2004 Unpublished Court of Appeals Opinions Index

Table of Cases
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Sams v Com, 2004-CA-000383 -- Not Published ; Affirming -- PDF

Wendell Clayton Sams has appealed from the January 29, 2004, order of the Woodford Circuit Court which denied his motion to vacate and set aside the trial court’s final judgment of conviction and sentence of imprisonment pursuant to RCr1 11.42. Sams’s motion asserted two grounds for relief: (1) that the trial court erred when it found that his guilty plea was entered knowingly, voluntarily, and intelligently; and (2) that he received ineffective assistance of counsel. Having concluded that the trial court did not err in finding that Sams entered his plea knowingly, voluntarily, and intelligently, and that he received adequate representation by counsel, we affirm.

Sanchez v Com, 2003-CA-002137--Not To Be Published; Affirming -- PDF

Felipe Olivas Sanchez shot and killed Jose Hernandez-Beltran during a drug deal that went bad. Following a trial by jury in which Sanchez was found guilty of first-degree manslaughter, the Fayette Circuit Court sentenced Sanchez to ten years in prison. Alleging errors by the prosecutor during closing argument and errors by the court, Sanchez filed this direct appeal. We find no reversible errors and thus affirm.

Schneider v Com, 2004-CA-000067 -- Not To Be Published; Affirming -- PDF

Scott Schneider brings this direct appeal from an October 6, 2003, judgment of the Lyon Circuit Court entered on a plea of guilty to four counts of third-degree assault. Finding no error, we affirm.

Seely V Com, 2004-CA-000769--Not To Be Published; Affirming -- PDF

In July 1999, the Fayette County grand jury indicted Dennis Seeley for trafficking in marijuana.1 The offense was alleged to have occurred in June 1999. While this indictment was pending, a federal district court in Alabama indicted Seeley for marijuana trafficking allegedly occurring in 1995 and 1996. He was convicted of the federal charge in May 2003 and was sentenced to seventy-eight months’ imprisonment.

Shaffer v Com, 2004-CA-001611 -- Not Published ; Affirming -- PDF

Appellant, Jack Shaffer, was indicted by the Grand Jury of the Russell Circuit Court in 1989 for first-degree rape, first-degree sodomy, and murder. The indictment was eventually dismissed, and further prosecution was barred. Shaffer v. Morgan, 815 S.W.2d 402 (Ky. 1991). In July 2004 Shaffer moved the Russell Circuit Court, pursuant to KRS 431.076, to expunge the record in the case. The motion was denied without appointment of counsel or a hearing. Shaffer appeals. We affirm.

Shannon v Com., 2004-CA-000962 --Not Published ;Affirming -- PDF

Mark Shannon appeals from an order of the Simpson Circuit Court denying his successive Kentucky Rules of Civil Procedure (CR) 60.02 motion for post-conviction relief. Finding no error, we affirm.

Shearer v Com, 2004-CA-001417 -- Not Published ; Affirming -- PDF

Miquel Shearer (Shearer) appeals the order of the Fayette Circuit Court denying his motion for relief from judgment under CR 60.03. He requests on appeal that we grant him equitable relief by removing two or three years off his sentence. Because we conclude that Shearer’s claims are unsupported and time-barred, and the trial court was without jurisdiction to amend the judgment, we affirm.

Sheeley v Com, 2003-CA-001786 --Not To Be Published;Affirming in Part,Reversing in Part and Remanding -- PDF

Wade G. Sheeley appeals from a judgment of the Meade Circuit Court following a jury verdict of guilty on one count of facilitating the manufacturing of methamphetamine. He contends that the trial court erred in denying his motion for a directed verdict, that certain testimony was improperly admitted, and that he was prejudiced when the jury was told that his co-indictee had entered a guilty plea. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.

Shores v Com.,2004-CA-000080 -- Not Published ; Affirming -- PDF

Charles O. Shores appeals from a summary denial of his RCr 11.42 motion. We affirm.

Simmons V Com, 2004-CA-000621--Not To Be Published; Affirming -- PDF

Immediately following her filing of a dissolution action against appellant, Rodney Simmons, Rachel Simmons began to experience a series of unfortunate events, mostly dealing with damage to her property. Cars, which were marital property and which had been assigned by the domestic court to her for her use, were damaged; an apartment which she rented was burglarized, vandalized, and items removed therefrom; she received telephone calls from an unidentified caller accusing her of being a whore.

Simpson v Com, 2004-CA-000641 -- To Be Published; Affirming -- PDF

On June 27, 2003, Antonio Simpson was arrested by the Covington police and charged with first-degree trafficking in less than eight ounces of marijuana, a misdemeanor. Because he was driving at the time of his arrest, the police impounded Simpson’s car and secured a search warrant. The search of the car uncovered seven bags of marijuana and three sets of digital scales. Based on this evidence, Simpson was indicted for trafficking in marijuana over five pounds.3 He filed a motion to dismiss the indictment on grounds of double jeopardy because by the time of his indictment, he had already disposed of the misdemeanor with a guilty plea in district court. After the circuit court denied the motion, Simpson entered a conditional guilty plea, reserving an appeal from the denial of his motion to dismiss. We hold that double jeopardy did not prevent the later trafficking charge; thus, we affirm the circuit court’s order denying dismissal.

Singleton, 2003-CA-000204 and NO. 2003-CA-001419 -- (1)AFFIRMING APPEAL NO. 2003-CA-000204-MR and (2) REVERSING AND REMANDING APPEAL NO. 2003-CA-001419-MR -- PDF

Westley D. Singleton brings Appeal No. 2003-CA- 000204-MR from a November 15, 2002, Order and brings Appeal No. 2003-CA-001419-MR from a June 12, 2003, Order of the Rockcastle Circuit Court; both orders denied Ky. R. Crim. P. (RCr) 11.42 motions to vacate. We affirm Appeal No. 2003-CA-000204-MR and reverse and remand Appeal No. 2003-CA-001419-MR.

Skaggs v Com., 2004-CA-001668 --Not To Be Published ; Affirming -- PDF

John Wayne Skaggs, Jr. appeals from an order of the Jefferson Circuit Court denying his motion pursuant to RCr 11.42 to vacate his conviction. In the court below, Skaggs argued that his counsel was ineffective for not ascertaining that Skaggs was improperly charged. On appeal, Skaggs generally abandons the ineffective assistance argument, but still challenges the legitimacy of his conviction on his belief that the facts did not support the charge. We affirm.

S.L. v Com, 2004-CA-000745 -- To Be Published ; Affirming -- PDF

[ed. note - this was originally rendered on 4/22 as unpublished and then ordered published on 6/3]S.L., a child under 18, has appealed from the order of the Carter Family Court entered on March 12, 2004, wherein she was committed to the Department for Community Based Services (DCBS), with recommended placement at Ramey-Estep Homes.1 Having concluded that S.L. failed to properly preserve the issue for our review and finding no palpable error by the family court, we affirm.

Smallwood v Com, 2004-CA-000431 -- Not To Be Published; Affirming -- PDF

David Smallwood pled guilty to one count of Second Degree Burglary, one count of Third Degree Burglary and one count of First Degree Criminal Trespass and was sentenced to five years, three years and twelve months respectively, with the felonies to be served consecutively. On September 13, 2002 Smallwood’s sentence was probated for five years. One of the -2- conditions of his probation was that he successfully complete the Fayette County Drug Court program.

Smiddy v Com, 2004-CA-000706 -- Not Published ; Reversing and Remanding - -- PDF

On the night of October 10, 2002, Detective Danny Payne (Detective Payne) of the Leitchfield Police Department and Detective Corey Knochel of the Kentucky State Police (KSP) met with William Payne (Payne), a confidential informant (CI), in order to conduct a controlled buy for OxyContin. Smiddy was charged in an indictment with one count of trafficking in a controlled substance in the first degree and one count of being a persistent felony offender in the first degree. In short, the Commonwealth simply failed to adduce sufficient evidence to prove beyond a reasonable doubt that Smiddy was guilty of possessing morphine with intent to sell. Consequently, the instruction was not supported by the evidence, and the trial court erred when it submitted the instruction to the jury. Thus, we reverse Smiddy’s conviction and remand to Grayson Circuit Court with directions to grant Smiddy a new trial.

Smith v Com, 2003-CA-001827--Not To Be Published; Affirming -- PDF

Gerald R. Smith was convicted of one count of first-degree rape and one count of first-degree sexual abuse and sentenced to 55 years in prison. After an unsuccessful direct appeal, the circuit court denied Smith’s collateral attack on the judgment via an RCr1 11.42 motion to vacate his conviction and sentence. The circuit court ruled without a hearing that Smith had failed to file this motion in a timely manner and that the claims raised in the motion had either been rejected or

Smith v Com, 2003-CA-001775--Not To Be Published; Affirming -- PDF

Scott A. Smith appeals from a judgment of the Boone Circuit Court wherein he was convicted of a drug trafficking offense and was sentenced to twelve years in prison. Smith entered a conditional guilty plea to the drug trafficking charge, and in this appeal he challenges the circuit court’s ruling on his motion to suppress evidence. We affirm.

Smith v Com, 2004-CA-000467--Not To Be Published; Affirming -- PDF

Appellant Theopolis Smith (Smith), pro se, brings this appeal from an order of the Christian Circuit Court, entered February 5, 2004, summarily denying his motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. We affirm.

Smith v Com, 2003-CA-002212 -- Not Published ; Affirming -- PDF

Appellant Eric Shawn Smith (Smith) was convicted in the Fayette Circuit Court of assault in the first degree and robbery in the first degree following a jury trial. He was sentenced to ten years on each charge, to run concurrently. He now appeals that verdict.

Smith v Com, 2003-CA-002212 -- Not Published ; Affirming -- PDF

Appellant Eric Shawn Smith (Smith) was convicted in the Fayette Circuit Court of assault in the first degree and robbery in the first degree following a jury trial. He was sentenced to ten years on each charge, to run concurrently. He now appeals that verdict.

Smith v Com, 2004-CA-001743 -- Not Published ; Affirming - -- PDF

Carlton Smith (Smith) brings this appeal from a "Judgment and Sentence on Plea of Not Guilty (Jury Trial)" from the Hopkins Circuit Court, entered August 3, 2004, adjudging him guilty of second-degree assault2 and first-degree promoting contraband3 and sentencing him to five years and one year, respectively, each sentence enhanced to ten years pursuant to first-degree persistent felony offender (PFO I) status;4 the enhanced sentences to run concurrently for a total of ten years' incarceration. We affirm.

Smith v Com, 2004-CA-001690 -- Not Published ; Affirming - -- PDF

Joseph Allan Smith appeals to this court following his conditional plea of guilty to the offenses of Criminal Possession of a Forged Instrument, Third Degree, Possession of Cocaine, Possession of Marijuana, Operating without Insurance, and Operating on a Suspended Drivers License. Finding no error, we affirm.

Smith v Com, 2004-CA-002152 -- Not Published ; Vacating and Remanding - -- PDF

George G. Smith appeals from an order of the Graves Circuit Court denying his RCr1 11.42 motion to vacate his convictions for the offenses of criminal attempt to commit murder and first-degree wanton endangerment. Smith contends that the court erred in denying his motion without granting an evidentiary hearing. We vacate and remand.

Smith v Com., 2004-CA-002099 --Not To Be Published ; Affirming -- PDF

Richard A. Smith was sentenced to five years imprisonment by the Muhlenberg Circuit Court in a judgment entered on September 21, 2004 following his conditional guilty plea to a number of pending criminal charges. Smith appeals from the trial court’s August 20, 2004 order denying his motion to suppress evidence following an August 2, 2004 suppression hearing. On review, we affirm.

Smith v Com,2004-CA-000826 -- Published ; Affirming -- PDF

This is an appeal from a judgment in which a driver who was on methadone maintenance was convicted of second-degree manslaughter and second-degree assault stemming from a motor vehicle accident. Appellant argues that the trial court should have suppressed the results of her blood test and that the court erred in allowing expert testimony regarding the side effects of the two drugs found in appellant’s blood. From our review of the record, the trial court properly denied the motion to suppress the results of appellant’s blood test and properly allowed the experts to testify regarding the side effects of the drugs. Hence, we affirm.

Smith v Com., 2004-CA-001287 --Not Published ;Affirming -- PDF

Kedren Smith, pro se, has appealed from the June 16, 2004, order of the Jefferson Circuit Court which denied his pro se motion to vacate or to correct the trial court’s final judgment and sentence of imprisonment pursuant to RCr1 11.42, without holding an evidentiary hearing. Having concluded that the trial court did not err in denying Smith’s claims without holding an evidentiary hearing, we affirm.

Sowell v Com, 2004-CA-000348 -- To Be Published; Affirming -- PDF

Jerod Sowell appeals from the judgment of the Jefferson Circuit Court of January 20, 2004, convicting him of possession of a controlled substance, resisting arrest, and third-degree criminal mischief. The judgment was based upon Sowell’s conditional guilty plea to the offenses pursuant to RCr1 8.09. Sowell reserved the right to appeal the court’s denial of his suppression motion. On appeal, he argues that the Commonwealth failed to establish the existence of a reasonable suspicion for stopping the vehicle in which he was riding at the time of his arrest. As we find no error in the ruling of the trial court, we affirm.

Spalding v Com, 2003-CA-001842 -- Not Published ; Affirming -- PDF

Appellant Michael Dwayne Spalding (Spalding) appeals his conviction in the Jefferson Circuit Court for assault in the third degree. Spalding was also convicted of resisting arrest and being a persistent felony offender in the second degree. Spalding contends on appeal that there was insufficient evidence to convict him of the assault charge because the Commonwealth failed to establish the element of intent. We affirm.

Spivey v Com, 2004-CA-000987 -- Not To Be Published; Affirming -- PDF

Randall Spivey appeals from a judgment of the Jackson Circuit Court reflecting a jury verdict of guilty on one count of manufacturing methamphetamine. Spivey contends that the evidence failed to support his conviction, that laboratory results were improperly admitted into evidence, and that the jury was not instructed on an essential element necessary for conviction. For the reasons stated below, we affirm the judgment on appeal.

Springer V Com, 2003-CA-002727--Not To Be Published; Vacating and Remanding -- PDF

This appeal questions whether a pat down search of a passenger in a car was lawful when the car was stopped for traffic violations only and there was no evidence that the passenger was armed or dangerous. We adjudge that the pat down search was not justified under the facts of this case. Accordingly, we vacate the judgment entered pursuant to the conditional guilty plea and remand the matter for further proceedings.

Stallworth v Com, 2004-CA-000371 -- Not Published ; Affirming -- PDF

Keith Stallworth appeals the circuit court’s denial of his motion for post-conviction relief. He argues that the trial court erred in determining that he did not establish ineffective assistance of counsel based on his claim that trial counsel relied upon a defense strategy that had virtually no chance of success as a matter of law. He also argues that the trial court erred by denying him an evidentiary hearing on his motion. We affirm the circuit court’s denial of relief on all issues.

Stidham v Com, 2003-CA-001159--Not To Be Published; Reversing-- PDF

Appellant, James Stidham (James), appeals his conviction for Criminal Facilitation to Murder. We reverse Stidham’s conviction.

Stiltner v Com, 2003-CA-002256 -- Not To Be Published; Affirming -- PDF

A Pike Circuit Court jury convicted appellant, Donald Stiltner, of complicity to commit first-degree manslaughter, and he was sentenced to eleven years in the state penitentiary. On appeal, Stiltner asserts that the trial court erred by (1) failing to declare a mistrial after the Commonwealth’s opening remarks referred to testimony that was not presented at trial, (2) allowing a detective to testify regarding a ballistics report prepared by another person, and (3) not defining the word “conspiracy” in the jury instructions. We affirm.

Stone v Com, 2004-CA-000364 -- Not To Be Published; Affirming -- PDF

Julie Bernice Stone (Stone) brings this appeal from a “Final Judgment/Sentence of Probation” entered by the McCracken Circuit Court on February 3, 2004, sitting without jury. Stone was found guilty of the indicted offenses of felony first-degree possession of cocaine, first offense,2 and misdemeanor resisting arrest. She was sentenced to concurrent sentences of two years and ninety-days, respectively, and credit for 102 days served with the remainder of the sentence probated for two years. Before us, Stone argues that she denied due process by the introduction of other crimes/ character evidence in violation of Kentucky Rules of Evidence KRE) 404 and that the trial court erred in not directing verdict of acquittal on the resisting arrest charge.

Stone v Com., 2004-CA-002329 -- Not Published ; Affirming -- PDF

Appellant, Kenneth Stone (Stone), appeals the Henderson Circuit Court’s denial of his motion to vacate and set aside judgment and conviction pursuant to RCr 11.42. We affirm.

Stout, Jr v Com, 2003-CA-001504 -- Not To Be Published; Affirming -- PDF

William Leon Stout Jr. appeals pro se from orders of the Boone Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his sentence. He also claims that the circuit court erred when it denied his request for an evidentiary hearing.

Stull v Com, 2004-CA-001671 -- Not To Be Published; Affirming -- PDF

John Stull appeals from an order of the Campbell Circuit Court revoking his probation and ordering him to serve a five year sentence. Stull contends that his constitutional rights to due process and equal protection of the law were violated and that the trial court erred in revoking his probation. We affirm.

Sturgill v Com, 2004-CA-000500 -- Not To Be Published; Affirming In Part and Reversing In Part -- PDF

Philip Sturgill, individually and in his capacity as Sheriff of Boyd County; and Fidelity and Deposit Company of Maryland, Sturgill’s surety, appeal from a summary judgment holding Sturgill liable to the Boyd County Fiscal Court for more than $113,000.00. After our review of the record, we affirm a portion of the judgment and reverse in part.

Sumpter v Com, 2004-CA-000119 -- To Be Published; Affirming -- PDF

Kenny Ray Sumpter is currently serving five years’ imprisonment for second degree criminal possession of a forged instrument (KRS 516.060). His appeal raises two issues, namely, whether the trial court erred in denying his motion in limine, and whether there was sufficient evidence to support the conviction. We affirm.

Sweat v Com, 2004-CA-000711 -- Not Published ;Affirming -- PDF

Herschel Sweat, Jr. appeals from an order of the Casey Circuit Court denying his request for relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Sweat alleges that his trial counsel rendered ineffective assistance when he failed to object to the introduction of the statutory presumption regarding intoxication in a wanton murder case where -2- Sweat was allegedly driving while intoxicated. In addition, he claims error in trial counsel’s failure to explore other causes which may have contributed to the crash. While we agree that it was error for the Commonwealth to introduce evidence of the statutory presumption regarding intoxication, such error was harmless in light of the other evidence offered. Thus, the trial court’s order is affirmed.

Swift v Com, 2003-CA-002033 -- Not Published ; Affirming In Part, Reversing and Remanding In Part-- PDF

Anthony Wayne Swift was convicted by a jury of cultivating marijuana, trafficking in marijuana, and possession of drug paraphernalia. He was ordered to serve a total sentence of ten years by Ohio Circuit Court. In a separate order, the court also directed that Swift’s real property be forfeited. The appeals from these two orders have been consolidated on Swift’s motion.
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