Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, March 3, 2021

State of Ohio v. Robert L. Bates, Case no. 2020-0255
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Jacob R. LaRosa, Case no. 2020-0337
Eleventh District Court of Appeals (Trumbull County)

In the Matter of the Application of Suburban Natural Gas Company for an Increase in Gas Distribution Rates, for Tariff Approval, and for Approval of Certain Accounting Authority, Case no. 2020-0781

Disciplinary Counsel v. Eric C. Deters, Case no. 2020-1497

Is Postrelease Control Sentence Vacated Because State Didn’t Appeal Trial Court Error?

State of Ohio v. Robert L. Bates, Case No. 2020-0255
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Does the failure to correct an improperly imposed postrelease control sentence on direct appeal preclude postrelease control supervision at the end of a person’s prison sentence?

Robert Bates was convicted in July 2008 for kidnapping with a sexual motivation, two counts of robbery, and four counts of rape. At Bates’ sentencing in October of that year, the judge imposed nine years in prison as well as a mandatory five-year term of postrelease control (PRC). The judge didn’t explain the consequences for a PRC violation. The court’s entry stated that PRC for five years was part of Bates’ sentence. Bates lost an appeal of his convictions and sentence unrelated to the PRC.

In October 2018, a hearing was held to advise Bates of his sexual offender registration requirements. The prosecutor noted that the court’s sentencing entry 10 years earlier didn’t state whether his PRC sentence was mandatory, nor the consequences for violations. The 2018 court made the correction in a revised entry and notified Bates that his five years of PRC was mandatory and about the consequences of violating his PRC.

Bates appealed the reimposition of his PRC at the 2018 hearing, but the Eighth District Court of Appeals upheld the trial court’s action. Bates appealed to the Ohio Supreme Court, which accepted the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Supreme Court Rules in Two PRC Cases Last Year
The Court accepted Bates’ appeal in this case in March 2020. The Court decided State v. Harper in May 2020 and State v. Hudson in July 2020. Both cases addressed challenges to PRC sentences imposed by trial courts. The rulings stated that a trial court error made when imposing PRC doesn’t void the person’s sentence. The Court also stated that claims challenging PRC sentences must be raised in a direct appeal of the conviction.

Bates Contends His Case Is Different from 2020 Decisions and State Had to Appeal Mistake
Bates states that the Supreme Court decisions addressed the failure of a trial court to journalize what PRC it imposed in an open sentencing proceeding. However, Bates argues, Harper and Hudson didn’t deal with the situation when a trial court fails to properly impose PRC in open court, rather than in its journal.

Bates also argues the prosecutor couldn’t raise issues in 2018 about the original, flawed PRC sentence because the prosecutor didn’t object at the 2008 sentencing and can only make this claim in a direct appeal, which the state did not pursue.

Because the PRC couldn’t take effect because it wasn’t properly imposed, his sentence with no PRC was final once the direct appeal was over, Bates maintains. Under Harper and Hudson, his PRC sentence must be vacated because the trial court didn’t properly impose the sentence and it wasn’t corrected in a direct appeal, Bates concludes.

Prosecutor Argues 2020 Decisions Apply and Bates Had to Appeal Any PRC Error
The Cuyahoga County Prosecutor’s Office maintains that Bates’ claim about aspects of the trial court’s imposition of PRC in open court is a new issue that Bates didn’t raise in the lower courts. The prosecutor argues Bates cannot raise this issue now, and the Court should dismiss his appeal as improvidently allowed.

Regarding Bates’ argument that Harper and Hudson involved only written errors about PRC in court journal entries, and not mistakes made in open court, the Court made no such distinction, the prosecutor states.

The prosecutor also notes the correction requested in 2018 by the prosecutor and made by the trial court were permitted before Harper and Hudson were decided in 2020. Since those rulings, however, a trial court no longer can fix an improperly imposed PRC sentence unless done within the context of a direct appeal, the prosecutor states. But Bates didn’t challenge his PRC sentence in his direct appeal, so his current claim is now barred, the prosecutor argues.

Attorney General Emphasizes Bates Had Burden to Appeal
In an amicus curiae brief supporting the prosecutor’s position, the Ohio Attorney General’s Office maintains the aggrieved party has the burden to appeal a trial court’s alleged mistake in imposing a PRC sentence. Bates contends that the state was the aggrieved party in this case and had to appeal the trial court’s error in imposing his PRC. However, the attorney general argues, Bates, not the state, was the aggrieved party because he would have benefited from the notice about PRC that the trial court should have given him. And Bates didn’t appeal the mistake until now, many years later, the attorney general notes.

The Cuyahoga County prosecutor and the attorney general will share the prosecutor’s time for oral argument before the Court.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Robert L. Bates from the Cuyahoga Public Defender’s Office: John Martin, 216.443.3675

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, 216.698.2726

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Was Seizure of Personal Items from Hospital Room Unconstitutional?

State of Ohio v. Jacob R. LaRosa, Case No. 2020-0337
Eleventh District Court of Appeals (Trumbull County)

ISSUE: Did the seizure of personal items from a hospital room violate the right to be free from unreasonable searches and seizures, as provided by the U.S. Constitution’s Fourth and Fourteenth amendments and by Ohio Constitution, Article I, Section 14?

Fifteen-year-old Jacob LaRosa went home on March 31, 2015, after drinking heavily with friends. His mother said the teen repeatedly walked into doors, then rested on the bathroom floor. Thinking Jacob had been beaten up, she called 911.

A Niles police officer responded, and Jacob was taken by ambulance to St. Joseph’s Hospital. Another Niles police officer was dispatched to the hospital to secure Jacob, who had become a suspect in a homicide near his home. That afternoon the daughter of Marie Belcastro, 94, found her mother’s house broken into and her mother beaten to death.

The officer located Jacob in the hospital and handcuffed him to the bed. According to LaRosa’s brief, the officer took long strands of hair from the sheet where Jacob was sitting. Later, the officer had Jacob’s mother leave the room. Jacob was wearing boxer shorts and socks, which were removed for a medical exam. The nurse bagged the items, and the officer took them.

After Jacob went to use the restroom, the nurse wiped him with a washcloth. The nurse told the officer she noticed what looked like blood on the washcloth. The officer took the washcloth as evidence.

Jacob was questioned by police at the hospital, and search warrants were obtained for swabs of his mouth, hands, and genitals.

Teen’s Case Moved from Juvenile to Criminal Court
A delinquency complaint filed in April 2015 in the Trumbull County Juvenile Court alleged that Jacob had committed aggravated murder, aggravated burglary, aggravated robbery, and attempted rape. The juvenile court determined that Jacob wasn’t amenable to rehabilitation in the juvenile system and transferred the case to the common pleas court’s general division, which hears criminal cases and where he was indicted for the same offenses.

Before trial, Jacob’s lawyer asked the court in December 2017 to suppress statements Jacob made to police officers and the evidence that was gathered. The court denied the motion, ruling in part that there was no government action in the seizure of Jacob’s boxer shorts and underwear, he had no expectation of privacy in his personal effects and clothing when he arrived at the emergency room, and the evidence from the washcloth would have been discovered in other ways.

In February 2018, one day after voir dire began, Jacob pled no contest to each offense. The trial court sentenced him to life without parole for murder, plus consecutive sentences totaling 30 years for the burglary, robbery, and rape offenses.

Jacob appealed to the Eleventh District Court of Appeals, which upheld his convictions and sentence. He appealed to the Ohio Supreme Court, which agreed to review his claim based on the U.S. and Ohio constitutions, which prohibit unreasonable searches and seizures. The Supreme Court will hear arguments in the case by videoconference because of the COVID-19 pandemic. The arguments will be livestreamed.

Teen Contests Turnover of Clothing to Police at Hospital
A search or seizure conducted without a warrant is presumed to be unreasonable unless a legal exception applies. The brief from LaRosa, who is now an adult, states that a two-part test determines whether a person’s Fourth Amendment rights have been violated – whether the search or seizure was conducted by the government or on its behalf, and whether the person had an expectation of privacy.

LaRosa argues that when hospital staff take personal items from a person who enters the hospital, the staff members have a duty to exercise ordinary care to protect the patient’s personal property, and the staff have no legal authority to surrender the property to police.

His brief notes that the trial court ruled his rights weren’t violated because the nurse, not the government, took the items. He maintains, though, that the officer who seized the boxer shorts and socks testified at the suppression hearing that he was directed to seize evidence even though he had no warrant. The officer also indicated the nurse acted under his direction when she placed the shorts and socks into a bag for the officer, LaRosa states.

The trial court also relied on State v. Drain, a 1995 Tenth District Court of Appeals decision, which concluded that a person who appears at a hospital claiming to be a victim has no expectation of privacy, permitting police to seize the person’s clothing. Stating that Drain seems to be the only Ohio case addressing the privacy expectations of hospital patients regarding their personal items, LaRosa maintains several other states have determined hospital patients have an expectation of privacy with their personal items.

LaRosa also argues the warrant for swabs of his hands didn’t permit the scrapings from under his nails that were taken. The warrant didn’t specify nail scrapings, and the trial court should have blocked that evidence from consideration at a trial, he asserts.

Prosecutor Argues Officer Didn’t Direct Seizure of Clothing
The Trumbull County Prosecutor’s Office argues that Fourth Amendment restrictions on searches and seizures apply only to government actions. The prosecutor states that hospital staff removed LaRosa’s clothing, and it was removed for LaRosa’s medical treatment. The clothes were bloody, but LaRosa had no apparent injuries, the prosecutor notes. Although the officer may have told the nurse to put the items in a bag, the seizure of the clothing wasn’t at the state’s direction, the prosecutor contends.

In addition, the prosecutor maintains, Drain explained that police have a right to seize bloody clothing that is evidence of a crime from a hospital to keep it from being destroyed or beyond police reach. LaRosa had no expectation of privacy when he arrived at the hospital as a possible victim of an assault, the prosecutor asserts. The office also points to Ohio cases where police were permitted without a warrant to take items in plain view that might be evidence.

The prosecutor argues that, even without the clothing, “overwhelming evidence” supported LaRosa’s guilt. Liquor bottles were taken from Belcastro’s home, and one bottle found outside her house contained Belcastro’s DNA, LaRosa’s DNA, and his fingerprint, the prosecutor maintains. The office adds that, among other evidence it would have presented at trial, a neighbor’s security video would show LaRosa leaving Belcastro’s house with the liquor bottles.

The prosecutor also contends that LaRosa can claim no expectation of privacy related to the washcloth because it was the hospital’s, not his, property, and the blood was likely the victim’s. Even if LaRosa’s argument prevails, police would have inevitably discovered the same evidence from the swabs taken based on the search warrant, the prosecutor argues.

The office also concludes that the fingernail scrapings were within the scope of the hand swabs allowed by the search warrant because hand swabs reasonably include evidence from the fingernails.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Jacob R. LaRosa: Lynn Maro, 330.758.7700

Representing the State of Ohio from the Trumbull County Prosecutor’s Office: Ashleigh Musick, 330.675.2426

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Were Natural Gas Consumers Unfairly Charged for Pipeline Extension Costs?

In re Application of Suburban Natural Gas Company, Case No. 2020-0781
Public Utilities Commission of Ohio


  • Was a 4.9-mile natural gas pipeline extension in Delaware County both “used and useful” under R.C. 4909.15 by customers at the date selected by the natural gas provider to begin charging customers for the pipeline’s cost?
  • Was only 2 miles of the 4.9 miles of the gas pipeline “useful” to existing customers of the natural gas provider at the date selected to begin charging for the pipeline’s cost?
  • May the Public Utilities Commission of Ohio allow the phasing in of a natural gas rate increase?

Suburban Natural Gas serves about 17,000 customers in a fast-growing area of Delaware County. In 2015, pressure in one of Suburban’s gas lines dropped below the minimum to ensure the safe delivery of gas. Suburban hired an engineering consulting firm, which suggested a 4.9-mile pipeline extension would ensure minimum pressure to a growing customer base for nine years. At a Public Utilities Commission of Ohio (PUCO) hearing, a Suburban engineer testified the consulting firm also modeled a 2-mile extension, and the firm noted the shorter line would ensure minimum pressure for the existing customers through the winter of 2018.

Suburban received a permit to construct the 4.9-mile line, which it sought to complete in February 2019. Suburban also filed a rate increase request with the PUCO to pay for the $8.9 million extension. When seeking a rate, the utility must select a “date certain” from which the cost of new facilities will be added to customer rates. Suburban selected February 2019 to charge customers for the entire 4.9-mile line.

The Ohio Consumers’ Counsel objected to the rate increase, arguing the entire 4.9-mile extension was not “useful,” under R.C. 4909.15, to the existing customers and was overbuilt to accommodate future customers. The consumers’ counsel maintains only two miles of the pipeline was actually all that was useful at the time Suburban started to charge customers for its constructions.

Consumer Advocates Oppose Settlement
Suburban proposed a settlement among the various interested parties in the matter, including the PUCO staff. The settlement would phase in the price of the pipeline over three years with customers paying about half the proposed rate increase, which would raise $1.2 million extra in rates in the first year. The increase would raise by 30% the next year, adding another $364,000 in charges, and increase 20% in the final year, leading to customers paying another $246,000 in additional rates.

The consumers’ counsel opposed the settlement, stating the current customers should have to pay only the costs for the two miles of pipeline extension necessary to ensure adequate service. The office also maintained that the PUCO has no authority under state law to phase in rates. The consumers’ counsel suggested Suburban file a rate that covers the cost of the 2-mile portion and file a second rate case later when it has added enough new customers to justify the full 4.9-mile line.

The PUCO adopted the settlement. The consumers’ counsel appealed the decision to the Ohio Supreme Court, which is obligated to hear challenges to PUCO decisions. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Pipeline Not Yet Useful to Customers, Consumers’ Counsel Argues
The consumers’ counsel explains that R.C. 4909.15 guides how the value of utility property gets incorporated into rates. The law only allows property that is “used and useful” at the date certain selected by the utility to be included in the rate. The “used and useful” provision was primarily adopted to address the purchase of real estate for utility growth plans, the consumers’ counsel notes, and was meant to ensure only the acquired property used for utility purposes was factored into the costs rather than the value of an entire tract of land. The provision also applies to utility equipment such as pipelines, the consumer advocate notes, and customers can’t be charged for utility property that isn’t useful to them.

Because a Suburban engineer acknowledged that only two miles of the pipeline was needed to ensure minimum pressure at the date certain, then 2.9 miles of the line weren’t useful to Suburban customers in February 2019, the consumers’ counsel argues. The office notes that the company gets to select its own date certain based on when it projects that the property will be both used and useful. The 4.9-mile pipeline certainly was used by the Suburban customers in February 2019, the consumers counsel suggests, but only two miles of it was useful. The office argues that Suburban should file a rate to charge customers for only two miles of new line and then file a second charge for the remaining 2.9 miles at time when both its new and future customers find the full length of the line useful.

The consumers’ counsel also maintains state law doesn’t authorize the PUCO to phase in the rate increase. The office contends the PUCO allowed the phase in to prevent Suburban from having to file a second rate increase request. The consumers’ counsel maintains Suburban should have to charge the full rate for the cost of the project that was used and useful to customers on the February 2019 date the company itself selected. The costs for the rest of the expansion needs to be imposed in the future at another date certain selected by the company when it can prove the entire 4.9 miles of pipeline are useful to customers, the consumer advocate concludes.

Extension Immediately Useful to Customers, Commission Asserts
The PUCO notes Suburban’s consulting firm suggested a 4.9-mile extension was necessary to prevent outages and ensure safe and reliable service. The commission maintains the pipeline was both used in February 2019 and useful to the customers.

The PUCO notes that the number of Suburban’s customers relying on the pipeline could grow by 4,000 to 20,000 customers, nearly doubling its customer base within the nine-year timeline projected for the pipeline project. The commission states it was persuaded that the 4.9-mile length could ensure capacity to serve Suburban customers, and it would be burdensome for Suburban to go through the regulatory process to extend the line by two miles and then repeat the process almost immediately to build another 2.9 miles of extension. The commission concludes that because the pipeline was useful to the customers, it was appropriate and less costly to customers to minimize the regulatory and construction costs by approving the rates for the entire 4.9-mile extension.

The PUCO also disputes the notion that it doesn’t have the authority to approve phasing in rate increases. The commission notes the consumers’ counsel’s position is based on a court case where the PUCO imposed the phased-in rates over the objections of the utility. In a case such as this, where Suburban has volunteered to phase in the rates, the law allows it, the commission argues.

Gas Company Supports Commission Decision
The Court allowed Suburban to intervene in the case so that it could argue on its own behalf. The company supports the PUCO decision to include the charge for the full 4.9 miles and agrees the commission has the authority to enter into an agreement with the utility to phase in rates.

The company asserts the consumers’ counsel interpretation of the “used and useful” provision is too limited and is impractical when considering the time to construct pipelines based on forecasts and modeling. Suburban argues that the consumers’ counsel offers no proof that 2.9 miles of the pipeline are excessive. The company maintains using a holistic approach to build a pipeline that can accommodate growth and ensure gas supply while phasing in the costs of construction is reasonable, and the PUCO was authorized to approve the request.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Ohio Consumers’ Counsel: Christopher Healey, 614.466.9571

Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Robert Eubanks, 614.466.4397

Representing Suburban Natural Gas Company: Kimberly Bojko, 614.365.4100

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Former Lawyer Faces $13,000 Fine in Unauthorized Practice of Law Case

Disciplinary Counsel v. Eric C. Deters, Case No. 2020-1497
Board on the Unauthorized Practice of Law

The Board on the Unauthorized Practice of Law has filed a report with the Ohio Supreme Court based on the actions of Eric Deters, a “permanently retired” lawyer who cannot practice law in Ohio. The board found that Deters in January and April of 2018 gave two clients legal advice related to an auto accident case.

The Office of Disciplinary Counsel investigated the complaint and charged Deters with six counts alleging the unauthorized practice of law (UPL). The UPL board dismissed two of the counts, and recommends that the Supreme Court find he engaged in the unauthorized practice of law on the other four counts. The board’s panel that heard the case suggested an order prohibiting Deters from engaging in the practice of law plus a $6,500 civil penalty, but the board determined a $13,000 civil penalty was warranted.

Injured Man Contacts Law Firm after Hearing Former Lawyer on Radio
Clint Pangallo was injured in a motor vehicle accident in September 2017 and contacted Deters Law after hearing Eric Deters on the radio. Clint and his wife, Jillian Pangallo, met with an investigator employed by Deters Law and signed a contingency-fee agreement. A law firm attorney contacted Jillian in October, informing Jillian she was handling their case. A few weeks later, the couple was informed that a different lawyer at the firm would be taking over their case.

In January 2018, Clint sent an email to the new attorney terminating Deters Law’s representation. Eric Deters, whom the Pangallos hadn’t met, contacted the couple, asking them to reconsider and requesting a meeting. The couple eventually agreed to meet the next day at the firm’s Covington, Kentucky, offices. No lawyers were present, and the Pangallos and Deters disagree about much of what happened in the meeting.

After the meeting, the Pangallos continued working with the firm until April 24, 2018, when they emailed a letter to Deters terminating their relationship with the firm.

Board Panel Dismisses Two UPL Allegations, Moves Forward with Others
The disciplinary counsel filed the complaint against Deters with the UPL board in April 2019. Following a January 2020 hearing and consideration of post-hearing briefs, the board’s panel dismissed two counts. One dismissed count was based on Deters attempts to persuade the Pangallos to stay with the firm in January 2018 and representations that he had influence at the firm. The other dismissed count stemmed from the opinions Deters expressed about a slip-and-fall case Clint was making against a grocery store.

The panel agreed with four of the UPL allegations.

The panel determined that Deters’ opinion on the value of the auto accident case was practicing law because he offered it as a nonlawyer firm employee at the January 2018 meeting, which was held to discuss that case, without prior authorization from the firm’s attorney who represented the Pangallos.

The Pangallos also said that Deters discussed the “stacking” of insurance policies at the meeting. In Kentucky, a person can pursue claims through, and receive payments from, more than one insurance company, but Ohio doesn’t allow stacking, the Pangallos said Deters explained. Because the Pangallos’ insurance had low limits and Clint was driving a work vehicle at the time of the accident, Deters recommended that they sue Clint’s employer because the employer would have “bigger pockets,” they said. Deters denied this conversation happened, but the Pangallos testified to it and recalled details. Finding the Pangallos more credible, the panel determined the discussion about stacking insurance policies and the recommendation to sue constituted the unauthorized practice of law.

At the meeting, Deters also arranged a loan for the Pangallos, who were struggling financially. The panel stated that Deters’ explanation about how the loan would work was permissible, but his analysis about how quickly the auto accident case would be settled was legal advice.

After the Pangallos left the firm as clients in April 2018, Deters told them the firm would still seek its contingent fee from the settlement – on top of what the Pangallos would have to pay a new lawyer. The panel viewed this statement as Deters trying to bully the Pangallos into staying with the firm, and found the communication was erroneous legal advice and the unauthorized practice of law.

The UPL board adopted the panel’s findings and recommended a $13,000 civil penalty to deter future misconduct.

Former Lawyer Maintains Meaning of UPL Is Murky
Deters objects to the UPL board’s findings. He states that the unauthorized practice of law is explained in R.C. 4705.07 as holding oneself out as an attorney; representing orally or in writing that one is authorized to practice law; or committing an act prohibited by the Ohio Supreme Court as the unauthorized practice of law. He argues he at no point held himself out as an attorney to the Pangallos nor did he represent to them in writing that he was authorized to practice law. The law firm’s website, his social media posts, and the letter his father sends to clients make clear that his role at the firm is as a paralegal and office manager, Deters maintains.

“I tried to keep [the Pangallos] at Deters Law. I explained all which we had done. With my Dad’s blessing, I reduced the fee. I gave them access to me for communication. I suggested a loan to help them out in dire straits,” Deters writes in his brief.

Noting that the Court prohibits the rendering of legal services by a nonlawyer, Deters states the “rendering of legal services” isn’t defined anywhere. He contends it is unclear what actions exactly are the unauthorized practice of law and that his actions were the same as those taken by law firm staffs across the state. He believes the Court’s rules are meant to cover instances where lawyers and nonlawyers take a fee and don’t perform the work, arguing that didn’t happen with the Pangallos.

Disciplinary Counsel Argues Former Lawyer Understands Unauthorized Actions
The disciplinary counsel responds that Deters refuses to recognize the restrictions placed on him given that he cannot practice law in Ohio and he is a suspended lawyer in Kentucky. With the Pangallos, Deters gave legal advice, set fees, planned legal strategy, and charted the direction of the case, the disciplinary counsel argues.

Deters wants to have it both ways, the disciplinary counsel contends. Deters states that the attorney conduct rules don’t apply to him because he’s no longer a lawyer, but that he can’t be accused of the unauthorized practice of law because other paralegals conduct themselves similarly. However, the disciplinary counsel notes, Deters had been a seasoned legal practitioner with an understanding of what constitutes the unauthorized practice of law.

The disciplinary counsel concludes by quoting the UPL board’s report:

“The panel is convinced that, absent the strong incentive of a civil penalty, he will continue to try to blur the line between what a paralegal does and what a lawyer is licensed to do. In other words, he will continue to try to practice law without a license, whether it is through an alleged authorization by another attorney, or by operating in the gray area of ‘passing along information.’”

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.387.9700

Eric C. Deters, representing himself: 859.363.1900

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