2005 Unpublished Court of Appeals Opinions Index

Table of Cases
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Padgett (Now Hatfield) v Com., 2004-CA-001943 -- Not Published ;Affirming -- PDF

Amy Padgett (now Hatfield) appeals from an April 30, 2004 order of the Meade Circuit Court denying her motion for CR2 60.02 relief. Finding no error, we affirm.

Padgett (Now Hatfield) v Com.,2004-CA-001943 -- Not To Be Published ; Affirming -- PDF

Amy Padgett (now Hatfield) appeals from an April 30, 2004 order of the Meade Circuit Court denying her motion for CR2 60.02 relief. Finding no error, we affirm.

Parton v Com, 2004-CA-000350 -- Not To Be Published;Affirming -- PDF

Tina Marie Parton brings this appeal from the Jefferson Circuit Court’s denial of her RCr2 11.42 motion and motion for an evidentiary hearing. The court ruled without an evidentiary hearing that Parton did not meet her burden of proof in establishing that trial counsel was ineffective. We find no error in the court’s order and affirm.

Parrigin v Com, 2003-CA-001787 -- Not Published ; Affirming - -- PDF

Harold Parrigin appeals from a judgment of the Clinton Circuit Court convicting him of flagrant nonsupport and sentencing him to four years’ imprisonment. He argues that the trial court abused its discretion in denying him a continuance on the day of trial, that the Commonwealth made inflammatory comments during the sentencing phase of the trial, and that the trial court admitted irrelevant and prejudicial evidence in both the guilt and sentencing phases of the trial. We disagree and, thus, the trial court’s judgment is affirmed.

Parris v Com, 2003-CA-000742--Not To Be Published; Affirming-- PDF

Following a jury trial, Stephen Parris was convicted of fleeing or evading police in the first degree1 and wanton endangerment in the first degree.2 Parris waived sentencing by the jury and entered a conditional guilty plea to being a persistent felony offender in the first degree.3 On April 24, 2001, the Bullitt Circuit Court entered a judgment sentencing Parris to a total of fifteen years’ imprisonment. Subsequently, this Court affirmed Parris’s conviction in an unpublished opinion.4 Thereafter, Parris filed a pro se CR 60.02 motion with the trial court, alleging that his conviction was procured through fraud or perjury. The trial court denied the motion without a hearing and without appointing counsel. Parris now appeals. Finding no error, we affirm.

Pasley v Com, 2003-CA-002559-mr -- Not Published ; Affirming - -- PDF

Bruce Pasley appeals the order of Jefferson Circuit Court denying his motion pursuant to RCr 11.42 for correction of sentence. He argues on appeal that his counsel’s assistance was ineffective because he failed to sufficiently investigate Pasley’s case, that the trial judge abused its discretion by accepting a guilty plea to charges Pasley could not have committed, and the court should have conducted an evidentiary hearing.

Patterson v Com, 2004-CA-001449 -- Not Published ; Vacating and Remanding - -- PDF

Eddie Dante Patterson appeals from an order of the Hardin Circuit Court entered on June 18, 2004, which summarily denied his pro se motion filed pursuant to RCr1 11.42. Patterson contends that his conviction for attempted murder should be set aside due to the deficient performance of his counsel and that the trial court erred in failing to grant him an evidentiary hearing to develop his contention. As we agree that Patterson was entitled to an evidentiary hearing, we vacate and remand for additional proceedings.

Patterson v Com., 2004-CA-002118 --Not To Be Published ; Affirming -- PDF

Appellant, Lavette Patterson (Patterson), appeals the Jefferson Circuit Court’s denial of her motion for custody time credit for time spent in a rehabilitation facility. We affirm the court’s denial of credit. In October 2001, Patterson pled guilty to a charge of second degree robbery and was sentenced to serve five years. That sentence was probated based on compliance with certain conditions. These included attendance and completion of the Jefferson County Drug Court program.

Payne v Com, 2004-CA-000090 -- Not Published ; Affirming -- PDF

Jesse Payne appeals from an order of the Jefferson Circuit Court denying his motion for CR 60.02(e) relief. Payne argued before the circuit court that he was improperly convicted of multiple offenses arising out of one bad act. For the reasons stated below, we affirm.

Payton v Com, 2003-CA-001138--Not To Be Published; Affirming -- PDF

This is an appeal from an order denying appellant’s CR 60.02 motion seeking to have his 1990 conviction overturned because the grand jury that indicted him in 1989 was illegally empanelled. Because appellant previously raised this issue in a motion filed pursuant to RCr 11.42, he is barred from raising it in a subsequent CR 60.02 motion. Hence, we affirm.

Peak v Com, 2004-CA-000178 -- Not Published ; Affirming -- PDF

Michael Peak was found guilty of cultivating marijuana over five plants, second offense; and possession of drug paraphernalia; and was sentenced to seven years in the penitentiary. After his direct appeal to this court was unsuccessful, Peak filed an RCr2 11.42 motion that was summarily denied. We affirm.

Peak v Com. ,2004-CA-001711 -- Not To Be Published ; Opinion and Order Dismissing -- PDF

The Commonwealth has moved the court to dismiss this appeal for the appellant’s failure to comply with various procedural rules, including failing to provide us with a record upon which we can decide the issues presented in the appeal. It is the duty of the appellant to ensure that the record is prepared and certified by the circuit clerk within the time specified in the Rules of Civil Procedure. CR 73.08, 75.01, 75.02, 75.07. In the absence of a record upon which we can conduct a review, we must assume that the evidence supported the decision below. Moody v. Commonwealth, 170 S.W.3d 393 (Ky. 2005); Thompson v. Commonwealth, 697 S.W.2d 143 (Ky. 1985); Ventors v. Watts, 686 S.W.2d 833 (Ky. App. 1985).

Pedergraft v Com, 2004-CA-001355 -- Not To be Published ; Affirming in Part, Reversing in Part and Remanding -- PDF

Robert Pendergraft appeals from an order of the Taylor Circuit Court denying his motion to return certain personal property to him; the property was seized from Pendergraft’s car, without a warrant, by the Taylor County Sheriff. We affirm.

Peeples v Com, 2004-CA-001822 -- Not Published ; Affirming - -- PDF

Ivan Scott Peeples appeals from the judgment of the Fayette Circuit Court after a conditional plea of guilty to possession of cocaine, possession of drug paraphernalia, and being a persistent felony offender in the second degree. Peeples argues on appeal that this prosecution should have been barred on double jeopardy grounds, due to the prosecution allegedly provoking a mistrial at his first trial on these charges in 2003. We disagree that the mistrial was intentionally provoked by the Commonwealth, and affirm the judgment.

Penn v Com, 2003-CA-001868 --Not To Be Published ; Affirming in Part, Reversing in Part and Remanding -- PDF

Johnny Penn appeals from an order of the Boone Circuit Court revoking his probation and sentencing him to five years’ imprisonment upon his conviction for Stalking in the First Degree (KRS 508.140). We affirm.

Pergram v Com, 2004-CA-001576 -- Not To Be Published; Affirming -- PDF

Bobby W. Pergram appeals from an order of the Montgomery Circuit Court denying his motion for post-conviction relief filed pursuant to RCr 11.42. We affirm.

Perkins V Com, 2004-CA-000388--Not To Be Published; Affirming -- PDF

Charles J. Perkins, Sr., brings this appeal from a December 31, 2003, order of the Jefferson Circuit Court denying his motion to vacate guilty plea and judgment brought under Ky. R. Crim. P. (RCr) 11.42. We affirm.

Peveler v Com, 2004-CA-002000 -- Not to be Published ; Affirming -- PDF

On August 28, 2000, Rodney Peveler was convicted, by his own plea of guilty, of the offense of manufacturing methamphetamine in violation of KRS 218A.1432. At the plea proceeding, Peveler acknowledged that he was guilty of the offense, that he had discussed the crime and its elements with his attorney, and that he was pleading guilty voluntarily. On September 11, 2000, he was sentenced to ten years’ confinement.

Phelps v Com, 2004-CA-000710 -- Not to be Published ; Affirming -- PDF

Jeffrey C. Phelps appeals from an order of the Ohio Circuit Court overruling his CR2 60.02 and RCr3 11.42 motions to set aside his conviction and sentence for First Degree Rape. We affirm.

Phillips v Com, 2004-CA-000554 -- Not To Be Published ; Affirming -- PDF

Roxan Phillips appeals from a judgment of the Whitley Circuit Court finding her guilty of four counts of abandonment of a minor and sentencing her to eighteen months’ imprisonment, probated for five years. Roxan argues that her actions in leaving her children inadequately supervised while traveling with their father on long-haul truck trips did not support the statutory elements of the charges. We disagree with Roxan’s contention

Phillips v Com, 2004-CA-000759 --Not To Be Published ; Affirming -- PDF

This is an appeal from a final judgment and sentence on plea of not guilty entered by the Whitley Circuit Court, ordering appellant, Phillip Phillips, to serve nine years in the penitentiary after being convicted of possession of a handgun by a convicted felon. Appellant argues on appeal that the trial court erred by informing the jury of the nature of his multiple prior offenses, by not requiring the jury to find that his prior offenses were felonies, by not declaring a mistrial after two jurors saw him shackled, and by allowing an audiotape of his post-arrest statements to the police to be played. For the reasons stated hereafter, we affirm.

Plank v Com, 2003-CA-001861 -- Not To Be Published ; Reversing in Part, Vacating in Part and Remanding -- PDF

This is a direct appeal from a judgment in which appellant was convicted of facilitation of first-degree burglary and complicity to second-degree manslaughter. We reverse the facilitation of first-degree burglary conviction because there was no evidence that appellant aided her codefendant in entering a dwelling or was in immediate flight therefrom when she drove co-defendant back to the area of a prior burglary after co-defendant had already made a safe escape from that burglary. Due to improper statements made by the Commonwealth in its closing argument constituting prosecutorial misconduct, we vacate the complicity to second-degree manslaughter conviction and remand the case for further proceedings.

Plumb v Com, 2004-CA-002115 -- Not Published ; Affirming -- PDF

Bruce Plumb, Jr., appeals from a judgment of the Fayette Circuit Court, entered September 8, 2004, convicting him pursuant to his conditional guilty plea of the following crimes: being a felon in possession of a firearm,1 first-degree possession of a controlled substance,2 and driving a motor vehicle under the influence of intoxicants (DUI).3 The trial court probated Plumb’s five-year sentence for a period of five years. Plumb’s guilty plea reserved his right to seek review of the trial court’s rulings refusing to suppress evidence allegedly derived from an illegal motor vehicle stop, refusing to suppress drug evidence allegedly rendered unreliable by an inadequate chain of custody, and granting the Commonwealth’s motion to introduce evidence concerning Plumb’s alleged prior drug dealing. Convinced that Plumb is entitled to relief on none of these grounds, we affirm.

Poe v Com,2004-CA-000747 -- Published ; Reversing and Remanding -- PDF

Kevin Michael Poe (Poe) entered a conditional guilty plea on September 25, 2003 to the offenses of driving under the influence, first offense, and possession of marijuana after the district court denied his motion to suppress evidence seized as a result of, what Poe argues, was an illegal stop. The circuit court affirmed the district court’s ruling and Poe’s request for discretionary review by this Court was granted on June 14, 2004. We reverse.

Polley v Com, 2004-CA-000132 -- Not To Be Published; Affirming -- PDF

Appellant, Tommy Lynn Polley (Polley), brings this appeal from a November 26, 2003, order of the Boone Circuit Court overruling his pro se motion, filed pursuant to Kentucky Revised Statutes (KRS) 418.040; Kentucky Rules of Criminal Procedure (RCr) 11.42; and Kentucky Rules of Civil Procedure (CR) 60.02(f); to declare KRS 532.043(3)(a) and (b)2 unconstitutional, and to correct his sentence. Before us, Polley contends that KRS 532.043(3)(a) and (b) and KRS 532.043(5) are a violation of the separation of powers doctrine and double jeopardy. We affirm.

Posey v Com., 2004-CA-001373 -- Not Published ; Affirming -- PDF

William Posey appeals from a jury verdict and judgment convicting him of five counts of third-degree sodomy. Posey contends that he was entitled to a directed verdict of acquittal on all of the charges because the evidence was wholly inadequate to support his convictions. Finding no error, we affirm.

Powell v Com, 2004-CA-000412 -- Not To Be Published; Affirming -- PDF

This is an appeal from an order entered by the Hopkins Circuit Court denying appellant Adrian Powell’s motion to withdraw his guilty plea. For the reasons stated hereafter, we affirm.

Proctor v Com, 2004-CA-000407 -- Published ; Affirming -- PDF

James Proctor, pro se, has appealed from the February 4, 2004, order of the Warren Circuit Court which denied his motion to vacate his sentence pursuant to KRS 532.080. Having concluded that the jury properly recommended sentences on the two underlying felony convictions before the trial court sentenced Proctor to 20 years’ imprisonment on a conviction as a persistent felony offender in the first degree (PFO I), we affirm.

Proctor v Com, 2004-CA-000407 -- Not Published ; Affirming - -- PDF

James Proctor, pro se, has appealed from the February 4, 2004, order of the Warren Circuit Court which denied his motion to vacate his sentence pursuant to KRS 532.080. Having concluded that the jury properly recommended sentences on the two underlying felony convictions before the trial court sentenced Proctor to 20 years’ imprisonment on a conviction as a persistent felony offender in the first degree (PFO I), we affirm.

Purvis Jr. v Com., 2004-CA-001840 -- Not Published ;Affirming In Part, Vacating and Remanding In Part -- PDF

On October 23, 1998 Jimmy Doolittle Purvis pled guilty to raping and sodomizing his three step-daughters, who were 6, 7 and 8 years old at the time of the offenses. Specifically, Purvis pled guilty to one count of First Degree Rape,2 one count of Second Degree Rape3 and one count of Second Degree Sodomy.4 He was sentenced to 15 years, 10 years and 10 years respectively, with all counts to run consecutively for a total of thirty-five years. As a result of plea negotiations fifteen other counts charging various sex crimes against the children were dismissed. Purvis, acting pro se, filed a motion pursuant to CR5 60.01 and 60.02(f) requesting modification of his sentence. The Fayette Circuit Court overruled his motion. We affirm in part, and vacate and remand in part.
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