[s] drinking habits, yet Mr. Burns denied that they ever drank alcohol together; and his daughter told the investigator that when he started drinking again after prison, he was physically abusive toward her mother. Even Mr. Burns, at one time in his testimony, said he would take his ex-wife’s word as to any violence because he was a “real drunk.”
Because of his inconsistent and untruthful testimony, the Committee cannot be certain as to whether or not Mr. Burns continues to abuse alcohol and whether or not he continues to commit acts of violence. At the very least, he has not been candid with the Committee.

In addition to lack of candor and inconsistency regarding his alcohol consumption, the Committee also noted evidence that Burns had not participated in KYLAP and otherwise did not seem to be sincerely and actively pursuing treatment for apparent alcoholism:

During cross-examination, Mr. Burns denied that he is an alcoholic ... and stated that he has never participated in KYLAP because he has not needed to.... He repeated that he “took a very extensive course in Triple A (AAA) [presumably an attempted reference to Alcoholics Anonymous] furnished by the United States Bureau of Prison and “taught in it and counseled in it for months.... He explained what it means to be an instructor by saying, “you have to stand up and first you say, I’m a drunkard. I’m a drunk. I’m an alcoholic and all that bull.”....
Randall Ratliff, Director of KYLAP[,] testified that participants in Alcoholics Anonymous do not “graduate” and that AA does not utilize anyone as an “instructor” .... He stated that the 12th Step in AA is to carry the message to other people, which is an essential part of one’s own personal recovery.... Mr. Ratliff testified that, to his knowledge, Mr. Burns has never contacted KYLAP or participated in its program.

The Committee also noted that Burns admitted to giving several different addresses on various documents while divorce proceedings in which proper venue was a hotly contested issue were pending, beginning around the year 2000, which was several years after he was released from federal prison.

V. CONTRITION, REMORSE, AND REHABILITATION

The Committee found that Burns did not show sufficient appreciation of the wrongfulness of criminal misconduct, contrition for such misconduct, present rehabilitation, or candor with the Committee. To the contrary, the Committee found that Burns attempted to minimize his crimes or shift the blame to others. Specifically, it found that:

In testimony before the Committee, Mr. Burns tried to minimize his wrongful actions. Rather than admit responsibility for his wrongful conduct in the mail fraud, he testified that government agents targeted him after he successfully defended a criminal case in West Virginia. He tried to minimize it further by saying he was not supposed to receive any of the money and that his only wrongdoing was planning to file the lawsuit. The indictment and guilty plea transcript show otherwise. As previously stated, Mr. Burns has not been candid in his dealings with the Committee.
Regrettably, Mr. Burns still has not shown the Committee persuasive proof of rehabilitation in the area of alcohol abuse, anger management[,] and his tendency to be untruthful when it serves his purposes. The evidence before the Committee is replete with examples of his untruthfulness.

VI. ANALYSIS.

Burns contends that in recommending denial of his application for reinstatement, the Committee and the Board incorrectly rely primarily on testimony “from those who knew Mr. Burns before, during and immediately after the occurrence of the problems he had with the law and the Kentucky Bar Association,” and “fail to address Mr. Burns[’s] actions since the time of the divorce from his wife.” He states that the investigative reports filed include “interviews with people who have known the Applicant the last ten years and they indicate that he is of good moral character and believe his application for reinstatement should be approved.” He also points to the testimony of his daughter, who wished for her father to be reinstated so he could help people by practicing law, and to his own testimony indicating that he is embarrassed by and remorseful for his actions resulting in his disbarment and wishes to help people through law practice. He also contends that he has paid his debt to society, including time in federal prison, and that after being unable to practice law for over twenty years, he “wants to feel whole again.”

Despite these arguments, we conclude that there was ample evidence supporting the Committee’s and Board’s findings that Burns lacked the requisite character and was not sufficiently rehabilitated to merit reinstatement. We further agree with their recommendations to deny the reinstatement application. We note that there is no requirement that these regulatory bodies focus exclusively on present events and overlook significant and troubling criminal conduct occurring more than ten years ago. In any event, the Committee emphasized that Burns’s lack of candor and inconsistency in his hearing testimony indicated that he currently lacks the requisite moral character to be reinstated to the practice of law. And even if Burns “has not returned to the depths of wrongdoing that plagued him” in the past and even though the evidence may show that “he has taken steps toward rehabilitation!;,]” a disbarred attorney bears a much higher burden to prove his character and fitness than an initial bar applicant. So the present lack of candor, inconsistencies in sworn statements, and failure to take full responsibility for misconduct call for denial of the reinstatement application.

Unlike a disciplinary case in which the KBA bears the burden of proof, a disbarred attorney seeking reinstatement bears the burden of proof. We commend the steps Burns has taken toward rehabilitation. But, in light of the heavy burden that a disbarred applicant bears to convince disciplinary authorities and this Court that the applicant can be entrusted with a law license and the undisputed facts here, we agree with the Committee’s and Board’s recommendations.

Accordingly, the Court ORDERS:

1) Lester Burns’s application for reinstatement is denied; and
2) In accordance with SCR 3.510, Mr. Burns shall pay costs associated with this proceeding for which execution may issue from this Court upon finality of this Opinion and Order.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, SCHRODER, and SCOTT, JJ.; and SEAY and BULLOCK, Special JJ., sitting. All concur. NOBLE and VENTERS, JJ., not sitting.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . One member of the board abstained from voting; sixteen members voted to recommend disapproval of the application, and no members voted to recommend approval of the application.

      . SCR 2.300(7), which governs applications for reinstatement, provides that: "The prior determination that he/she engaged in professional misconduct continues to be evidence against him or her and the proof presented must be sufficient to overcome that prior adverse judgment.”

      . Committee Findings of Fact, Conclusion of Law and Recommendation. ("Mr. Burns testified that about this same time [that he was involved in or charged with the staged accidents and insurance fraud], he was asked to represent one of the defendants in a Letcher Countyf] Kentucky^] robbery and murder case. At her request, he met the wife of Defendant Roger Epperson at a motel in Florida and accepted $175,000 in cash as his fee for representing Roger Epperson. He said he knew, at the time, that the payment was part of the money stolen from Dr. R.J. Acker, whose daughter was murdered during the robbery.... He received another $75,000 from Dale Mitchell for arranging Mitchell's representation of one of the other defendants.”).

      .We note there is conflicting evidence because the committee report states that Dr. Acker wrote the Parole Board to confirm that Bums had returned the money to him.

      . White v. Kentucky Bar Association, 989 S.W.2d 573, 576 (Ky.1999).

      . Lester v. Kentucky Bar Association, 532 S.W.2d 435, 436 (Ky.1976).

      . In re Cohen, 706 S.W.2d 832, 834-35 (Ky.1986).

      . From our review of the record, Burns and his ex-wife both filed for divorce in the year 2000, although we are not aware of when the divorce decree was entered.

      . Futrell v. Kentucky Bar Association, 189 S.W.3d 541, 550 (Ky.2006) ("While Futrell's brief musters, in great detail, the evidence that supports his contention of rehabilitation, it is not enough to outweigh the evidence discussed above.... [W]e must also remember that a higher character of conduct is required of a disbárred attorney than of an original applicant. Simply put, Futrell’s lack of candor, the inconsistencies and omissions in his sworn statements, and his unwillingness to concede that he engaged in wrongdoing or even to show any remorse for his actions all point to a lack of rehabilitation. Admittedly, Futrell has not returned to the depths of the wrongdoing that plagued him in the 1980s, and there is some, one might even say substantial, evidence that he has taken steps toward rehabilitation. But Futrell bears the burden of demonstrating] by clear and convincing evidence his [ ] suitability for reinstatement. ... Given this high burden of proof, and the facts,discussed herein, we con-elude that Futrell has failed to demonstrate that his conduct and character since disbarment ... show that he is worthy to have public confidence and trust placed in him.”) (internal quotation marks and citations omitted).

      . SCR 2.300(6) ("While the burden of proof in a disciplinary proceeding rests with the KBA, in reinstatement cases[,] the applicant has the burden of proving by clear and convincing evidence that he/she possesses the requisite character, fitness and moral qualification for re-admission to the practice of law."); SCR 3.330 ("The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. In reinstatement hearings!,] the burden shall rest upon the Applicant!;] and he/she must demonstrate by clear and convincing evidence his/ her suitability for reinstatement.”).

      . SCR 3.510(1) requires applicants for reinstatement to post a bond of $2,500 to secure the costs of a reinstatement proceeding and further provides that "[a]ny additional costs shall be paid by Applicant.” The KBA certified its costs in this proceeding as totaling $5,859.03.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Charles C. LEADINGHAM, Respondent.
    No. 2010-SC-000420-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

Charles C. Leadingham, KBA Member Number 82296, was admitted to the practice of law in the Commonwealth of Kentucky on October 30, 1987. His Bar Roster address is 215 15th Street, P.O. Box 387, Ashland, Kentucky 41105. Before the Court is the Board of Governors’ Findings of Fact, Conclusions of Law and Recommendations of June 15, 2010, which found the Respondent guilty, by default, of not refunding the unearned portion of a fee paid on behalf of a client and of not responding to a demand for information from the Inquiry Commission. The Respondent was also found guilty, by default, of five Counts relating to his representation of another client in a bankruptcy case. The Board of Governors consolidated the I charges for purposes of considering appropriate discipline and recommended that Respondent be suspended from the practice of law for three years. All seven [counts, in two separate charges, were be-Ifore the Board of Governors by default, land are before this Court pursuant to SCR (3.370(10) (no request for review nor issuance of a notice of review). Therefore, we adopt the decision of the Board of Governors.

KBA File No. 18055

I The first case before us involved two l.ounts against the Respondent. Respondent represented a defendant who had Been indicted on one count of Possession of Blatter Portraying Sexual Performance of B Minor. A signed fee agreement called B)r an initial, non-refundable payment of ■3,000.00, with another payment of ■3,000.00 if the matter proceeded to trial. I. family member of the defendant paid the Biitial $3,000.00 fee. Respondent notified lie family that a trial would be necessary lid the Respondent received the second ■í,000.00. Before the trial date, the defendant was indicted on federal charges and the state case was dismissed. Respondent was suspended from the practice of law by this Court on March 19, 2009. Respondent notified the client of his suspension and of the fact that he could no longer represent the client. However, the letter did not address a refund nor did it address an accounting of how much of the second $3,000.00 was earned before the suspension.

A Bar Complaint was filed against the Respondent and the Office of Bar Counsel sent the Respondent a letter requesting an explanation of the time spent on the case and whether any part of the fee was unearned, particularly in light of the fee agreement that called for the additional $3,000.00 only in the event the matter went to trial. Respondent failed to respond, and a reminder letter was sent to Respondent informing him of his obligation to respond under the Rules of Professional Conduct. Again, Respondent did not respond. Based on the above facts, Respondent was charged with two counts of violating the Rules of Professional Conduct. Count I charged Respondent with a violation of SCR 3.130-1.16(d), which requires refunding any advance fee not earned. Count II charged Respondent with a violation of SCR 3.130-8.1(b), which requires a lawyer to respond to a lawful demand for information from a disciplinary authority.

KBA File No. 18192

In the second case before us, the Respondent was paid $800.00 of a $1,300.00 fee to represent a client in a Chapter Seven bankruptcy proceeding. The client provided relevant information and was scheduled to meet Respondent for a final meeting on September 18, 2009. Respondent rescheduled the meeting for September 21, 2009, but failed to show or return the client’s phone calls and failed to respond to the client’s mailings. At that time, Respondent was still under suspension from the practice of law from a March 19, 2010, suspension by this Court. Although the March 19 Opinion and Order required the Respondent to notify his clients by mail of his suspension and to send a copy of these letters to the KBA, the KBA never received a copy of a letter addressed to Respondent’s bankruptcy client.

The client filed a Bar Complaint against the Respondent. He was served with the Bar Complaint, along with a letter from the Disciplinary Clerk that the Inquiry Commission required additional information from him concerning the complaint, and that failure to respond could result in additional charges. Respondent failed to respond and did not respond to a reminder letter with the same information.

By default the Board of Governors found Respondent guilty of Count I, a violation of SCR 3.130-1.3, which requires a lawyer act with reasonable diligence and promptness in representing a client; Count II, a violation of SCR 3.130-1.4(a) and (b), which requires a lawyer keep a client informed about the status of the case and comply promptly with reasonable requests, and to explain matters to the extent reasonably necessary to permit clients to make informed decisions; Count III, a violation of SCR 3.130-1.16(d), which requires a lawyer surrender the file and any unearned fee to a client upon termination of representation; Count IV, a violation of SCR 3.130-3.4(c), which prohibits a lawyer from knowingly or intentionally disobeying an obligation under the rules of a tribunal; and Count V, a violation of SCR 3.130-8.1(b) which requires a lawyer respond to a lawful demand for information from a disciplinary authority.

Prior Discipline

The Board of Governors reviewed the Respondent’s file of prior discipline to determine the appropriate discipline in these two combined cases. On January 21, 2010, Respondent was suspended from the practice of law for 120 days, retroactive to May 20, 2009, for his representation in two previous cases. The facts as found by the Trial Commissioner, which we adopted, found that Respondent was accepting fees from clients and not doing the work (the same as in the cases now before us).

Respondent also received a sixty-one day suspension on March 19, 2009, for four violations of the Rules of Professional Conduct. More specifically, he was charged with violations of SCR 3.130-1.3 (reasonable diligence and promptness in representing a client), SCR 3.130-1.4 (keeping a client reasonably informed), SCR 3.130-1.15(b) (returning unearned funds), and SCR 3.130-8.1(b) (fully responding to a demand for information from a disciplinary authority). These charges stemmed from the Respondent’s accepting I a client and a fee to litigate against the | former owners of the client’s house. Respondent failed to file the suit, failed to I return the client’s phone calls, failed to I keep the client informed about the case, I failed to return any of the fee, and failed to | respond to the Board of Governors.

Respondent received a thirty-day sus-i pension on November 26, 2008, probated! for one year on the condition that Respondent attend the Ethics and Professionalism Program during 2009, for violating SCR 3.130-3.4(c) and SCR 3.130-8.1(b). In this case, Respondent represented two clients in two separate Court of Appeals cases. One case was dismissed when the Respondent failed to file a brief, and the other was dismissed when he failed to file the brief or a motion to dismiss. Respondent would not respond to the Inquiry Commission’s demands for information in either case.

Finally, Respondent received a public reprimand on May 23, 2001, for violations of SCR 3.130-1.4(a) and SCR 3.130-1.16(d), when he undertook representation of a client in a divorce case. Respondent failed to return phone calls and a letter from the client, and failed to notify the client that he would no longer represent the client.

Board’s Recommendation

After reviewing and considering Respondent’s prior discipline, the Board of Governors recommended the Respondent be suspended from the practice of law in this Commonwealth for three years, ordered to pay restitution for unearned fees to his clients (or to the Client Security Fund as the case may be), and the costs of this proceeding. Respondent did not respond to the Board of Governors’ recommendation to this Court, and this Court has elected not to issue a notice of review. Therefore, under SCR 3.370(10), this Court shall enter an order adopting the decision of the Board.

Therefore, it is hereby ORDERED that:

1.Charles C. Leadingham is adjudicated guilty of violating SCR 3.130-1.16(d) and SCR3.130-8.1(b) in KBA File No. 18055.
2. Charles C. Leadingham is adjudicated guilty of violating SCR 3.130-1.3, SCR 3.130-1.4(a) and (b), SCR 3.130-1.16(d), SCR 3.130-3.4(c), and SCR 3.130-8.1(b) in KBA File No. 18192.
3. Charles C. Leadingham is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of three years. Said suspension is to be served consecutive to any and all suspensions ordered prior to, or the same date as, this suspension.
4. Pursuant to SCR 3.390, Charles C. Leadingham shall send letters to all Courts in which he has matters pending, if any, and to all clients whom he is actively representing, if any, within ten days of this Opinion and Order, notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Charles C. Leadingham shall also provide a copy of such letters to the Director of the KBA and cease advertising activities, if any.
5. Pursuant to SCR 3.450, Charles C. Leadingham is ordered to pay restitution of the unearned fees to the above clients in each case or to the Client Security Fund.
6. Charles C. Leadingham shall pay the costs of this disciplinary proceeding, said sum being $623.16, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: AUGUST 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . KBA File No. 18055.

      . KBA File No. 18192.

      . Kentucky Bar Ass’n v. Leadingham, 281 S.W.3d 284 (Ky.2009).

      . Id.

      . Kentucky Bar Ass’n v. Leadingham, 302 S.W.3d 79 (Ky.2010).

      . Kentucky Bar Ass’n v. Leadingham, 281 S.W.3d 284 (Ky.2009).

      . Kentucky Bar Ass'n v. Leadingham, 269 S.W.3d 419 (Ky.2008).

      . Leadingham v. Kentucky Bar Ass'n, 44 S.W.3d 374 (Ky.2001).


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Jennifer Sue WHITLOCK, Respondent.
    No. 2010-SC-000238-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

A trial commissioner has recommended that Jennifer Sue Whitlock, who was admitted to practice law in Kentucky on April 16, 1998, whose Bar Roster Address is P.O. Box 171, 1401 Winchester Avenue, Suite 526, Ashland, Kentucky 41105, and whose KBA Member Number is 87562, be suspended for one year for professional misconduct related to her representation of Rebecca Anderson.

Ms. Anderson hired Whitlock in 2007 to represent her in a lawsuit in Elliott County. Ms. Anderson had previously filed suit in small claims court, and Whitlock agreed to withdraw the case from small claims and file it in either district or circuit court. Ms. Anderson signed an agreement with Whitlock on November 1, 2007 and paid her a $200 retainer.

Ms. Anderson next spoke with Whitlock in July 2008, when Whitlock asked for all the evidence related to the case. Ms. Anderson mailed the requested information on July 11, 2008. In August or September, Whitlock told Ms. Anderson that she had won the case and would be sending a check, minus the remainder of the fee.

Ms. Anderson never received such a check, and Whitlock failed to return multiple phone calls. When Ms. Anderson contacted the Elliott Circuit Clerk’s office to confirm the status of her case, she was informed that no case existed and that the original small claims complaint had never been withdrawn. Again, Ms. Anderson attempted to contact Whitlock by phone, leaving multiple messages, but she received no response.

Ms. Anderson filed a Bar complaint, which was served on Whitlock on November 26, 2008. Whitlock did not respond to the Bar complaint.

In March 2009, the Inquiry Com- | mission issued a formal charge containing six counts. The charge alleged violations I of SCR 3.130-1.3 for failing to act with reasonable diligence and promptness in representing a client; SCR 3.130-1.4(a) for [failing to keep the client informed and [failing to respond to the chent’s requests [about the status of the case; SCR 3.130-[1.15(b) for failing to return the unearned [portion of a fee to her client and failing to [render an accounting of work performed Iwhen asked to do so; SCR 3.130 — 1.16(d) Ifor failing to protect the client’s interests lat the termination of representation; SCR |3.130-8.1(b) for failing to respond to the |bar complaint; and SCR 3.130-8.3(c) for engaging in conduct involving dishonesty, raud, deceit, or misrepresentation.

Whitlock filed an answer to the charge which she admitted the allegations “in Lhat [she] did not file the requested complaint.” She provided no other substantive response to the allegations in the charge, [hough she did allege that she suffered |rom severe emotional problems, specifical-an eating disorder, related to past abuse and was under the care of a psychotherapist.

Several pre-hearing conferences were subsequently held to discuss witnesses, scheduling, etc. Eventually, the hearing was set for December 1, 2009 to be held telephonically. On the morning of December 1, Whitlock sent an email to bar counsel indicating she would not be participating in the hearing. Bar counsel called a single witness, Ms. Anderson, at the hearing.

After the hearing, the trial commissioner concluded Whitlock was guilty of all six alleged violations of the Rules of Professional Conduct. In recommending a sanction, the trial commissioner reviewed and took into account Whitlock’s prior discipline, which included: (1) a private admonition in August 2008, (2) a 30-day suspension in December 2008, with the requirement that she attend the Ethics and Professionalism Enhancement Program presented by Bar Counsel in April 2009, (3) a 181-day suspension for misconduct related to two cases in March 2009, (4) a private admonition in May 2009, and (5) a second private admonition in September 2009.

The trial commissioner recommended that Whitlock be found guilty of having engaged in misconduct, be suspended for one year, and be ordered to refund the $200 and return the files and other documents to Ms. Anderson.

Neither Whitlock nor Bar Counsel has filed a notice for this Court to review the trial commissioner’s decision as allowed under SCR 3.370(8). As such, the case is before this Court pursuant to SCR 3.360(4) and 3.370(10). Because the trial commissioner’s findings and conclusions are supported by the record and the law, and because the recommended sanction is appropriate in light of Respondent’s history of prior discipline, her failure to respond formally to the charges against her, and the seriousness of the charges, this Court elects not to review the recommendation of the Board as allowed under SCR 3.370(9). Though the trial commissioner’s findings and conclusions are advisory only, SCR 3.360(2), because no review has been sought and the Court sees no reason for its independent review, the decision of the trial commissioner is adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) Respondent, Jennifer Sue Whitlock, is found to have committed the misconduct alleged in the charge against her. She is therefore suspended from the practice of law in the Commonwealth of Kentucky for one year from the date of this Order.
(2) Respondent shall refund $200 in unearned fees to her client Rebecca Anderson and shall return Ms. Anderson’s file and documents.
(3) In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against her, said sum being $228.97, for which execution may issue from this Court upon finality of this Opinion and Order.
(4) Pursuant to SCR 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of her inability to represent them, and notify all courts in which she has matters pending of her suspension from the practice of law, and furnish copies of said letters of notice to the Director of the Kentucky Bar Association, assuming that this is necessary given that she was already suspended from the practice of law. Furthermore, to the extent possible and necessary, Respondent shall immediately cancel and cease any advertising activities in which she is engaged.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Though the trial commissioner could not have considered it at the time, this Court recently suspended Whitlock from the practice of law for one year. See Kentucky Bar Ass’n v. Whitlock, 311 S.W.3d 246 (Ky.2010).