2006 Unpublished Court of Appeals Opinions Index

Table of Cases
D

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Dailey v Com.,2006-CA-000310 --Not Published ; Affirming -- PDF

Ronald Dailey, pro se, appeals from the circuit court’s denial of his motion for reconsideration of its ruling that Dailey’s petition for habeas corpus was “factually frivolous, malicious, or harassing.” Because the motion is barred by the doctrines of res judicata and the law of the case, we affirm.

Dauzat v Com., 2005-CA-002222 -- Not Published ; Affirming -- PDF

Michael Dauzat (Dauzat) brings this appeal from a judgment of the Christian Circuit Court entered upon a jury verdict finding him guilty of second-degree burglary and violation of a protective order. Dauzat contends that he was entitled to a directed verdict upon the second-degree burglary charge because he had a right to enter the victim’s residence, and, therefore, did not unlawfully enter the dwelling. For the reasons stated below, we affirm.

Davis V Com.,2005-CA-001109 --Not Published ; Affirming -- PDF

Ryan Davis appeals the judgment of conviction rendered in Casey Circuit Court reflecting a jury verdict of guilty on one count of first-degree robbery and one count of first-degree burglary. Davis argues that the circuit court committed reversible error in failing to instruct the jury on robbery second, burglary second, receiving stolen property, and facilitation to burglary and robbery. He also maintains that circuit court erred permitting the Commonwealth’s use of parole eligibility guidelines. For the reasons stated below, we affirm the judgment on appeal.

Davis v Com., 2005-CA-001298 -- Not Published ; Dismissing -- PDF

Demetrius Davis has appealed from the May 2, 2005, order of the Jefferson Circuit Court which dismissed his motion for reconsideration of a bond assignment. Having determined that Davis’s notice of appeal was untimely filed, we must dismiss his appeal.

Davidson v Com,2004-CA-000974 -- Published ; Affirming In Part And Reversing And Remanding In Part -- PDF

A Knox Circuit Court jury convicted Gary “Moose” Davidson of first-degree unlawful imprisonment and second-degree assault. He argues on direct appeal that the judgment of conviction and sentence should be reversed because the trial court erred when it failed to direct a verdict of acquittal on -2- both charges. He asserts that the Commonwealth failed to introduce sufficient evidence on one essential element of both crimes. We disagree that the trial court erred when it refused to direct a verdict. And we affirm the conviction for firstdegree unlawful imprisonment. But we must reverse the seconddegree assault conviction for a palpable error in the jury instruction that allowed the jury to find that Davidson’s hands were dangerous instruments as he used them to strike the victim. While the evidence amply supported a finding that Davidson inflicted a physical injury with his fists, it did not support a finding that Davidson inflicted a serious physical injury with his fists. And Kentucky Revised Statutes (KRS) 500.080(3) requires that in order for parts of the human body to qualify as a dangerous instrument, the body part must directly cause a serious physical injury. So the portion of the judgment convicting Davidson of second-degree assault is reversed, and the case is remanded for a retrial on fourth-degree assault.

Davidson v Com.,2005-CA-001524 --Not Published,Affirming -- PDF

Anthony Wendell Davidson was convicted in the Jefferson Circuit Court of the murder of Catherine Denise Johnson and of the sexual abuse of Johnson’s 11-year-old daughter. As a result, he was sentenced to life without parole for 25 years. He now appeals the trial court’s order denying his motion for relief from the judgment or in the alternative resentencing, which he filed pursuant to CR2 60.02. We affirm.

Davis v Com.,2005-CA-001304 -- Not Published, Affirming -- PDF

Robert Davis appeals his conviction for possession of a handgun by a convicted felon for which he was sentenced to six years’ imprisonment. He advances three arguments in support of his contention that his conviction must be reversed: 1) that the trial court erred in refusing to suppress evidence obtained in an improper search of his vehicle; 2) that the doctrine of collateral estoppel precludes his conviction on the possession of a handgun charge; and 3) that he was entitled to directed verdict of acquittal. Finding no reversible error in any of these contentions, we affirm.

Dean v Com, 2004-CA-002124--Not To Be Published; Affirming -- PDF

Michael Dean appeals his conviction and sentence for two counts of second-degree criminal possession of a forged instrument and being a second-degree persistent felony offender. We affirm.

Dean v Com, 2004-CA-000089 -- Not Published ; Vacating and Remanding -- PDF

Appellant Charles Dean challenges his probation revocation. He argues that probation officers improperly searched a house he was in without having reasonable suspicion to search. Additionally, he argues that the officers’ actions violated Department of Corrections’ policies and procedures. Finally, he argues that his probation revocation was not conducted in accordance with the minimum due process rights accorded probationers. We agree that appellant’s due process rights were violated, and so we vacate and remand.

Dean Jr. v Com.,2005-CA-002380 -- Not Published ; Affirming -- PDF

In July 1990, a Christian County jury convicted Glenn Dean, Jr., of two counts of first-degree rape and related offenses stemming from Dean’s and a codefendant’s violent attack upon a sixteen-year-old girl. Dean was sentenced to ninety years’ imprisonment. In Dean v. Commonwealth, 884 S.W.2d 417 (Ky. 1992), our Supreme Court upheld Dean’s conviction and sentence. In September 2005, Dean moved for relief from his 1990 conviction pursuant to CR 60.02. The Christian Circuit Court denied that motion on October 13, 2005 and Dean has appealed. Dean contends that he was not accorded a mandatory competency hearing prior to his 1990 trial and that the circuit court erred by ruling that because Dean could have raised this issue during his direct appeal he is precluded from raising it now. Although our reasoning differs somewhat from that of the trial court, we agree that Dean’s current motion is untimely, and in any event Dean’s underlying claim is meritless. Accordingly, we affirm.

Delabar v Com., 2005-CA-001319 --Not Published ; Reversing and Remanding -- PDF

Robert K. Delabar appeals from a conditional guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09. Reserved for our review is the trial court’s determination that Delabar is subject to persistent felony offender (PFO) sentencing enhancement pursuant to Kentucky Revised Statutes (KRS) 532.080. Delabar committed his present felony on the fifth anniversary of his release from prison on a prior felony. Because we conclude that Delabar’s release did not occur within the period called for in the statute, we reverse.

Dennison V Com.,2005-CA-000566 --Not Published ; Affirming -- PDF

This is an appeal from an order denying appellant’s RCr 11.42 motion alleging ineffective assistance of counsel. From our review of the record, the trial court properly rejected appellant’s claims that his trial counsel rendered ineffective assistance for failing to pursue an alcohol intoxication defense, failing to allow appellant to testify, failing to move for a competency hearing, failing to submit adequate sentencing instructions, and eliciting prejudicial and inadmissible testimony from a witness. Hence, we affirm.

Denny v Com., 2004-CA-002322 --Not Published ; Affirming -- PDF

Johnny Denny, proceeding pro se, has appealed from the Rockcastle Circuit Court’s order denying his RCr 11.42 motion to vacate his final judgment and sentence entered pursuant to a guilty plea, as well as his motions for an evidentiary hearing and for appointment of counsel. We affirm.

Denny Co v Com, 2004-CA-002502 --Not Published ; Affirming -- PDF

Denny Co appeals from an order of the Franklin Circuit Court denying his motion to vacate his conviction and sentence pursuant to RCr3 11.42. The sole issue is whether any failure by his trial counsel to advise him that he might be subject to deportation upon his conviction constitutes the ineffective assistance of counsel. In light of the Kentucky Supreme Court’s recent ruling in Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005), we affirm.

Derby v Com, 2004-CA-000959 -- Published ; Affirming -- PDF

Matthew Derry appeals from the judgment of the Metcalfe Circuit Court accepting his conditional guilty plea to first-degree sexual abuse and sentencing him to two years’ imprisonment and three years’ conditional discharge. The only issue raised on appeal is whether the charge should have been dismissed as violating his right against double jeopardy. We find that double jeopardy did not attach when Derry requested a dismissal due to improper venue and, thus, affirm the trial court.

D.F. A Minor v Com.,2004-CA-001868 -- Published ; Affirming -- PDF

D.F., a minor, was granted discretionary review of an opinion and order entered by the Jefferson Circuit Court on August 12, 2004, which affirmed an amended order of the Jefferson District Court entered on April 6, 2004, which modified a dispositional order by changing the amount of restitution D.F. owed from $14.43 to $214.43. Having concluded that the Jefferson District Court retained continuing -2- jurisdiction over D.F.’s case when it entered the amended restitution order, we affirm.

Dill v Com., 2005-CA-000275 -- Not Published ;Opinion and Order Dismissing Appeal -- PDF

William Dill (Dill), pro se, brings this appeal of an order of the McCracken Circuit Court, entered January 18, 2005, denying his pro se motion to reconsider the denial of his motion to vacate his five-year sentence arising out of an unconditional guilty plea to second-degree trafficking in a controlled substance (Lortab) and third-degree trafficking in a controlled substance (Xanax),2 pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Because Dill did not timely file his notice of appeal, we have no jurisdiction to consider the appeal. Therefore, it must be dismissed.

Dillard V Com.,2005-CA-000012 -- Not Published ; Affirming -- PDF

Gary Dillard appeals pro se from an order of the Christian Circuit Court denying his motion seeking RCr 11.42 relief. For the reasons stated hereafter, we affirm.

Dipietro v Com., 2005-CA-000312 -- Not Published ;Affirming -- PDF

Edward Dipietro appeals an order of the Hardin Circuit Court, revoking his probation and sentencing him to serve eight years. He maintains that his due process rights were violated because the terms of his probation were not entered into the record at his revocation hearing, and because the circuit court failed to make written findings of fact to support its decision to revoke his probation. We affirm.

Dixon v Com.,2005-CA-001523 -- Not Published ; Affirming -- PDF

Walter R. Dixon appeals pro se from the Jefferson Circuit Court’s opinion and order denying his motion for RCr 11.42 relief. Dixon argues three instances of ineffective assistance of counsel, insufficiency of the evidence, and prosecutorial misconduct. For the following reasons, we affirm.

Dukes v Com., 2004-CA-002662 --Not Published ; Affirming -- PDF

Larry Dukes, pro se, has appealed from the November 12, 2004, order of the Hopkins Circuit Court which denied his pro se motion to vacate judgment pursuant to CR2 60.02, without holding an evidentiary hearing. Having concluded that the trial court did not abuse its discretion by denying Dukes relief, we affirm.

Duncan v Com, 2004-CA-000832 -- Not Published ; Reversing and Remanding -- PDF

Christopher Duncan was charged in an indictment returned in Hancock Circuit Court with several drugrelated offenses and with possession of a handgun and firearms by a convicted felon. When Duncan was arrested on the charges, the Hancock County Sheriff’s deputies who made the arrest seized twenty five long rifles from his property. Duncan died before he could be tried, and the indictment was dismissed on August 15, 2001.

Dunlap v Com.,2004-CA-002058 --Published ; Affirming -- PDF

Dow Dunlap entered a conditional guilty plea to driving under the influence (DUI)1 in the Carroll District Court, and his conviction was affirmed on appeal by the Carroll Circuit Court. Having granted discretionary review, we conclude that the district court did not err in denying Dunlap’s motions to suppress evidence of his consumption of alcohol obtained during a roadblock as a violation of KRS 189.125, which places restrictions on the enforcement of the seatbelt law, or as being unconstitutional on due process grounds. Hence, we affirm.

Dunn v Com.,2005-CA-000468 -- Published, Affirming -- PDF

Rico Dunn appeals from the Jessamine Circuit Court’s judgment sentencing him to serve two years in prison after he entered a conditional guilty plea to first-degree possession of a controlled substance1 (cocaine). On appeal, Dunn contends that the circuit court erred in failing to grant his motion to suppress the evidence of cocaine found on his person. For the following reasons, we affirm.

Dunn v Com.,2005-CA-000816 --Not Published, Affirming -- PDF

The issue in this appeal is whether a youthful offender, who reaches eighteen years of age and is returned to court for final sentencing, is subject to the violent offender prohibition against probation. We agree with the trial court that a youthful offender who is resentenced at eighteen is subject to the violent offender prohibition on probation under KRS 533.010(2). Hence, we affirm.

Durham v Com., 2004-CA-001921 -- Not Published ;Affirming -- PDF

Stacy Durham appeals from a judgment of the Wolfe Circuit Court entered on a conditional plea of guilty on charges related to the manufacturing and trafficking of methamphetamine. Durham argued below that Count III of the indictment should be dismissed because the evidence was insufficient for a jury to conclude that he possessed all of the chemicals necessary to manufacture methamphetamine. For the reasons stated below, we affirm the judgment.
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