2004 Unpublished Court of Appeals Opinions Index |
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Dadbin v. Com., 2003-CA-000262-Not To Be Published;
Affirming -- PDF
Dalton v Com, 2003-CA-001528 -- Not To Be Published;
Vacating and Remanding -- PDF Daniel v. Com, 2002-CA-002428-MR -- Not Published;
Affirming -- PDF
Daniels V Com, /2003-CA-002253-MR Not To Be Published; Reversing and Remanding -- PDF
Dansby V Com, /2003-CA-002578-MR Not To Be Published; Affirming -- PDF
Darnell V Com, /2003-CA-002578-MR Not To Be Published; Affirming -- PDF
David v. Com., 2003-CA-001638-MR-- Not Published;
2003-CA-000855-MR Reversing and Remanding -- PDF
Davis v. Com., 2003-CA-000497-MR-- Not Published;
2003-CA-000855-MR Affirming In Part And Reversing In Part -- PDF
Davis v. Com., 2001-CA-002682 -- Not Published;
Affirming in Part, Vacating and Remanding in Part -- PDF
Day v. Com, 2003-CA-001385 --To Be Published;
Affirming -- PDF
Deatley v. Com., 2002-CA-000230 Not To Be Published;
Affirming -- PDF
Dees V Com, 2003-CA-001883--Not To Be Published;
Affirming In Part, Vacating In Part And Remanding -- PDF
Dees v. Com, /2003-CA-001737--Not To Be Published;
Affirming -- PDF
Dennis v. Com, 2002-CA-002176-MR-- Published;
Affirming -- PDF
Denniston Inc v. Com. Transportation Cabinet And Dept of Highways, 2003-CA-000294- Not Published;
Affirming -- PDF
Denton V Com, /2002-CA-001042-MR Not To Be Published; Affirming -- PDF
Derosa v. Com., 2001-CA-002540 Not Published;
Reversing -- PDF
Dishman v. Com., 1999-CA-000454 & 1999-CA-001096 Not Published;
Affirming -- PDF
Dixon v. Com., 2002-CA-000014 Not To Be Published;
Affirming -- PDF
Dixon v. Com., 2002-CA-002438-- Not Published;
Affirming -- PDF
Domino V Com,2003-CA-000402-Not To Be Published;
Affirming in Part, And Reversing in Part -- PDF
Donathan V Com,2003-CA-001960-Not To Be Published;
Affirming -- PDF
Doublin V Com,2003-CA-002583--Not To Be Published;
Reversing and Remanding -- PDF
Draper v. Com., 2003-CA-000833-- Not Published;
Affirming -- PDF
Dubose v. Com., 2001-CA-002087 Not Published;
Affirming -- PDF
Dunn V Com, 2003-CA-002553--Not To Be Published;
Affirming -- PDF
Durbin V Com, 2003-CA-001258-MR-- Not Published;
2003-CA-000855-MR Affirming-MR -- PDF
Durham v. Com., 1999-CA-002631 Not Published;
Affirming -- PDF Dyer v Com, 2003-CA-001143 --Not To Be Published;
Affirming-- PDF
Amir Dadbin (hereinafter appellant) appeals
from a judgment of the Warren Circuit Court following his
conditional guilty plea to trafficking in marijuana, five pounds
or more, and possession of drug paraphernalia. On appeal,
appellant argues that the trial court erred in denying his
motion to suppress evidence. Finding no error, we affirm.
Following a jury trial, Dormus Dalton, Jr.,
(hereinafter appellant) was convicted in the Pulaski Circuit
Court of one count of rape in the first degree. J.B.,
appellant’s niece by marriage, accused appellant of having sex
with her against her will when she was 15 years old. Appellant
was charged in the indictment with rape in the first degree by
forcible compulsion.
Jimmy Daniel appeals from an order of the
Martin Circuit Court denying his RCr2 11.42 motion. We affirm.
After a jury trial in the Martin Circuit Court in
December 1993, Daniel was convicted of two counts of first-degree rape and was sentenced to 60 years in prison. The
judgment was reversed and remanded for a new trial by the
Kentucky Supreme Court.
Mark Allen Daniels appeals, pro se, from an
Order of the Metcalfe Circuit Court dismissing his Petition for
Declaratory Judgment and Demand for Jury Trial, requesting that
his ten year sentence on a guilty plea to first degree robbery1
be vacated due to a violation of his state and federal constitutional
due process and equal protection rights, on the basis that the circuit court lost jurisdiction under KRS 640.0302 to
sentence him. Because we conclude that Daniels is entitled to
an evidentiary hearing, we reverse the circuit court’s order
dismissing the petition and remand for a hearing.
Troy Zandale Dansby appeals his conviction for
possession of cocaine, possession of marijuana and of being a
persistent felony offender, second degree. Dansby contends that
the drugs recovered from his vehicle following his arrest should
have been suppressed. We disagree and affirm the final judgment
and sentence of imprisonment entered by the Fayette Circuit
Court on November 5, 2003.
The single question in this appeal is
whether the trial court erred in refusing to allow appellant to
withdraw his plea of guilty to second-degree sodomy and to being
a persistent felon in the second degree. Because we agree with
the trial court that the totality of the circumstances
surrounding the entry of the plea confirm that it was the product of a knowing and voluntary waiver, we affirm the denial
of appellant’s motion to withdraw the plea.
Kenneth David appeals from the order of the
Boone Circuit Court revoking his conditional discharge for
several counts of theft relating to dishonored checks written to
the Kentucky Revenue Cabinet for taxes owed. David agreed to
plead guilty to eight misdemeanor counts, for which he received
a sentence of twelve months conditionally discharged for two
years. A month after the expiration of the two-year period, the
Commonwealth sought revocation of his conditional discharge for
failure to pay restitution. David argues on appeal that the court lacked jurisdiction to revoke his conditional discharge
because the two-year period expired before the Commonwealth
sought revocation. We agree and reverse.
Charles Davis has appealed from a final
judgment and sentence of the Franklin Circuit Court entered on
February 11, 2003, which found Davis guilty on two counts of
trafficking in a controlled substance in the first degree 1 and on
one count of criminal attempt to commit trafficking in a
controlled substance in the first degree,2 and sentenced him to
Sherman Dejuan Davis (Davis) appeals the
Jefferson Circuit Court’s denial of his RCr 11.42 motion
alleging ineffective assistance of counsel. Because we believe
there is a material issue of fact that cannot be determined on
the face of the record, we affirm in part and vacate and remand
in part for an evidentiary hearing.
This is an appeal from a judgment entered by
the Kenton Circuit Court after a jury found Doug Day guilty of
rape in the first degree. The primary issue on appeal concerns
the adequacy of the jury instructions. Day argues that the
trial court erred in refusing to instruct the jurors that they
had to find beyond a reasonable doubt that the victim did not
consent to sexual intercourse. He also argues that the trial
court erred in failing to give an instruction regarding the lesser-included offense of sexual abuse. Day’s other claims are
that he was denied a fair trial when the Commonwealth failed to
establish the chain of custody for a pair of the victim’s shorts
that were introduced into evidence, and that the trial court
erred in failing to grant his motions for a directed verdict.
We affirm.
Harold R. Deatley, Jr., appeals from a
judgment entered by the Mason Circuit Court on January 9, 2002,
following his conditional plea of guilty to the charges of
trafficking in marijuana more than eight ounces but less than
five pounds 1 , driving while under the influence 2 , refusal to take an alcohol/substance test 3 and trafficking in a controlled
substance within one thousand (1,000) yards of a school 4 .On
appeal, Deatley argues that the trial court erred in denying his
motion to suppress evidence. Finding no error, we affirm.
Derek Dees,1 who is serving up to twenty years’
confinement by virtue of a guilty plea and the judgment rendered
in this case, appeals from the denial his RCr2 11.42 motion to
set that judgment aside. The record itself refuted most of
Dees’s assertions, and we uphold the trial court’s denial on
those issues without an evidentiary hearing. But we hold that
Dees was entitled to an evidentiary hearing on the issue of whether he pled guilty relying upon allegedly incorrect parole
eligibility information given to him by trial counsel.
Roscoe Dees has appealed from an order of the
Fayette Circuit Court entered on August 1, 2003, which denied,
without holding an evidentiary hearing, Dees’s motion to vacate,
set aside, or correct judgment brought pursuant to RCr1 11.42.
Dees’s motion alleged ineffective assistance of counsel
associated with his conditional guilty plea to possession of
1 Kentucky Rules of Criminal Procedure.
This is an appeal from the Menifee Circuit
Court’s judgment and sentence after appellant David Dennis
entered a conditional guilty plea to three counts of incest.
Appellant contends that the trial court erred in not granting
his motion to dismiss the indictment against him. We affirm.
Mike Denniston, Inc. (“Denniston”) appeals from a
judgment entered by the Franklin Circuit Court adjudicating a
dispute that involved several service contracts awarded to
Denniston by the Commonwealth of Kentucky, Transportation
Cabinet, Department of Highways. Dennison claims that the court
erred by concluding that it was not entitled to compensation.
>
Charles Denton (hereinafter appellant) appeals
the denial of his RCr 11.42 motion to vacate, set aside or
correct his sentence pursuant to RCr 11.42. Appellant was
charged with a murder and robbery committed on December 1, 2000,
when appellant was under eighteen years of age. The Jessamine
District Court, Juvenile Division, found probable cause that
appellant had committed the felony offenses, that he had used a
firearm in the commission of the offenses, and that he was fourteen years of age or older at the time of the offenses, and
so ordered that the charges be referred to the Jessamine Circuit
Court pursuant to KRS 635.020 and KRS 640.010.
Appellant, Edward Derosa (Derosa), appeals an
order permitting forfeiture of currency confiscated when he was
arrested on charges of possession of an illegal drug. We
reverse the forfeiture order.
Derosa was found in a vehicle with prescription
medications on his person.
Dickerson v. Com, 2003-CA-002252 -- Not Published;
Affirming -- PDF
Appellant Kerry L. Dickerson (Dickerson)
brings this appeal from a judgment on a plea of guilty and
sentence of probation entered September 24, 2003 in the
Jefferson Circuit Court. The question presented concerns the
trial court’s denial of Dickerson’s motion to suppress on two
grounds. First, Dickerson argues that the trial court
improperly failed to suppress statements made by him and his
girlfriend, Stacy King, while both were detained during the search of 233 Cecil Avenue pursuant to a valid warrant. Second,
Dickerson argues that the trial court improperly failed to
suppress the fruits (crack cocaine, digital scales and $13,000)
of the search of 337 South Shawnee Terrace. Having concluded
that the trial court properly denied the suppression motion, we
affirm.
In these consolidated appeals, Karen Dishman
(Dishman) appeals the Fayette Circuit Court’s denial of her
motions for relief under RCr 11.42 and for prerelease probation
under KRS 439.575. Finding no error, we affirm.
JUDGE: Michael Todd Dixon pled guilty in the McCracken
Circuit Court to two counts of first-degree possession of a
controlled substance and one count of possession of drug paraphernalia. The circuit court sentenced him in accordance
with a plea bargain agreement to a maximum sentence of five
years, which the court probated for three years and ordered
Dixon to forfeit the cocaine, drug paraphernalia, and cash
seized when he was arrested.
Mark Keith Dixon was convicted by a jury
of first-degree burglary. He pleaded guilty to first-degree
assault and assault under extreme emotional disturbance. On May
4, 2001, he was sentenced on all charges and received fifteen
years on the burglary conviction, ten years’ imprisonment for
the first-degree assault conviction, and one year for the
assault under extreme emotional disturbance conviction.
his is a direct appeal by Mark Domino, who was
convicted of three counts of terroristic threatening after a
jury determined he had threatened to kill his ex-girlfriend,
Billie Core, and Core’s two children. He was sentenced to
twelve-months’ confinement and assessed a $500 fine for each
count, with the sentences to run concurrently. His arguments
include denial of a speedy trial, ineffective assistance of
counsel, prosecutorial misconduct, judicial bias, and prejudicial introduction of irrelevant evidence. We believe
these arguments are either moot or without merit, so we affirm.
But because we agree that Domino was indigent and should not be
required to pay the fines assessed against him, we reverse
solely on that issue.
Under Terry v Ohio,1 a warrantless stop of an
automobile is permissible if an officer has a “reasonable and
articulable suspicion” of criminal activity. We are asked to
decided whether a police officer’s observation of a late night
purchase of an item commonly used in the manufacture of
methamphetamine, together with the purchaser’s actions when
leaving the store, justified a subsequent stop of the
automobile. We hold that under the circumstances of this case.
The Commonwealth appeals from an order of the
Calloway Circuit Court, entered November 21, 2003, granting
James Doublin’s motion to suppress evidence derived from a
search of his pickup truck. The Commonwealth contends that the
warrantless search was lawful because it was incident to the
arrest of an occupant of the truck. We agree and so reverse and
remand for additional proceedings.
Keith Draper appeals from the judgment of the
Jefferson Circuit Court in which he was convicted of the
misdemeanor offenses of wanton endangerment in the second
degree, carrying a concealed deadly weapon, and resisting
arrest. He argues that the evidence was insufficient to sustain
the convictions and that the trial court erred in denying his
motion for a directed verdict of acquittal.
Gregory Dubose appeals the denial of his motion
for additional jail time credit. He argues that he should be
entitled to additional credit for 120 days spent in jail, as
well as time spent in a home incarceration program.
Michelle Dunn (“Dunn”) appeals from an order
of the Knox Circuit Court denying her motion for RCr 11.42
relief and an evidentiary hearing. She argues that she was
denied effective assistance of counsel due to counsel’s improper
advice regarding designation as a violent offender, sentence and
parole eligibility, and other collateral issues. For the
reasons stated herein, we affirm the order on appeal.
Dunn v. Com, 2002-CA-000742-MR -- Not Published;
Affirming -- PDF
Appellant, James Mark Dunn, appeals from an
order of the Garrard Circuit Court summarily denying his RCr
11.42 motion.
In 1995, Appellant and Eric Gill were indicted for
murder and first-degree robbery for the death of Bradley
Johnson. At trial both were convicted of the charges and
sentenced to life without the possibility of parole for a
minimum of 25 years for murder and 20 years for robbery in the first degree.
Shirley Durbin appeals from a judgment of the
Henderson Circuit Court convicting him of first-degree, second-degree,
and third-degree sodomy and first-degree, second-degree
(three counts), third-degree sexual abuse. Durbin entered a
conditional guilty plea to these charges after the trial court
denied his motion to find that they constituted double jeopardy
due to prosecution in federal court for charges arising out of
the same incident. We hold that the trial court correctly
In 1997 Patricia Durham was indicted for Assault
in the First Degree after she ran over her nephew in her car.
At trial Durham testified that she intentionally assaulted the
victim because she feared that he would shoot her or her
boyfriend.
Kenner Dyer appeals from a jury verdict
finding him guilty of assault in the fourth degree and violation
of a domestic violence order. He was sentenced to twelve months
and a $500 fine on each count. Dyer's appointed counsel on
appeal filed an Anders brief1 in support of his motion to
withdraw. In the brief, appellate counsel stated that no matter
was raised or otherwise preserved by motion from which to base
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