2005 Unpublished Court of Appeals Opinions Index

Table of Cases
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Mack v Com., 2004-CA-002564 -- Not To Be Published ; Affirming -- PDF

Reginald Mack brings this pro se appeal from a November 9, 2004, order of the Bell Circuit Court denying his Ky. R. Crim. P. (RCr) 11.42 motion to vacate the twenty-year sentence upon a jury verdict finding him guilty of robbery in the first degree. We affirm. Appellant was indicted.

Maffett v Com. ,2004-CA-002249 -- Not To Be Published ; Affirming in Part, Reversing in Part and Remanding -- PDF

On June 17, 2004, Mickea Goatee’s 1994 Buick LeSabre automobile was stolen from outside her apartment in Vandenberg County, Indiana. An officer came to the scene and took a statement, but apparently no report was made at that time. A few days later, Goatee spotted her Buick out on the roadway and again called the police, who filed a formal theft report.

Maggard v Com, 2004-CA-000363 --Not To Be Published ; Affirming -- PDF

Elmer C. Maggard appeals from an order of the Franklin Circuit Court affirming a final order of the appellee, Kentucky State Board of Examiners of Psychology (Board), suspending Maggard’s license for one year. For the reasons stated hereafter, we affirm.

Magolis v Com, 2003-CA-002076 -- Not Published ; Reversing in Part, Vacating in Part, and Remanding -- PDF

Frank Lawrence Magolis has appealed from a final judgment and sentence of the Grayson Circuit Court entered on September 4, 2003, pursuant to a conditional plea of guilty to the charges of manufacturing methamphetamine,1 possession of anhydrous ammonia in an unapproved container and for the purpose of manufacturing methamphetamine,2 wanton endangerment in the first degree,3 possession of marijuana,4 and possession of a controlled substance in the first degree (methamphetamine).5 Having concluded that to the extent the seizure of some evidence exceeded the scope of a limited consensual search or a constitutional warrantless safety search under exigent circumstances, the trial court erred in part by denying Magolis’s motion to suppress. Accordingly, we must reverse the trial court’s judgment in part and vacate it in part and remand this matter for additional findings.

Mann V Com, 2004-CA-000548--Not To Be Published; Affirming -- PDF

Appellant, Derek Mann (Mann), appeals the Russell Circuit Court verdict of guilty on the charge of Driving under the Influence, fourth offense, and Driving under the Influence with a suspended license, second offense. Mann also appeals the court’s denial of his motion for a new trial. We affirm the trial court’s rulings.

Mardis v Com., 2004-CA-000632 -- To Be Published ; Affirming -- PDF

Ronnie Mardis appeals from an order of the Marshall Circuit Court denying his motion to vacate judgment pursuant to CR1 60.02. The issue is whether Mardis should be granted relief from his conviction and 12-year sentence for manufacturing methamphetamine in light of the Kentucky Supreme Court’s later decision in Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003). We conclude that the trial court properly denied Mardis’s motion, and we thus affirm.

Marksberryv Com, 2003-CA-001688--Not To Be Published; Affirming -- PDF

Nathan Marksberry appeals from the order of the Grant Circuit Court denying his criminal post-conviction motions under Rule of Criminal Procedure (RCr) 11.42 and Rule of Civil Procedure (CR) 60.02. Marksberry argues on appeal that the court should have granted relief because his counsel was allegedly ineffective for failing to adequately consult with him about filing a direct appeal, citing Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). TheCommonwealth responds that these issues have either have or should have been litigated in prior post-conviction motions. We agree that these issues have already been litigated and affirm the judgment of the circuit court.

Markwell v Com, 2002-CA-002249--Not To Be Published;Affirming -- PDF

Donnie Markwell appeals pro se from orders of the Hopkins Circuit Court denying two motions seeking RCr 11.42 relief. For the reasons stated hereafter, we affirm.

Marquez v Com, 2003-CA-001431--Not To Be Published; Affirming -- PDF

Anthony Marquez appeals from the order of the Jefferson Circuit Court denying his motion for relief under Rule of Criminal Procedure (RCr) 11.42. Marquez argues that his attorney's performance was so ineffective as to effectively deprive him of his right to counsel, pointing to the cumulative effect of several claimed mistakes on the attorney's part. The circuit court held a hearing on this issue and concluded that Marquez was not entitled to relief. We agree that Marquez is not entitled to relief and affirm the decision of the circuit court.

Marshall v Com, 2004-CA-000029 -- Not To Be Published; Affirming -- PDF

Richard Allen Marshall, Jr. appeals from a jury verdict and judgment finding him guilty of second degree manslaughter and complicity to robbery first degree and sentencing him to fifteen (15) years’ imprisonment. Upon review, we affirm.

Marshall v Com, 2003-CA-002767 -- Not To Be Published ; Affirming -- PDF

Anthony Wayne Marshall appeals the order of the McCracken Circuit Court denying his motion pursuant to RCr 11.42 to vacate his conviction and sentence. He argues on appeal that the court should have appointed counsel for him and conducted an evidentiary hearing on his motion.

Marshall v Com., 2004-CA-000903 -- Not Published ; Vacating and Remanding -- PDF

Myree Marshall entered a conditional plea of guilty pursuant to RCr1 8.09, to one count of First Degree Trafficking in a Controlled Substance-Cocaine2, and to one count of Second Degree Persistent Felony Offender3. He was sentenced to ten years’ imprisonment on the trafficking count and fifteen years on the persistent felony offender count. The fifteen-year sentence was imposed in lieu of the ten-year sentence. He appeals from the order of the McCracken Circuit Court overruling his motion to suppress the introduction in evidence of a quantity of crack cocaine seized from his person after a pat-down search. We vacate and remand for further proceedings.

Martin v Com, 2003-CA-001183--Not To Be Published; Affirming -- PDF

Appellant, James E. Martin (Martin), Pro Se, has appealed from an order entered by the McCracken Circuit Court on May 16, 2003, denying his motion to vacate made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without appointing counsel or conducting an evidentiary hearing. Martin’s underlying claims relate to ineffective assistance of counsel in (1) failing to investigate and interview witnesses and to adequately prepare a defense, and (2) failing to file a motion to suppress the fruits (cocaine) of an illegal search. 2 He also claimed cumulative error. Having concluded that the circuit court properly denied Martin relief, we affirm.

Martin v. Com, 2004-CA-001288 -- Not To Be Published; Reversing and Remanding -- PDF

Orrill Martin appeals from an order of the Jefferson Circuit Court which denied his motion for postconviction relief filed pursuant to RCr2 11.42. He alleges that the trial court erred by concluding that he had received effective assistance of counsel. We affirm.

Martin v Com, 2004-CA-000622 -- Not Published ; Affirming -- PDF

Enoch Martin (Martin), pro se, brings this appeal from an Order of the Campbell Circuit Court, entered February 27, 2004, summarily overruling his motion, made pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) and (f),2 to set aside a "Judgment and Sentence on a Plea of Guilty,"

Matthews v Com, 2004-CA-000415 -- Not To Be Published; Affirming -- PDF

Shortly before midnight on June 26, 1996, Jimmy Matthews, who was drunk, drove a vehicle the wrong way on Interstate 65 in Jefferson County and caused an accident that, fortunately, did not kill anyone. As a result of the accident, Matthews, who had five prior felony convictions and various misdemeanor convictions including DUI offenses, was convicted and sentenced to 50 years in prison. The 50-year sentence was affirmed by the Kentucky Supreme Court on direct appeal, and Matthews filed a motion to vacate or set aside his convictions and sentences pursuant to RCr1 11.42. The circuit court denied the motion without granting an evidentiary hearing and without stating any reason for doing so. This appeal by Matthews followed.

Mays v Com., 2004-CA-001318 -- Not To Be Published ; Affirming -- PDF

Rodney Dewayne Mays has appealed from an order of the Clay Circuit Court entered on January 12, 2004, denying his motion for post-conviction relief pursuant to RCr1 11.42. Mays contends that he received ineffective assistance of counsel during his murder trial because trial counsel failed to object to testimony by Detective Mike Hopkins to the effect that he believed Anthony Simmons’s2 claim that Mays was the trigger-man in the murder and disbelieved Mays’s claim that Simmons was the trigger-man. Having concluded that Mays has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different even if trial counsel had objected to Detective Hopkins’s improper opinion testimony regarding which of the co-defendants was telling the truth, we affirm.

Mcbride v Com, 2003-CA-001843 -- Not Published ; Reversing -- PDF

This is an appeal from a felony conviction for failing to register as a sex offender as required by the Sex Offender Registration Act (KRS 17.510) when appellant moved from Tennessee to Kentucky. We adjudge that because appellant was not given notice of the duty to register as a sex offender in Kentucky as required by due process and KRS 17.510(6), the conviction cannot stand.1 Additionally, we hold that implicit in the statute is a mens rea element that appellant had to act knowingly. Hence, we adjudge that the trial court erred in refusing to include that culpable mental state in the jury instructions. Accordingly, the judgment of conviction is reversed.

McBride v Com, 2004-CA-000187 -- To Be Published ; Affirming -- PDF

Appellant, Jason McBride (McBride), appeals, Pro Se, the Butler Circuit Court’s denial of his motion to vacate, set aside, or correct the judgment against him. We affirm the denial.

McLevain v Com, 2004-CA-001510 -- Not to be Published ; Affirming -- PDF

Roger McLevain has directly appealed from the judgment and sentence entered June 28, 2004, by the Muhlenberg Circuit Court, based on the denial of his motion to suppress evidence seized as the result of a warrantless search, and the trial court’s denial of his motions for mistrial and a directed verdict of acquittal. Having concluded that the trial court did not err, we affirm.

McCormick v Com, 2003-CA-001767-mr -- Not Published ; Affirming In Part, Reversing In Part and Remanding - -- PDF

Damon McCormick appeals from a judgment entered by the Union Circuit Court. He asserts that the court abused its discretion by denying his motion to withdraw his guilty plea, and that the court erred by failing to hold a competency hearing given the court's knowledge of his history of mental illness. We affirm in part, reverse in part, and remand.

McDonald v Com, 2003-CA-002328 -- Not To Be Published; Affirming -- PDF

This is an appeal from a judgment entered by the Marshall Circuit Court after a jury convicted appellant Joel McDonald of cultivation of marijuana, trafficking in marijuana, and use of drug paraphernalia. McDonald contends that the trial court erred by failing to declare a mistrial after a witness testified that McDonald made an incriminating oral statement which was not provided to him during discovery, and by failing to conduct a suppression hearing after he challenged the validity of a search warrant. We disagree and therefore affirm.

McGuffin V Com., 2004-CA-000819 -- Not Published ; Affirming -- PDF

This is an appeal from the denial of appellant’s motion for RCr 11.42 relief from a judgment convicting him of first-degree assault for which he was sentenced to twenty years’ imprisonment. After conducting a hearing on the motion as directed by the Supreme Court of Kentucky in a previous appeal, the trial judge entered a thorough and well-reasoned opinion denying the requested relief. We affirm.

McIntosh v Com, 2004-CA-000674 -- Not Published ; Affirming -- PDF

Daryl McIntosh pled guilty to two counts of first-degree trafficking in a controlled substance and one count of possession of drug paraphernalia. The circuit court sentenced him to seven and a half years in prison for the charges. Approximately one year later, McIntosh filed a motion to alter, amend, or vacate his sentence under RCr 11.42; the motion was summarily denied by the circuit court. We agree with the circuit court’s decision and affirm.

McKenzie v Com, 2002-CA-001098 -- To Be Published; Reversing and Remanding -- PDF

Patrick D. McKenzie was convicted of third-degree burglary as an accomplice, enhanced by a finding that he is a persistent felony offender in the first degree. He appeals, arguing that the Commonwealth should not have been permitted at the end of trial to amend the indictment to add a complicity theory after he was indicted only as being the principal who committed the burglary. Because we believe that the addition of complicity to burglary in the third-degree prejudiced McKenzie’s substantial rights, we reverse and remand.

Meadows v Com, 2003-CA-002482 -- To Be Published ; Affirming -- PDF

Joey Meadows was charged with first-degree rape,2 first-degree unlawful imprisonment,3 and two counts of first-degree sodomy.4 A jury found him guilty of first-degree sexual abuse5 (a lesser included offense of first-degree rape), firstdegree unlawful imprisonment, and one count of first-degree sodomy. The jury found him not guilty of the remaining count of first-degree sodomy. Meadows then waived sentencing by the jury. The circuit court sentenced him to a maximum of fifteen years’ imprisonment.6

Meadows v Com, 2003-CA-002482 -- Published ; Affirming -- PDF

Joey Meadows was charged with first-degree rape,2 first-degree unlawful imprisonment,3 and two counts of first-degree sodomy.4 A jury found him guilty of first-degree sexual abuse5 (a lesser included offense of first-degree rape), firstdegree unlawful imprisonment, and one count of first-degree sodomy. The jury found him not guilty of the remaining count of first-degree sodomy. Meadows then waived sentencing by the jury. The circuit court sentenced him to a maximum of fifteen years’ imprisonment.6 Meadows brings a direct appeal of his judgment of conviction. He asserts three errors by the trial court: failing to instruct the jury on fourth-degree assault,7 allowing Dr. William Smock to testify as an expert witness regarding a bite mark on Meadows’s penis, and allowing Dr. Russell Compton to testify about T.H.’s account of the sexual assault and to give his expert opinion that T.H.’s injuries were consistent with her account. Finding no reversible error, we affirm.

Merrifield v Com, 2004-CA-000657 -- Not Published ; Affirming - -- PDF

Richard Scott Merrifield was convicted by a jury of various drug-related offenses, and sentenced to serve a total of ten years in priso n. On appeal, he claims that he was entitled to a mistrial because one of the jurors, who was dismissed as an alternate, failed to reveal during voir dire that he was acquainted with one of the witnesses and with Merrifield’s father. We affirm the judgment

Mezo v. Com, 2004-CA-001306 -- Not To Be Published; Affirming -- PDF

Appellant Michael Mezo (Mezo) brings this appeal as a matter of right from a judgment on a conditional guilty plea2 in the Union Circuit Court, entered on June 16, 2004, finding him guilty on four counts of third-degree burglary3 and one count of felony theft by unlawful taking4 and sentencing him to five years imprisonment on each count, to run concurrently for a total of five years and to run consecutively with any previous sentence.

Mickens v Com, 2003-CA-002303 -- Not Published ; Affirming in Part and Vacating and Remanding in Part - -- PDF

Michael Mickens (Mickens) brings this appeal from an opinion of the Jefferson Circuit Court, entered October 6, 2003, summarily denying his pro se motions for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, appointment of counsel and an evidentiary hearing. Before us, Mickens claims that he is entitled to an evidentiary hearing on four issues pertaining to ineffective assistance of counsel on his guilty plea. We affirm three issues that can be refuted from the face of the record.

Miller v Com, 2004-CA-000733 -- Not Published ; Affirming-- PDF

Frederick Miller appeals from the judgment of the Warren Circuit Court finding him guilty of failure to register as a sexual offender. Miller argues on appeal that he cannot be convicted of the charged offense because he was not properly informed of the duty to register and because he was required to register under the prior version of the statute,which fixes the penalty for failure to register as a class A misdemeanor. We disagree and affirm.

Mills v Com, 2004-CA-000926 -- Not Published ; Affirming In Part, Vacating In Part,And Remanding -- PDF

O.V. Mills appeals from two orders of the Knox Circuit Court denying his RCr1 11.42 motion to vacate his convictions and life sentence for the crimes of wanton murder and first-degree robbery. We affirm in part, vacate in part and remand.

Mills v Com., 2004-CA-001842 -- Not Published ; Affirming -- PDF

In July 2002, Terry Mills pled guilty in McCracken Circuit Court to, among other charges, manufacturing methamphetamine in violation of KRS 218A.1432(1)(b). He was sentenced as a first-degree persistent felon to twenty years in prison.1 At the time, KRS 218A.1432(1)(b) outlawed “knowingly and unlawfully . . . possess[ing] the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.” In June 2003, in Kotila v. Commonwealth,2 our Supreme Court held that 1432(1)(b)’s “possesses the chemicals or equipment” element required the Commonwealth to prove that the defendant possessed not merely some but either all the chemicals or all the equipment necessary to manufacture methamphetamine.3 In June 2004, Mills, who at the time of his arrest had possessed several but not all of the methamphetamine-making chemicals, moved pro se for relief under CR 60.02. He claimed that his guilty plea was not knowing and voluntary because counsel and the trial court misinformed him as to the nature of the alleged manufacturing crime, both having led him to believe, as was then widely accepted, that he might be convicted for possessing fewer than all of the chemicals. The trial court summarily denied Mills’s motion by order entered July 27, 2004, and it is from that denial that Mills has appealed. We affirm.

Milner v. Com, 2004-CA-000818 -- Not To Be Published; Affirming -- PDF

Craig Milner (Milner) brings this appeal from an “Opinion and Order” entered by the Fayette Circuit Court on April 19, 2004, overruling his “Motion to Enter an Order to Set Aside his Guilty Plea.” Before us, Milner argues that the trial court erred in failing to allow him to “withdraw his guilty plea” as it was involuntary, unintellingent, and not factually supported, due in part to ineffective assistance of counsel. We affirm.

Miranda v. Com, 2004-CA-000365 -- Not To Be Published; Affirming -- PDF

Roberto Ibarra Miranda (aka Roberto Chavel Padillo) has appealed from a final judgment and sentence of five years’ imprisonment entered by the Fayette Circuit Court on February 3, 2004, upon his entry of a conditional plea of guilty to one amended count of possession of a controlled substance in the first degree.1 After the trial court denied Miranda’s motion to suppress, he entered a conditional guilty plea, reserving the right to appeal the suppression ruling. Having concluded that the trial court’s factual findings were supported by substantial evidence and its ruling was correct as a matter of law, we affirm.

Moffitt v. Com, 2004-CA-000825 -- Not To Be Published; Affirming -- PDF

Under KRS 431.076, a person who has been found not guilty of a crime may petition the court for expungement of the record. The statute permits expungement at the discretion of the court. Under the circumstances presented in this appeal, we hold that the Livingston Circuit Court did not abuse its discretion and therefore affirm.

Moon v Com., 2004-CA-001624 -- Not to be Published ; Affirming -- PDF

Rickey R. Moon brings this pro se appeal from a June 17, 2004, Order of the Jefferson Circuit Court denying his Ky. R. Civ. P. (CR) 60.03, CR 61.02, Ky. R. Crim. P. (RCr) 6.10(3), and RCr 6.12 motion to vacate sentence. We affirm.

Moore v Com, 2004-CA-000911 -- Not Published ; Reversing and Remanding - -- PDF

Appellant, John P. Moore (Moore), appeals his conviction for three counts of theft by failure to make required disposition in the Hopkins Circuit Court. We reverse the circuit court’s denial of a request for mistrial based on improper pretrial publicity of a prosecutor’s unrelated claims about the Appellant.

Morgan v Com, 2004-CA-001204 --To be Published ; Affirming -- PDF

Christy C. Morgan has appealed from the judgment of conviction and sentence entered by the Hart Circuit Court on June 15, 2004, following her conditional plea of guilty to the charge of possession of a controlled substance in the first degree (methamphetamine).1 Having concluded that the trial court’s findings of fact in support of its order denying Morgan’s motion to suppress evidence are supported by substantial evidence and that its application of the law those facts is correct as a matter of law, we affirm.

Morgan v Com, 2004-CA-001681 --Not To be Published ; Reversing and Remanding -- PDF

Christy Morgan appeals the denial of her motion to suppress evidence following a police stop. Following a hearing, the court denied the motion and entered findings of fact and conclusions of law. Morgan subsequently entered a conditional guilty plea pursuant to RCr 8.09 to complicity to trafficking in a controlled substance in the first degree, complicity to possession of a controlled substance in the first degree, complicity to possession of drug paraphernalia, and two counts of complicity to trafficking in a controlled substance in the third degree. Morgan had been charged with acting in complicity with co-defendant Guy Evans, who was also involved in the stop. Morgan argues on appeal that the police were not justified in stopping the vehicle in which she was a passenger, and so the evidence should have been suppressed. We agree, and reverse and remand.

Morris v Com, 2003-CA-001599--Not To Be Published; Reversing and Remanding -- PDF

Appellant Norbert Eddie Morris entered a conditional plea of guilty, pursuant to RCr 8.09, to trafficking in a controlled substance in the third degree. His plea was conditioned on his right to appeal on the basis that his prosecution constituted double jeopardy.Appellant was indicted on August 13, 2001, for trafficking in a controlled substance in or near a school. The charge was amended to trafficking in a controlled substance in -2- the third degree. On January 22, 2002, the case was called for jury trial.waived in his direct appeal. We agree with the circuit court’s conclusion that Smith’s arguments were not proper for RCr 11.42 relief, and we affirm the circuit court’s decision even though it erroneously found Smith’s motion to be untimely.

Morris v Com, 2003-CA-000795 --Not To Be Published ; Vacating and Remanding -- PDF

LaShoan Morris appeals his conviction in the Jefferson Circuit Court. At trial it was established that Morris was an inmate at the Community Corrections Center in Louisville, and had been released on daytime work release. Upon his return to the facility on December 21, 2001, marijuana was found on Morris and he was involved in an altercation with a deputy in the corrections center. During the struggle with the deputy, the deputy’s knee was injured.

Morrison v Com, 2003-CA-002772--Not To Be Published; Affirming -- PDF

This is an appeal from a judgment pursuant to a guilty plea entered after the guilt phase of a jury trial. Appellant argues that his plea should have been allowed to be withdrawn because he was not apprised of the significance of a juror falling ill during the guilt phase of his trial. Because appellant’s plea was entered voluntarily, knowingly, and intelligently, the trial court did not abuse its discretion in denying appellant’s motion to withdraw his plea. We also reject appellant’s argument that the trial court erred in imposing the fine in this case. Hence, we affirm.

Morrow v Com, 2004-CA-000856 -- Not Published ; Affirming - -- PDF

Richard T. Morrow appeals from an April 21, 2004, final judgment of the Pulaski Circuit Court entered upon a jury verdict finding him guilty of robbery in the first degree and sentencing him to thirteen years’ imprisonment. We affirm.

Mullins v Com, 2003-CA-002483--Not To Be Published; Affirming -- PDF

Timothy E. Mullins has appealed, pro se, the order of the Boyd Circuit Court entered on November 4, 2003, denying his CR1 60.02 motion to vacate his sentence pursuant to judgment entered May 10, 1996. Mullins raises several grounds to this Court in support of his motion, but none justifies the extraordinary relief requested. Further, too much time has elapsed since judgment was entered against Mullins for him to raise issues through CR 60.02. Having concluded that the trial court did not abuse its discretion by denying Mullins relief, we affirm.

Myers v Com, 2004-CA-001323 -- Not Published ; Affirming - -- PDF

On December 7, 1996, Jody Green was repeatedly beaten, taken to a remote area without shoes or a coat, and left to die. His frozen body was found the following morning near the Cumberland River. Robert Myers, Carey Bowles, and Roxanne Reiling were indicted for causing Green’s death. Reiling entered a plea of guilty to facilitation to murder; she received a three year sentence and testified versus Bowles and Myers. The latter two, who had claimed they were acting to protect Reiling from Green, were convicted of wanton murder .
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