2005 Unpublished Court of Appeals Opinions Index

Table of Cases
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Farmer v Com, 2004-CA-000865 -- To be Published ; Affirming -- PDF

This is an appeal from a judgment pursuant to a conditional guilty plea to two counts of second-degree assault stemming from an automobile collision. Appellant argues that the toxicology results of a blood/urine test should have been suppressed because he only gave his consent to have his blood tested for alcohol, not controlled substances, pursuant to a consent form presented to him at the hospital. We adjudge that appellant’s initial general consent to police was not limited by -2- the consent form subsequently submitted to appellant by the hospital. Accordingly, the trial court properly found that appellant consented to the drug testing of his blood and urine. Thus, we affirm.

Fennell v Com, 2004-CA-000319 -- Not To Be Published; Affirming -- PDF

Thomas Fennell appeals from an order of the Jefferson Circuit Court denying his request for post-conviction relief pursuant to Kentucky Rule of Civil Procedure (CR) 60.02. Fennell argues that he has already served the maximum sentence allowed by law and that the trial court erred in denying his motion without appointing counsel. We disagree with both contentions and find that the trial court correctly concluded that Fennell’s CR 60.02 motion was untimely.

Ferguson v Com. ,2004-CA-002211 -- Not To Be Published ; Affirming -- PDF

On September 21, 2002, a security guard in a Kroger store observed Jamie C. Ferguson conceal on his person several boxes of generic pseudoephedrine. When the guard approached Ferguson, the latter threw the boxes at the guard and attempted to flee. A scuffle ensued, during which Ferguson injured the guard. Ferguson ultimately admitted to his attempt to steal those pills as well as over 300 from a nearby Walgreen’s store; he stated that he used them to manufacture methamphetamine.

F.F.Z. A Child v Com.,2005-CA-000785 -- Not To Be Published ; Affirming -- PDF

Z.Z.F, a child, appeals from a February 21, 2005, order of the Pendleton Family Court which revoked his probation and committed him to the Cabinet for Health and Family Services (CHFS) for placement in a residential treatment facility. Z.Z.F argues that the court failed to make sufficient findings to warrant detention. We find any error to be unpreserved, and that Z.Z.F was not prejudiced by the family court’s failure to make specific findings. Hence, we affirm.

Fletcher v Judge Graham, ,2005-CA-002357 -- To Be Published ; OPINION AND ORDER DENYING CR 76.36 RELIEF -- PDF

In May 2005, upon the motion of the Attorney General, the Franklin Circuit Court empanelled a special grand jury to investigate whistle-blower allegations that officials in the administration of Governor Ernie Fletcher had violated provisions of Kentucky Revised Statutes (KRS) Chapter 18A, the classified service statutes commonly referred to as the merit system.1 During the following months, the grand jury issued numerous indictments. For the most part, the indictments alleged misdemeanor violations of the merit-system laws, but they included allegations of felonies having to do with evidence and witness tampering. In response to the mounting charges, on August 29, 2005, Governor Fletcher issued Executive Order 2005-924 whereby he sought to pardon, fully and unconditionally, nine individuals indicted by the grand jury as well as “any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation being conducted by the special grand jury presently sitting in Franklin County.”

Foister v Com.,2004-CA-002409 -- Not To Be Published ; Affirming -- PDF

Doyle W. Foister appeals from a judgment of the Bell Circuit Court reflecting a jury verdict finding Foister guilty of one count of possession of a handgun by a convicted felon. Foister argues on appeal that the trial judge erred in denying Foister’s motion for a directed verdict. He also contends that palpable error resulted when the trial judge and the prosecutor referred to other charges and unrelated past convictions. For the reasons stated below, we affirm the judgment on appeal.

Ford, 2004-CA-000093 -- Not To Be Published; Affirming -- PDF

This is an appeal from an order entered by the Laurel Circuit Court denying appellant Michael T. Ford’s motion seeking CR 60.02(a) relief from a judgment of conviction. For the reasons stated hereafter, we affirm.

Forjone v Com, 2004-CA-001038 -- Not to be Published ; Affirming - -- PDF

Rickey Forjone appeals from the judgment of the Clark Circuit Court finding him guilty of robbery in the first degree. Forjone argues on appeal that comments made by the prosecutor during closing arguments deprived him of a fair trial. We disagree and affirm.

Foster v Com, 2004-CA-001473 -- Not Published ; Affirming - -- PDF

This is an appeal from an order denying appellant’s RCr 11.42 motion alleging ineffective assistance of counsel on his guilty plea and that his plea was not entered voluntarily. The record before us refutes all claims of ineffective assistance of counsel and involuntariness of the plea. Hence, we affirm.

Frailey v Com, 2004-CA-000608 -- Not Published ; Vacating and Remanding -- PDF

Lowell Frailey, Jr. brings this appeal from a March 23, 2004, judgment upon a jury verdict finding him guilty of first-degree burglary and sentencing him to ten years’ imprisonment. We vacate and remand.

Frailey v Com, 2004-CA-000608 -- Not Published ; Vacating and Remanding - -- PDF

Lowell Frailey, Jr. brings this appeal from a March 23, 2004, judgment upon a jury verdict finding him guilty of first-degree burglary and sentencing him to ten years’ imprisonment. We vacate and remand

Franklin v Com, 2003-CA-000811--Not To Be Published; Affirming -- PDF

Franklin D. Franklin has appealed from the judgment and sentence of the Bourbon Circuit Court entered on January 24, 2003, following a bench trial, finding him guilty of receiving stolen property valued at $300.00 or more1 and sentencing him to a term of imprisonment of one year, probated for three years. Having concluded that it was not clearly unreasonable for the trial court to find Franklin guilty, we affirm.

Franklin v Com, 2003-CA-001929 -- Not Published ; Opinion and Order Dismissing -- PDF

Ralph Franklin, Jr., pro se, has appealed from an order of the Jefferson Circuit Court entered on July 10, 2003, which denied Franklin’s motion for summary judgment, granted Bobbie Holsclaw’s motion for summary judgment, and dismissed the complaint with respect to the Jefferson County Property Valuation Administrator. Having concluded that the order appealed from is not a final and appealable judgment whereby this Court lacks jurisdiction to decide the issues presented, we dismiss this appeal.

Fraser v Com.,2004-CA-000917 -- Not Published ; Affirming -- PDF

This is the second time Robert Fraser (Robert) has been before this Court after the Pike Circuit Court’s denial of relief under RCr 11.42 from his guilty plea. The first time, the circuit court denied the motion without an evidentiary hearing, and a panel of this Court affirmed. In Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), however, the Kentucky Supreme Court held that Robert was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. So the Fraser court remanded the case to the circuit court for a hearing. The circuit court conducted the hearing on April 7, 2003, but ultimately denied Robert’s motion for relief. Because we conclude that (1) the trial court’s factual findings are not clearly erroneous and (2) counsel’s performance was not deficient, we affirm.

Fulkerson v Com, 2004-CA-000228 -- Not Published ; Affirming -- PDF

Carl Timothy Fulkerson was tried by a McLean County jury and found guilty of first degree possession of a controlled substance (methamphetamine) while in possession of a firearm. In this direct appeal of that judgment, Fulkerson alleges that errors occurred in the evidence introduced at trial which require that his judgment of conviction be set aside. We affirm the judgment below.

Fuston v Com, 2003-CA-002434 -- Not Published ; Reversing -- PDF

John R. Fuston brings this appeal from an October 17, 2003, judgment of the Bell Circuit Court convicting him upon two counts of criminal possession of a forged instrument in the second degree and sentencing him to four years’ imprisonment. We are compelled to conclude that the trial court abused its discretion by failing to excuse Juror No. 48 for cause and thus we reverse.
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