2006 Unpublished Court of Appeals Opinions Index

Table of Cases
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Haight v Com.,2005-CA-000767 --Not Published ; Affirming -- PDF

Randy Haight appeals from a judgment entered by the Garrard Circuit Court after he entered a conditional guilty plea to the charges of criminal possession of a forged instrument in the second degree and persistent felony offender (PFO) in the second degree. For the reasons stated hereafter, we affirm.

Haley v Com ,2005-CA-001332 -Not Published ;Affirming -- PDF

On April 27, 2005, Danny Glenn Haley entered a conditional plea of guilty (RCr 8.09) to attempted rape in the first degree (KRS 506.110; KRS 510.040) and sodomy in the third degree (KRS 510.090). He was sentenced to a total of five years’ incarceration. Haley was also ordered to pay restitution in the amount of $612.60.

Hall v Com ,2005-CA-002159 - Not Published ;Affirming -- PDF

Ollie Hall appeals from the summary denial of his RCr 11.42 motion. We affirm.

Harding v Com.,2005-CA-001679 --Not Published ; Affirming -- PDF

Appellant David W. Springer appealed, pro se, a Muhlenberg Circuit Court judgment denying his CR 60.02 motion for modification of a judgment and sentence. We affirm.

Hardy v Com.,2005-CA-000366 --Not Published, Affirming -- PDF

Adrian Hardy appeals from the Jefferson Circuit Court’s order revoking his shock probation. Finding no error, we affirm.

Harper v Com.,2005-CA-000907 --Not Published, Affirming -- PDF

Mark Allen Harper appeals the denial of several post-conviction motions following guilty pleas arising from two indictments in McCracken Circuit Court. The indictments were consolidated for sentencing. Harper argues that he is entitled to relief from the order of conviction and final sentence based on ineffective assistance of counsel, and a claim of illegal search and seizure. For the reasons stated below, we affirm the order on appeal.

Harris v Com.,2004-CA-002640 -- Not To Be Published ; Affirming -- PDF

Appellant, Roy Fitzgerald Harris (Harris), appeals the denial of his RCr 11.42 motion to vacate, set aside or correct the judgment on his conviction for sexual abuse in the third degree. We affirm the ruling of the Fayette Circuit Court.

Harris v Com.,2005-CA-000283 --Not Published, Affirming -- PDF

James R. Harris appeals from a judgment entered by the Nelson Circuit Court pursuant to a guilty plea. Appellant contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea without holding a hearing, and erred in failing to have his competency evaluated and hold a competency hearing. We affirm.

Harris V Com.,2004-CA-001331 -- Not Published ; Affirming -- PDF

Michael Harris appeals from two orders of the Christian Circuit Court denying post-conviction relief without holding evidentiary hearings. Both cases involve a judgment convicting him of criminal attempt to manufacture methamphetamine, first-degree possession of a controlled substance, possession of drug paraphernalia (subsequent offense), and being a first-degree persistent felony offender. Harris entered an unconditional guilty plea to the charges and was sentenced to thirteen years. He subsequently filed motions for relief under Kentucky Civil Rule (CR) 60.02 and Kentucky Rule of Criminal Procedure (RCr) 11.42 which were denied by the trial court. The resulting appeals were consolidated and will be disposed of by this opinion in which we affirm the trial court’s orders.

Harris v Com.,2005-CA-000682 --Not Published,Affirming -- PDF

Carl D. Harris (Harris) brings this matter of right appeal from a judgment of the Campbell Circuit Court, entered March 14, 2005, adjudging him guilty of seconddegree robbery3 upon a jury verdict, and adjudging him guilty of second-degree persistent felony offender4 (PFO II) upon a guilty plea, and sentencing him to twelve years’ imprisonment. We affirm.

Harrod v Com., 2005-CA-000177 -- Not Published ;Affirming -- PDF

On January 6, 2003, Ed Lewis, part owner of the Louisville night club “Connections,” fell down a flight of stairs and was relieved of over $20,000 cash. Lewis claimed that Robert B. Harrod robbed him of the money at gunpoint, using a stun gun on him, which precipitated the fall. Harrod insists that he merely witnessed Lewis’s fall and seized the opportunity to grab such a large amount of cash. Harrod fled the building, bumped into a man in the alley, got into a stolen pickup truck, -2- and drove away. He later purchased a one way ticket to Miami, Florida, and was arrested at a layover in Atlanta, Georgia.

Hart v Com.,2005-CA-001610 -- Not Published, Affirming -- PDF

Joey Hart appeals pro se from an order entered by the McCracken Circuit Court denying his motion seeking CR 60.02 relief. We affirm.

Hart v Com, 2005-CA-000491 --Not Published ; Affirming -- PDF

Aaron Hart appeals from a judgment of the Hopkins Circuit Court finding him guilty of assault in the third degree and sentencing him to five years. He argues that he was entitled to a directed verdict because the Commonwealth failed to prove all of the elements of the offense beyond a reasonable doubt. We disagree and affirm the trial court.

Harvey v Com.,2005-CA-002572 --Not Published ; Affirming -- PDF

Derrick Harvey, pro se, appeals the order of the Franklin Circuit Court denying his petition seeking a declaration of rights that he is entitled to credit time spent on parole to his final discharge date under House Bill 269. We affirm.

Haskins V Com.,2005-CA-002341 --Not Published ; Affirming -- PDF

ames Mitchell Haskins appeals from an order of the Christian Circuit Court denying his CR2 60.02 motion to vacate his convictions and sentences for criminal offenses and for being a first-degree persistent felony offender (PFO I). His argument focuses on whether he was properly convicted of PFO. We affirm.

Hawkins V Com.,2004-CA-001199 -- Not Published ; Affirming -- PDF

Quinton Hawkins appeals from a judgment of the Kenton Circuit Court convicting him of trafficking in a controlled substance in the first degree and persistent felony offender in the second degree (PFO II). Following a jury verdict, the court sentenced Hawkins to 14 years’ imprisonment. Hawkins alleges numerous trial errors on appeal. We affirm.

Hayes v Com., 2005-CA-000432 -- Not Published ; Affirming -- PDF

Kermit Eugene Hayes appeals from a judgment of the Boyd Circuit Court convicting him of first-degree trafficking in a controlled substance. Having reviewed the record and the applicable law, we affirm.

Hays v Com, 2003-CA-002254 -- Not Published ; Opinion and Order Dismissing Appeal -- PDF

Ricky Allen Hays (Hays), pro se, brings this appeal from an opinion and order of the Jefferson Circuit Court, entered June 25, 2003, denying his Kentucky Rules of Civil Procedure (CR) 60.02(d) and (f) motion; and from an opinion and order entered August 6, 2003, denying his CR 52.02 and 59.05 motion to amend the June 25, 2003, opinion and order; and from an opinion and order entered September 24, 2003, denying his CR 52.02 and 59.05 motion to amend the August 6, 2003, opinion and order. Because Hays did not timely file his notice of appeal, we have no jurisdiction to consider the appeal. Therefore, it must be dismissed.

Hazelwood v Com.,2004-CA-002232 --Not Published ; Affirming -- PDF

James R. Hazelwood challenges the denial of his motion under CR 60.02 to vacate his amended judgment and sentence under a plea agreement. Under the terms of his plea agreement, Hazelwood is serving a 14 year sentence for robbery in the first degree in Washington County. In addition, Hazelwood pled guilty to three class D felonies in Marion County -- knowingly receiving stolen property, possession of a controlled substance (cocaine) in the first degree, and theft by failure to make required disposition of property valued more -2- than $300 -- for which the trial court sentenced him to five years on each to run concurrent with each other and with the 14 year sentence in Washington County. Because we conclude the trial court did not abuse its discretion in denying Hazelwood’s motion for relief under CR 60.02, we affirm.

Hearld v Com.,2005-CA-002112 --Not Published ; Affirming -- PDF

Appellant, Steven Lynn Hearld, was convicted in the Ohio Circuit Court of first-degree sexual abuse and for being a first-degree persistent felony offender. He was sentenced to a total of sixteen years’ imprisonment and appeals to this Court as a matter of right. Finding no reversible error, we affirm the convictions and sentence.

Heger v Com.,2005-CA-000870 --Not Published ; Affirming -- PDF

John Heger entered a conditional plea of guilty2 to one count of First Degree Possession of a Controlled Substance3 and was sentenced to one year in prison, probated for five years. He appeals from the trial court’s denial of his motion to suppress a quantity of cocaine seized from his person, claiming that the cocaine was illegally seized because he was unlawfully detained and questioned.

Heltsley v Com.,2004-CA-000686 --Not Published ; Affirming -- PDF

This is an appeal from an order of the Caldwell Circuit Court which denied the appellant’s motion to suppress certain evidence discovered during a search of his home. Gregory D. Heltsley entered a conditional guilty plea to possession of a controlled substance in the first degree (methamphetamine), possession of marijuana and being a persistent felony offender in the second degree (PFO II). He challenges the circuit court’s denial of his motion to suppress evidence on the basis that his wife’s consent to search their home was involuntary. In addition, he argues that even if her consent was voluntary, the evidence seized from his home should be suppressed under the fruit of the poisonous tree doctrine. We conclude the trial court properly denied the motion. Thus, we affirm.

Heltzel v Com.,2004-CA-002361 -- Not Published, Affirming -- PDF

William Heltzel brings this pro se appeal from an October 7, 2004, order of the Hardin Circuit Court denying his motion to vacate fine under Ky. R. Civ. P. (CR) 60.03. We affirm.

Hembree v Com, 2005-CA-001068 --Not Published ; Reversing and Remanding -- PDF

Appellant, Ely Wendell Hembree (Hembree), files this direct appeal of his conviction for second degree trafficking in a controlled substance. Hembree argues that the trial court wrongfully denied his motion for mistrial and motion for directed verdict. We affirm the denial of those motions. Hembree also contends that the circuit court was in error in denying his motion for a missing evidence instruction. We -2- believe that Hembree was entitled to a missing evidence instruction, and reverse and remand for a new trial.

Henderson v Com.,2004-CA-001988 --Not Published, Affirming -- PDF

Following a criminal conviction, a defendant who seeks a new trial based on allegedly perjured testimony must prove both a reasonable certainty as to the falsity of the testimony, and that the conviction probably would not have resulted had the truth been known. In this pro se appeal, Kevin Henderson claims that the recanted testimony of his codefendant entitles him to reversal of his conviction. The issue we must decide is whether the Jefferson Circuit Court erred in holding that Henderson failed to meet his burden of proof. We hold that the trial court did not err, and therefore affirm.

Hendrickson v Com. 2004-CA-002479--Not To Be Published; Affirming -- PDF

Marsha L. Hendrickson appeals from a judgment of the Bell Circuit Court wherein she was convicted of burglary in the second degree and was sentenced to ten years’ imprisonment. The single issue in this appeal is whether the Commonwealth presented sufficient evidence to overcome Hendrickson’s directed verdict motions. We conclude that it did, and we thus affirm.

Henry v Com, 2005-CA-000611 --Not Published ; Affirming -- PDF

Following his arrest, the Jefferson County Grand Jury returned two separate indictments against the appellant, Kareem Ali Henry, charging him with first-degree burglary, second-degree assault, two counts of possession of a firearm by a felon, possession of cocaine, tampering with evidence, and possession of drug paraphernalia. In each case, Henry moved to suppress certain statements he made, and certain evidence seized from his automobile, at the time of his arrest. After the trial court denied his suppression motions, Henry reached a comprehensive plea agreement with the Commonwealth.

Henry v Com., 2005-CA-001139 --Not Published ; Affirming -- PDF

Appellant Demetrius Henry entered a conditional guilty plea to first degree trafficking in a controlled substance, second degree evading police, and second degree persistent felony offender. He received a total of ten years’ imprisonment. On appeal, Henry challenges the trial court’s denial of his motions to suppress evidence taken from his person following a traffic stop. Finding no error, we affirm.

Hibsman v Com., 2004-CA-001071 -- Not Published, Affirming -- PDF

This is a direct appeal from a judgment in which appellant was convicted of extortion over $300, guilty but mentally ill, and possession of a handgun by a convicted felon. Appellant argues that the trial court erred in failing to suppress a book about how to be a hit man and a book about disguises found in appellant’s home, and in failing to forward a recusal motion to the Chief Justice. We cannot say that the trial court abused its discretion in allowing the books to be admitted into evidence. As to the motion for recusal, we adjudge there was no error in failing to forward the motion to the Chief Justice as it was a motion brought pursuant to KRS 26A.015. The remainder of the alleged errors were not properly preserved for review and did not rise to the level of palpable error. Hence, we affirm.

Hickman v Com.,2005-CA-000640 -- Published, Vacating and Remanding -- PDF

LeQua Hickman appeals from the order of the Jefferson Circuit Court sentencing him to serve out the remainder of his recommended prison sentence. Hickman argues on appeal that the circuit court misapplied the statutes pertaining to re-sentencing a youthful offender upon reaching the age of majority. We agree, and vacate the order of the circuit court and order a new hearing.

Hickman v Com.,2005-CA-002045 -- Not Published, Affirming -- PDF

Michael Hickman appeals from an August 30, 2005, Order of the Pike Circuit Court denying his Kentucky Rule of Criminal Procedure (“RCr”) 11.42 motion. We affirm.

Hightower v Com.,2005-CA-000790 --Not Published, Affirming -- PDF

Ward Carlos Hightower (a/k/a Orlando J. Hightower) has appealed from a final judgment and sentence of ten years’ imprisonment entered by the Fayette Circuit Court on March 16, 2005, upon his entry of a conditional plea of guilty to one amended count of robbery in the second degree,1 and to being a persistent felony offender in the second degree (PFO II).2 Hightower’s motion to suppress evidence was denied by the trial court on October 7, 2004, and he then entered his guilty plea, reserving the right to appeal the suppression ruling. Having concluded that the trial court properly denied Hightower’s motion to suppress evidence, we affirm.

Hill v Com., 2005-CA-000111 --Not Published ; Affirming -- PDF

Kimberly G. Hill and Robert W. Hill appeal from a judgment of the Jefferson Circuit Court entered upon a jury verdict awarding them damages for retaliatory discharge under the Kentucky Civil Rights Act and finding against them upon their claim for defamation. The Hills contend that the trial court erred when, following the first trial in this matter, it dismissed a judgment in their favor on their claim of common law wrongful discharge; granted a new trial on their claim of defamation; and granted a new trial on the issue of damages.

Hill V Com.,2005-CA-002072 --Not Published ; Affirming -- PDF

Russell B. Hill appeals pro se from an order entered by the Owen Circuit Court denying his motion seeking RCr 11.42 relief based on allegations that he was afforded ineffective assistance of counsel at trial. For the reasons stated hereafter, we affirm.

Hill Jr. v Com., 2005-CA-000239 -- Not Published ; Affirming -- PDF

Appellant, George W. Hill, Jr., appeals, pro se, from the Jefferson Circuit Court’s denial of his motion for CR 60.02(e) relief. The circuit court’s decision is affirmed.

Hillard v Com., 2006-CA-000304 -- Not Published ; Affirming -- PDF

William “Corey” Hillard appeals, pro se, from the Nelson Circuit Court’s order entered September 16, 2002, denying his motion for CR 60.02 relief alleging rehabilitative progress and lack of evidence in the case against him. We affirm.

Hodge v Com., 2005-CA-001752 -- Not Published ; Affirming -- PDF

Marvin K. Hodge appeals from a July 25, 2005, judgment of conviction and sentence of the Nelson Circuit Court, upon a jury verdict finding him guilty of one count of cultivating five (5) or more marijuana plants (Kentucky Revised Statutes (KRS) 218A.1423(2)) and one count of possession of drug paraphernalia (KRS 218A.500). We affirm.

Holt v Com.,2005-CA-000512 --Not Published, Affirming -- PDF

Michael Holt brings this appeal from a January 31, 2005, judgment upon a jury verdict convicting appellant of first-degree rape, first-degree sodomy, and impersonating a police officer. We affirm.

Hooten v Com.,2005-CA-000337 -- Not Published, Affirming -- PDF

This appeal is before us upon a conditional guilty plea pursuant to Kentucky Rules of Civil Procedure (RCr) 8.09. Reserved for our review is whether the trial court properly transferred appellant Tasia Hooten’s first-degree robbery case from juvenile court to circuit court pursuant to Kentucky Revised Statutes (KRS) 640.010 and KRS 635.020. For the reasons stated below, we affirm.

Hudson V Com.,2004-CA-002408 -- Not Published ; Affirming -- PDF

Keesan T. Hudson appeals his convictions for attempted rape, fleeing or evading police officers, burglary, and being a persistent felony offender in the first degree (PFO I). Finding no error, we affirm.

Huff v Com, 2005-CA-001759 -- Published ; Affirming in Part, Reversing in Part and Remanding -- PDF

Enoch Donnell Huff appeals from a judgment of the Bell Circuit Court finding him guilty of fleeing or evading police in the first degree, operating a motor vehicle on a license suspended for DUI, and disregarding a stop sign. Huff argues that the Commonwealth failed to prove that he intended to flee or elude when he drove a short distance to his home before stopping in response to an order from a police officer. He does not appeal from the portions of the judgment convicting him of misdemeanor offenses. We agree with Huff’s contention that the trial court should have granted his directed verdict motion on the first-degree fleeing or evading charge. Thus, we affirm in part, reverse in part, and remand the order of the trial court for entry of a new judgment consistent with this opinion.

Huffines v Com.,2005-CA-001033 --Not Published,Reversing -- PDF

Carolyn Huffines appeals from an order of the Jefferson Circuit Court granting the Commonwealth’s motion to revoke Huffines’s probation. Huffines argues that the circuit court improperly acted after it had lost jurisdiction on the matter. She also maintains that the filing of a motion to revoke probation does not toll the running of the probationary period. For the reasons stated below, we reverse the order on appeal.

Hughes v Com. 2005-CA-000416--Not To Be Published; Affirming -- PDF

In February 2003, John Jerone Hughes intentionally killed his father with a baseball bat. He later disposed of the body by dropping it into a well. Hughes confessed to the crime and pled guilty in the McLean Circuit Court to murder and other offenses. He was sentenced to a total of 20 years in prison pursuant to a plea agreement with the Commonwealth.

Hughes v Com.,2005-CA-000385 --Not Published, Affirming -- PDF

Troy Hughes appeals from the denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion seeking post-conviction relief from a judgment sentencing him to forty years’ imprisonment following his plea of guilty to the murder of his wife and to being a persistent felony offender (PFO). When he entered guilty pleas to the charges in the indictment, Hughes reserved issues relating to the suppression of evidence for direct appeal, but the judgment was affirmed by the Supreme Court.

Hughes v Com.,2005-CA-000385 --Not Published, Affirming -- PDF

Troy Hughes appeals from the denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion seeking post-conviction relief from a judgment sentencing him to forty years’ imprisonment following his plea of guilty to the murder of his wife and to being a persistent felony offender (PFO). When he entered guilty pleas to the charges in the indictment, Hughes reserved issues relating to the suppression of evidence for direct appeal, but the judgment was affirmed by the Supreme Court.

Hunt Sr v Com, 2005-CA-001561 --Not Published ; Affirming -- PDF

This is an appeal from the denial of appellant’s RCr 11.42 motion alleging that his counsel was ineffective in failing to object to impermissible and prejudicial KRE 404(b) character evidence and thereby rendering error in the introduction of that evidence unpreserved for appellate review. We affirm.

Hunt v Com., 2005-CA-001529 -- Not Published ; Affirming -- PDF

Jeffery K. Hunt brings this pro se appeal from a June 20, 2005, order of the McCracken Circuit Court summarily denying his Ky. R. Crim. P. (RCr) 11.42 motion. We affirm.

Hupp v Com., 2005-CA-002249 -- Not Published ; Affirming -- PDF

Harry W. Hupp has appealed from the September 29, 2005, memorandum and order of the Jefferson Circuit Court which denied his motion for a writ of prohibition. Having concluded that the circuit court did not err by denying the motion, we affirm.

Hurt v Com.,2005-CA-000538 -- Not Published ; Affirming -- PDF

Appellant, Michael Hurt (Hurt), files this direct appeal from a conviction of complicity to assault in the first degree. The conviction is affirmed.

Hutson v Com., 2005-CA-002289 -- Published ; Affirming -- PDF

Joseph Hutson (Hutson) appeals from a nunc pro tunc pretrial order entered by the Campbell Circuit Court memorializing Hutson’s arraignment and plea of not guilty to the charge of being a persistent felony offender, second degree (PFO II). Hutson also appeals from the amended judgment of the same court convicting him of the PFO charge. Both the order and amended judgment were entered after this court reversed Hutson’s original conviction on grounds that the record then before this -2- court included no record of Hutson’s arraignment or plea to the PFO charge. Hutson argues that the Campbell Circuit Court had no jurisdiction to enter a nunc pro tunc pretrial order and amended judgment in view of this court’s decision in Hutson v. Commonwealth, 171 S.W.3d 743 (Ky.App. 2005), hereafter cited as Hutson I. For the reasons discussed, we disagree and so affirm the trial court’s judgment
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