                                                MODIFIED: FEBRUARY 18, 2016
                                              RENDERED: SEPTEMBER 24, 2015
                                                           0 P LI ED

                oSuprrtur           Gatti of
                               2014-SC-000235-CL

 RONNIE LEE BOWLING                                                       MOVANT

          UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF
                KENTUCKY, SOUTHERN DIVISION LONDON
V.                   HONORABLE AMUL R. THAPAR,
                    UNITED STATES DISTRICT JUDGE
                         CIVIL NO. 12-A89-ART

RANDY WHITE (WARDEN, KENTUCKY
STATE PENITENTIARY)                                                 RESPONDENT


                OPINION OF THE COURT BY JUSTICE NOBLE

                            CERTIFICATION OF LAW

      Ronnie Lee Bowling is currently on Kentucky's death row for a pair of
murder convictions obtained in 1992. In 1996, he was also convicted of
attempted murder and sentenced to twenty years in prison, with that sentence
being served concurrently with the earlier one. The judgment in the latter case
failed to award Bowling substantial jail-time credit he was entitled to that
would mean he had served out that sentence in 2009. Nonetheless, the
Department of Corrections has treated that twenty-year sentence as though it
had been served out at that time.
      This case arises from a petition for habeas corpus that Bowling filed in
United States District Court for the Eastern District of Kentucky challenging
his 1996 conviction. Before that court may exercise jurisdiction, however, it
 must first determine that Bowling is "in custody" under the challenged

 conviction. Unable to resolve the question, in part because of a perceived

 conflict in our case law, the district court certified two questions to this Court.

 See Bowling v. White, CIV. 12-189-ART, 2014 WL 1883732 (E.D. Ky. Apr. 29,

2014).

       This Court accepted the certification but agreed only to consider one of

the questions:

       Does Bard v. Commonwealth, 359 S.W.3d 1 (Ky. 2011), control
       Bowling's case, so that the Department of Corrections lacked
       authority to correct the sentencing court's failure to award jail-time
       credit in Bowling's Rockcastle County Case?'

       Although Bard v. Commonwealth continues to be good law, it does not

control Bowling's case, which presents a different factual scenario. Thus, as to

the district court's certified question, under the present version of KRS

532.120(3), the Department of Corrections may award an inmate jail-time

credit that was mistakenly left off.the judgment of conviction and sentence

entered at a time when the trial court was statutorily commanded to award

appropriate credit. Whether Corrections properly did so, and thus did not have

Bowling in custody on that charge at the time he filed his habeas petition,

requires fact-finding that must be done by the district court.

                                    I. Background

       The record in this case is sparse because it concerns the certification of a

question of law, and we are thus dependent on the facts as articulated by the


       I The second question was: "Factually, has Bowling's Rockcastle County
sentence expired?" We did not certify the second question because it required a factual
determination that is the task of the trial court, not of a court that is only certifying
the law.
                                              2
 district court in its request. Nonetheless, some recounting of this case's
 background is necessary to understand the issues.
        Ronnie Lee Bowling's various cases arise from a crime spree in January
 and February 1989. During that time, he robbed and killed two men in Laurel
 County, also committing burglaries in the process. Shortly after the second
 murder, Bowling entered a gas station in Rockcastle County, where he shot the
 owner, attempting but failing to kill him. Police immediately chased Bowling,
 and he was quickly arrested. He was indicted for his crimes in both Laurel and
 Rockcastle Counties.

       The Laurel County case went to trial first, in 1992. Bowling was
 convicted on all counts and sentenced to death in December 1992. Both his
convictions and his sentence were affirmed by this Court in 1997. See Bowling
 v. Commonwealth,    942 S.W.2d 293, 297 (Ky. 1997). According to his
Department of Corrections Resident Record Card, 2 Bowling was remanded to
the custody of the Department of Corrections on December 9, 1992.
       The Rockcastle County charges did not go to trial until 1996, by which
time Bowling had been incarcerated for almost seven years. He was convicted
of attempted murder and sentenced to twenty years' imprisonment. Though the
court stated orally that this sentence would be served consecutively to any
other sentence, the written judgment was silent on that point, and thus the
sentence automatically ran concurrently with the 1992 sentence. See KRS
532.110(2); KRS 197.035(2). This Court affirmed this conviction and sentence


      2 A copy of this document, dated June 15, 2011, is attached to Bowling's brief.
The copy appears to have been filed with the district court on October 19, 2012.
                                           3
in Bowling v. Commonwealth, 96-SC-442-MR (October 15, 1998)
(unpublished), and the Court of Appeals later affirmed the denial of Bowling's
Criminal Rule 11.42 motion challenging his conviction, Bowling v.
Commonwealth, 2003-CA-002339-MR, 2005 WL 3116032 (Ky. App. Nov. 23,

2005).
      At the time of the Rockcastle County conviction, the circuit court was
required to give Bowling any so-called jail-time credit to which he was entitled.
See KRS 532.120(3) (1992) ("Time spent in custody prior to the commencement

of a sentence as a result of the charge that culminated in the sentence shall be
credited by the court imposing sentence toward service of the maximum term
of imprisonment."). Thus, the judgment in that case should have given Bowling
credit for the time he had served between his arrest and initial conviction. The
circuit court nevertheless awarded Bowling "0 days" of jail-time credit. That
judgment was not amended, and that aspect of the decision was not appealed.
Nonetheless, the Department of Corrections claims his sentence has been
running since his arrest in 1989.
      On September 12, 2012, Bowling filed a petition for habeas corpus in the
United States District Court for the Eastern District of Kentucky challenging
his conviction in the Rockcastle County case. For a federal district court to
have jurisdiction over a habeas petition in a given case made by a person
convicted in state court, however, the person must be "in custody pursuant to
the judgment of a State court." 28 U.S.C.A. § 2254.
      That jurisdiction exists as long as the petition was filed while the
petitioner was in custody under the challenged judgment, even if his sentence
                                       4
 expires before it can be decided. Maleng v. Cook, 490 U.S. 488, 490-91 (1989)
 ("We have interpreted the statutory language as requiring that the habeas
 petitioner be (in custody' under the conviction or sentence under attack at the
 time his petition is filed."). The petitioner's in-custody status must be related,
 in some way, to the conviction he challenges in the habeas petition. See
 Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979) ("p]urisdiction exists if

 there is a positive, demonstrable relationship between the prior conviction and
 the petitioner's present incarceration.").
       The fact that Bowling continues to be incarcerated under the Laurel
 County sentence does not affect the district court's jurisdiction: so long as he
was still serving his Rockcastle County sentence when he filed the petition, the
district court has jurisdiction to consider it. See Sciberras v. United States, 404
F.2d 247, 249 (10th Cir. 1968) (allowing habeas attack on "only one of two or
more concurrent ... sentences even though he would not be entitled to
immediate release if successful"); see also Benton v. Maryland, 395 U.S. 784,
791 (1969) (finding no jurisdictional bar under concurrent-sentence doctrine,
i.e., where there is another valid conviction that would leave defendant
incarcerated).
       On the other hand, if Bowling had completely served his sentence for the
Rockcastle County conviction, as the Department of Corrections claims, then
his present incarceration has no relationship with that conviction, because he
is in custody only for the murder convictions, and the district court has no
jurisdiction to consider his petition. See Mays v. Dinwiddie, 580 F.3d 1136,
1141 (10th Cir. 2009) (finding petitioner not to be in custody from expired
                                          5
 sentence that ran concurrently with another longer sentence); cf. Maleng, 490
 U.S. at 492 (holding petitioner not in custody on expired state conviction when
 later serving under federal conviction).
       For that reason, the district court undertook to determine whether
 Bowling was still in custody for the Rockcastle County conviction. The court
noted that the available authority appeared to conflict, comparing cases in
which this Court has stated that the "Executive Branch, in the form of the
Department of Corrections—not the judicial branch—is ultimately responsible
for determining when prisoners in its custody are eligible for release," Winstead
v. Commonwealth, 327 S.W.3d 479, 483 (Ky. 2010), with those in which this

Court has stated, under the statute then in effect, that "the responsibility to
credit a defendant for presentencing jail time belonged exclusively to the trial
court," Bard v. Commonwealth, 359 S.W.3d 1, 5 (Ky. 2012). If Bard controls,

Corrections' attempt to modify the award "was an invalid usurpation of the
power expressly granted to the trial court by KRS 532.120(3)." Id. at 5-6. The
district court also noted that the jail-time credit statute, KRS 532.120(3), was
amended in 2011 to assign to Corrections the task of giving custody credit to
inmates in most felony cases. Though the district court noted that Bard might
be distinguishable for various reasons, it nevertheless concluded that it was
"unclear" whether Corrections could correct Bowling's sentence and thereby
render him no longer in custody under the Rockcastle County conviction.
      Rather than attempt to resolve the seeming conflict in our cases, the
district court instead certified a pair of questions to this Court, as allowed by


                                            6
Civil Rule 76.37(1). 3 We accepted the certification, although we reformulated
the questions slightly, as laid out above, and agreed only to answer the
question as to what law applies.
                                       IL Analysis

      This case presents an odd twist in that Bowling does not want the jail-
time credit to which he is entitled because he wishes to challenge the
Rockcastle County conviction. He can only do so at this point by way of his
petition for habeas corpus, which, as noted above, requires that he be in
custody under that conviction. Bowling's unusual stance and the Department
of Corrections' apparent award of custody credit present the reverse of the
question in Bard, which dealt with the award of too much rather than too little
custody credit. Bowling has not been given too much credit on his Rockcastle
County sentence. The trial court sentencing order did not in fact give him any,
though he clearly was entitled to jail-time credit toward his sentence. The
essential question before us is whether Corrections may correct this error.
      As noted by the district court, our cases appear to be of two minds,
suggesting at times the supremacy of the executive branch in deciding
questions related to the service of a prison sentence, and at other times the

      3      rule states:
          That
      If there are involved in any proceeding before ... any District Court of the
      United States ... questions of law of this state which may be
      determinative of the cause then pending before the originating court and
      as to which it appears to the party or the originating court that there is
      no controlling precedent in the decisions of the Supreme Court and the     .



      Court of Appeals of this state, the Kentucky Supreme Court may answer
      those questions of law when certified to it by the originating court, or
      after judgment in the District Court upon petition of any party to the
      proceeding.
                                            7
 supremacy of the judicial branch in rendering the sentence and adjudicating
jail-time credit under KRS 532.120(3). But in some ways, the conflict suggested

by the district court is superficial.

       Cases like Winstead suggesting the supremacy of the executive branch in
determining when a prisoner is eligible for release do not appear to concern the
actual adjudication of a prisoner's sentence on the front end. In making such
broad statements, those cases appear to be addressing things like awarding
good-time credit or determining when a defendant is eligible for conditional
release, all of which occur on the back end, i.e., after sentence is pronounced
and its service begun. See Winstead, 327 S.W.3d at 483 n.6 (citing KRS
197.045, which authorizes Corrections to award service credits for good
conduct, etc., and KRS 196.070(1)(d), which requires Corrections to
IdJetermine minimum, maximum, and conditional release dates of prisoners in
accordance with KRS 197.045").
       But as even Winstead pointed out, the responsibility for awarding jail-

time credit was at that time statutorily lodged with the sentencing court.
Indeed, under the statutes then in effect, "the judicial branch [wals statutorily
required to award applicable jail-time credit to defendants." Id. at 483-84. 4
                    Winstead, the power to award jail-time credit fell to the Thus,evndr

courts, not the executive branch.



       4 Winstead went on to answer the question of what may be done when the court
errs by awarding too much or too little custody credit, holding that such errors must
be addressed on direct appeal, and could not be raised by a motion under CR 60.02.
Winstead, 327 S.W.3d at 488-89. That is why the custody-credit deficiency cannot be
corrected by a court at this point.
                                            8
        Rather than creating a clear conflict, this understanding dovetails with
 Bard, in which the defendant was mistakenly awarded too much jail-time

 credit. Corrections attempted to correct the problem several years down the
 line. As to whether this was proper, the decision was fairly clear: "No statutory
 authority or caselaw granted Corrections the power to set or modify
 presentencing custody credit." Bard, 359 S.W.3d at 5. Thus, "Corrections
 lacked the authority to correct the alleged error in ... presentencing custody
credit." Id. at 6.                                               /".




       These two cases outline two separate spheres of authority under the
previous version of KRS 532.120(3). The judiciary had the exclusive power over
the front end of the sentence, that is, the power to render the sentence and to
                                                             .




award custody credit against it. (The executive branch was bound by those
determinations in carrying out the sentence, as they were incorporated into a
binding judgment.) But the executive branch had exclusive power over the back
end of a sentence, that is, the power to award good-time credit, to parole, to
conditionally discharge a convicted person, or to otherwise determine when the
sentence had been served out or the person was otherwise entitled to release.
      By calculating Bowling's sentence as having run from 1989, under the
old statute, Corrections would be improperly exercising power over the front
end of the sentencing process and, in doing so, would be exceeding its
statutory authority and invading the exclusive province of the courts by
awarding Bowling jail-time credit for time spent incarcerated before his 1992
conviction. Under this reading, Bowling was not awarded custody credit by the
trial court, Corrections could not do so, and, as a result, Bowling was still
                                         9
 serving his twenty-year sentence for that conviction when he filed his habeas
motion.
       But, as the district court points out, the statute on this subject, KRS
532.120(3), has changed. In 2011, the statute was amended, see 2011
Kentucky Laws Ch. 2, § 98 (HB 463), so that Corrections now has the
responsibility for giving jail-time credit in most felony cases, 5 see KRS
532.120(3) ("Time spent in custody prior to the commencement of a sentence
as a result of the charge that culminated in the sentence shall be credited by
the Department of Corrections toward service of the maximum term of
imprisonment in cases involving a felony sentence and by the sentencing court
in all other cases."). Bard was aware of this change but noted that the new
"provision was not in effect at the time [the a]ppellant was sentenced or
reincarcerated." Bard, 359 S.W.3d at 4 n.3. For that reason, the Court applied
"the prior version of KRS 532.120(3) and the caselaw interpreting it." Id.
      That made sense in Bard because Corrections was trying to reduce the
amount of custody credit that had been awarded by the trial court. When that
award was made, the prior version of the statute was in effect, and the trial
court properly, albeit with a mistaken custody calculation, awarded custody
credit to the defendant in that case. That mistaken custody calculation was
incorporated into the trial court's judgment, which was not thereafter changed


       5 We say "most" because there is an exception for when "a presentence report
indicates that a defendant has accumulated sufficient sentencing credits under this
section to allow for an immediate discharge from confinement upon pronouncement of
sentence." KRS 532.120(8). In such a case, "the court may confirm the amount of the
credit and award the credit at pronouncement [of sentence]." Id. This provision was
also added to the statute in 2011. See 2011 Kentucky Laws Ch. 2, § 98 (HB 463).
                                          10
 or challenged. Thus, "Corrections lacked the authority to correct the alleged
 error in [the defendant's] presentencing custody credit," and "he thus
 remain[ed] entitled to the 3,086 days of presentencing custody credit awarded
 by the trial court." Id. at 6.
       This Court agrees that where a trial court has awarded jail-time credit
 under the prior version of the statute, Corrections cannot unilaterally reduce
 that award, even though it is now vested with the power to award such credit.
Instead, a mistaken award of too much credit must be corrected the same way
any erroneous judgment is to be corrected, e.g., through an appeal or, if
appropriate, a collateral attack.
       Nevertheless, under the new version of !CRS 532.120(3), Corrections has
the power (indeed, the responsibility) to credit "[t]ime spent in custody" toward
an inmate's sentence. That power is not limited to convictions obtained after
the statute was amended. And included in this power is a limited authority to
correct mistakes in failing to award jail-time credit or in awarding too little jail-
time credit. (Indeed, this is likely why the statute was amended, since th e
judicial remedies are so limited.)

      The simple fact is that Bowling was entitled, as a matter of law, to the
custody credit that he now wishes to decline. Though defendants can take
advantage of mistakes in their favor, as did the defendant in Bard, they cannot
decline correction of a mistake simply because the correction would not be in
their favor. Consider that if Bowling has served out his sentence, and was not
also incarcerated under a death sentence, he would be entitled to be released
from prison, which is generally viewed as a positive result. In , fact, Corrections
                                         11
 admitted as much in pleadings to the district court. If Corrections refused to
 release him, he could challenge that failure, likely (and ironically) in a habeas
 proceeding. lie could not decline the award, thereby staying in prison, even if
 he wanted to do so. 6
           Thus, the answer to the district court's certified question is that   Bard

 does not control Bowling's case to bar the Department of Corrections from
 awarding him jail-time credit to which he was legally entitled. Again, this is not
 to say that    Bard   does not continue to control under the circumstances
presented by that case, namely, where a trial court mistakenly awarded too
much credit when acting under the prior version of KRS 532.120(3). It means
only that     Bard   does not control where a trial court, acting under the prior
version of KRS 532.120(3), failed to grant the defendant all the credit to which
he was legally entitled.? In those circumstances, Corrections may act (and




        6 Though at first it seems absurd to think that a prisoner would want to stay in
prison, it is not difficult to imagine reasons why a long-serving inmate would want
 exactly that. Long-serving prisoners may become "institutionalized," in the sense of
becoming comfortable only in an institutional setting, and they often have limited
opportunities and face substantial challenges upon release that can be so
overwhelming as to make continued incarceration a preferred outcome. Though the
most prominent examples may be fictional, see The Shawshank Redemption (Castle
Rock Entertainment 1994) (portraying two characters, Brooks and Red, who
contemplate breaking parole to be sent back to prison "where things make sense" and
they "won't have to be afraid all the time"), there have been real-life instances, see
Jazmine Ulloa, Convict couldn't handle being free, San Antonio Express News (Sept.
25, 2011), http://www.mysanantonio.com/news/local_news/article/Convictcouldn-
thandlebeing-free-2187648.php (detailing story of Randall Lee Church, who committed
new crime "because he wanted to go back to his job at his former prison unit" in part
because he was overwhelmed by the social change that had occurred during his 26
years of incarceration).
       7 We do not address a situation where a trial court, acting under the new
statute, awards jail-time credit, even though it no longer has the statutory authority to
do so.
                                            12
 indeed, must act, because the statute states "shall") under the new version of
 KRS 532.120(3) to give the inmate all jail-time credit to which he is entitled.
                                  III. Conclusion

       In Bard v. Commonwealth, this Court concluded that the Department of
 Corrections could not modify a trial court's mistaken'award of too much jail-
time credit by reducing it where the award was made under a prior version of
KRS 532.120(3) giving the power to make such an award solely to the
sentencing court. Although that case is still valid, it does not control the
factual scenario presented by the district court's questions, namely, where a
trial court failed to award credit due to the defendant and Corrections attempts
to award the credit due. We conclude that under the present version of KRS
532.120(3), the Department of Corrections may award an inmate jail-time
credit that was mistakenly left off the judgment of conviction and sentence.
      The certified question of law is so answered.
      Minton, C.J.; Abramson, Cunningham, Keller, Noble, JJ., and Special
Justices John D. Seay and William G. Francis, sitting. Barber and Venters, JJ.,
not sitting. Minton, C.J.; Abramson, Cunningham, and Keller, JJ., and Special
Justice William G. Francis concur. Special Justice John D. Seay dissents by
separate opinion.

      SPECIAL JUSTICE JOHN D. SEAY DISSENTING: Respectfully, I dissent,
because I believe this court improvidently accepted certification. The
Rockcastle trial court correctly awarded Bowling zero days custody time credit.
Corrections did not recalculate Bowling's Rockcastle custody time credit.
Because Bowling is serving an aggregate Laurel and Rockcastle sentence of
                                        13
 death, he remains in custody on the aggregate sentence and should be
 permitted to proceed with his habeas action.
       In 1992, a Laurel jury convicted Bowling of two (2) counts of murder and
 four (4) other felony counts. The court sentenced him to death on both murder
 counts and to consecutive 20 year sentences on each of the felonies.
       In 1996, A Rockcastle jury convicted Bowling of one count of attempted
murder and the court sentenced him to serve 20 years. Pursuant to KRS
532.110 (2), Bowling is serving the Rockcastle sentence concurrently with the
Laurel sentence.

       When the Rockcastle trial court imposed its sentence, KRS 532.120 (1)
provided as follows:
      (1) An indeterminate sentence of imprisonment commences when
      the prisoner is received in an institution under the jurisdiction of
      the Department of Corrections. When a person is under more than
      one (1) indeterminate sentence, the sentences shall be calculated
      as follows:
      (a) If the sentences run concurrently, the maximum terms merge in
      and are satisfied by discharge of the term which has the longest
      unexpired time to run . . . .

      After the Rockcastle court entered its judgment, Bowling was in
Corrections' custody on multiple indictments. Pursuant to KRS 532.120 (1), the
Laurel and Rockcastle sentences merged into one "aggregate" sentence of
death. As Robert F. Belen (Offender Information Administrator, Department of
Corrections) stated in his letter to Bowling dated July 7, 2014 (Tab 6 of
movant's brief):
      "When an individual is placed in the custody of the KY DOC on
      multiple indictments, regardless of crime, felony class or sentence
      length, that individual is serving on an aggregate sentence. The KY
      DOC does not segregate the indictments to make individual
                                       14
          sentence calculations, nor is the KY DOC required to make
          hypothetical sentence calculations if a sentence was
          reverse/remanded or vacated. You are serving an aggregate
          sentence of death to which your Rockcastle 89CR0027 is running
          concurrent and will be satisfied upon the completion of your death
          sentence."
          The Department of Corrections Resident Record Card dated June 15,
2011 (Tab 7 of movant's brief) is consistent with KRS 532.120 (1) and Belen's
statement. In the block at the top of the page it states, "You have been
committed to the DOC to serve the following sentences." In the second block in
the middle of the page the table shows "Jail Credit" 1378 applied to "AA-001,"
Burglary, 1st Degree, 89 CR 024, Laurel, convicted date, 12/09/1992. Zero jail
credit is applied to the remaining convictions, including the Rockcastle
conviction. At the bottom of the table it shows "Total Sentence Length: Death."
      This is also consistent with Kentucky Corrections, Policies and
Procedures, Policy Number 28-01-08, "Calculation of Custody Time Credit,"
which states in pertinent part in Section II., A., 2., "Where multiple felony
indictments are involved any applicable credit shall be applied to the
indictment which is sentenced first." 8
      The Rockcastle court's final judgment reflects that court ordered a
Presentence Investigation Report (PSI) and gave it due consideration. This
court does not have Bowling's Rockcastle PSI, but if Probation and Parole
calculated his custody time credit according to applicable statutes and policy,
                                                                     ,




the PSI should have shown Bowling was entitled to zero days custody time
credit. This is because Corrections would have.already applied the entire

      8 Policy Number 28-01-08 became effective November 2, 2012, but the section
                                                                         ,



cited above represents no change from previous policy.
                                          15
custody time credit to the Laurel conviction, which was the "indictment which

is sentenced first."

      While the U.S. District Court found the Rockcastle court mistakenly

awarded Bowling zero days custody time credit, there appears to be no basis in

the record upon which the court could base that finding. It appears more likely

the Rockcastle trial court's award of zero days was correct, based upon

Corrections' likely initial calculation and applicable statutes and policies.

      The U.S. District Court also found Corrections "recalculated" Bowling's

custody time credit. There also appears to be no basis in the record upon

which the court could base that finding. Bard v. Commonwealth, 327 S.W. 3d

479 (Ky. 2010), has no relevance unless Corrections recalculated the custody

time credit.




                                        16
COUNSEL FOR MOVANT:
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite 1
LaGrange, Kentucky 40031

COUNSEL FOR RESPONDENT:
William Robert Long, Jr.
Assistant Attorney General
Office of Criminal appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601




                                 17
                oStiprrint      Olourf            7.firnfttritg
                               2014-SC-000235-CL


 RONNIE LEE BOWLING                                                        MOVANT


           UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF
                 KENTUCKY, SOUTHERN DIVISION LONDON
V.                    HONORABLE AMUL R. THAPAR,
                     UNITED STATES DISTRICT JUDGE
                          CIVIL NO. 12-A89-ART


RANDY WHITE (WARDEN, KENTUCKY
STATE PENITENTIARY)                                                RESPONDENT


     ORDER DENYING PETITION FOR REHEARING AND MODIFYING OF
                             OPINION

       The petition for rehearing filed by the movant of the Opinion of the Court

by Justice Noble, rendered on September 24, 2015, is denied and the Opinion

of the Court is modified by the substitution of the entire opinion as attached

hereto. The original opinion is modified by the deletion and addition of

language on pages 4, 8, 14 and 15. Said modifications do not affect the

holding of the original Opinion of the Court.

       Minton, C.J.; Cunningham, Hughes, Keller, and Noble, JJ., and Special

Justices John D. Seay and William G. Francis, sitting. All concur except

Special Justice John D. Seay who dissents. Venters and Wright, JJ., not

sitting.

       Entered: February 18, 2016.
