2006 Unpublished Court of Appeals Opinions Index

Table of Cases
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Padilla V Com.,2004-CA-001981 -- Published ; Vacating and Remanding -- PDF

Jose Padilla appeals from an order of the Hardin Circuit Court of September 14, 2004, denying his motion for post-conviction relief pursuant to RCr1 11.42. Padilla argues that he was entitled to an evidentiary hearing on his motion claiming ineffective assistance of counsel. After a review of the record and the applicable authorities, we remand this matter to the trial court for further consideration.

Parker v Com. 2005-CA-000427--Not To Be Published; Affirming -- PDF

Bert Van Parker appeals from a judgment of the Fayette Circuit Court convicting him of two drug offenses and sentencing him to three years in prison, probated for a period of five years. The judgment resulted from Parker’s conditional guilty plea to the crimes. Prior to entering his guilty pleas, Parker filed a motion to suppress the evidence obtained by the police following a Terry stop. The court’s denial of the suppression motion is the basis for Parker’s appeal herein. Finding no error, we affirm.

Parker v Com., 2005-CA-000709 -- Not Published ;Affirming -- PDF

Lazarus Parker was arrested on September 10, 2004, when a police search of the store in which Parker was working revealed cocaine, marijuana, and drug paraphernalia. He was indicted, tried, and convicted of trafficking in cocaine, possession of marijuana, possession of drug paraphernalia. Parker was sentenced to ten years, twelve months, and twelve months, respectively, and the sentences were ordered to run concurrently for a total of ten years’ imprisonment. He appeals.

Parker v Com, 2005-CA-001737 --Not Published ; Affirming -- PDF

Antonio Lamont Parker (Parker) brings this appeal from a “Final Judgment, Sentence of Probation” of the Fayette Circuit Court, entered July 20, 2005, adjudging him guilty, upon a conditional guilty plea,3 of third-degree burglary,4 criminal facilitation to third-degree burglary,5 and second-degree persistent felony offender (PFO II),6 and sentencing him to respective terms of imprisonment of five years and twelve months, enhanced to five years by virtue of PFO II status, said sentence probated for five years. We affirm.

Parrigin v Com, 2005-CA-001440 --Not Published ; Affirming -- PDF

Harold Wayne Parrigin appeals from a judgment of the Clinton Circuit Court convicting him of trafficking in a controlled substance and sentencing him to ten years’ imprisonment. As the trial court did not abuse its discretion in denying appellant’s motion for a mistrial, we affirm.

Partin v Com., 2004-CA-002049 -- Not Published ;Affirming -- PDF

Bonnie Partin appeals from a judgment of the Bell Circuit Court convicting her of first-degree assault and sentencing her to ten years’ imprisonment. She argues the trial court should have held a pretrial hearing regarding her unhappiness with defense counsel. Further, Partin contends the trial court acted improperly by questioning Partin during her testimony, allowing hearsay testimony by the victim’s daughter, and sustaining the prosecutor’s objection to evidence of the -2- victim’s character. We disagree and affirm the trial court’s judgment.

Peak v Com.,2005-CA-001032 -- Not Published, Affirming -- PDF

Charles Edward Peak appeals from an order of the Jefferson Circuit Court denying his CR2 60.02 motion to vacate his conviction and sentence for criminal offenses. We affirm.

Peals v Com., 2005-CA-000240 -- Not Published ;Affirming -- PDF

Jeffery Lynn Peals appeals from an order of the Jefferson Circuit Court denying his motion seeking an evidentiary hearing and RCr 11.42 relief. For the reasons stated hereafter, we affirm.

Penn V Com.,2004-CA-001379 -- Not Published ; Affirming -- PDF

Johnny Penn, pro se, appeals from an order of the Boone Circuit Court of June 4, 2004, dismissing his Open Records request. We affirm.

Pennington v Com.,2004-CA-002102 --Not Published, Affirming -- PDF

Matthew David Pennington (hereinafter appellant) was convicted in a jury trial in the Boyd Circuit Court of manslaughter in the second degree in the death of three-year-old Jordan Hammock. Appellant does not challenge his conviction in this appeal, but argues that the trial court erred in considering multiple victim impact statements unauthorized by KRS 421.500. He alleges that he is entitled to a new sentencing hearing at which only the statutorily mandated victim impact -2- statements are considered by the judge. We disagree, and affirm his conviction.

Pennington v Com, 2005-CA-002077 -- Not Published ; Affirming -- PDF

Robert Pennington appeals from a September 15, 2005, judgment of the McCracken Circuit Court convicting him pursuant to his guilty plea of first-degree trafficking in cocaine, in violation of KRS 218A.1412. The court sentenced Pennington as a second-degree persistent felony offender to thirteen years in prison. Pennington contends that the court erred when it refused to suppress the cocaine evidence, which, according to Pennington, a police officer seized unlawfully during a warrantless search of Pennington’s person. Convinced that the search was lawful, we affirm.

Perdue v Com.,2005-CA-000179 --Not Published, Affirming -- PDF

James Frank Perdue appeals from the Clinton Circuit Court’s judgment and sentence in a multi-count criminal proceeding. Perdue asserts that the trial court erred by failing to grant his motion to suppress certain evidence as the fruits of an unlawful search and seizure, by admitting evidence of lab results despite an inadequate showing of chain of custody, and by failing to direct a verdict in his favor on the counts of possession of a controlled substance, possession of drug paraphernalia, and carrying a concealed deadly weapon. For the following reasons, we affirm.

Perry v Com., 2004-CA-002644 -- Not Published, Affirming -- PDF

Robert Michael Perry has appealed from the judgment of conviction and sentence entered by the Jefferson Circuit Court on September 7, 2004, which, following a bench trial, convicted him of three counts of theft by failure to make required disposition of property over $300.00,1 and sentenced him to three, concurrent, five-year prison terms to be probated for five years. Perry argues that the evidence was insufficient to support his conviction, that the trial court improperly applied fiduciary duty principles from civil law in finding him guilty of a criminal offense, and that the amount of restitution he owes was improperly calculated. Having concluded that the Commonwealth presented sufficient evidence to establish Perry’s guilt and the amount of restitution, we affirm.

Phillips v Com, 2004-CA-002374 -- Not Published ; Affirming -- PDF

Andrew Phillips appeals the denial of his RCr 11.42 motion for relief from a judgment entered pursuant to his guilty plea to murder, first degree robbery and tampering with physical evidence. He argues in this appeal that the trial court erred in denying his motion to set that plea aside, and that the trial judge erred in failing to conduct an evidentiary hearing on his post-conviction claims that the guilty plea had been involuntarily entered. Because appellant’s RCr 11.42 claims are conclusively refuted by the record, we find no error in the denial of that motion without a hearing.

Pierce V Com.,2005-CA-000193 -- Not Published ; Affirming -- PDF

On June 27, 2001, a Pulaski County grand jury returned an indictment charging Terry Pierce with first-offense manufacturing methamphetamine while in possession of a firearm.1 On April 25, 2002, Pierce entered a plea of guilty to the charge of first-offense manufacturing methamphetamine. In exchange for this plea, the Commonwealth amended the indictment to delete the firearm enhancement. On May 1, 2002, the trial court sentenced Pierce to fifteen-years’ imprisonment in accord with the Commonwealth’s recommendation.

Poe v Com., 2005-CA-000698 -- Published ; Affirming -- PDF

Joey Lee Poe has appealed from the final judgment and sentence of the Bracken Circuit Court entered on March 8, 2005, which sentenced him to five years’ imprisonment following a jury verdict convicting him of criminal mischief in the first degree2 and disorderly conduct.3 Having concluded that the police officers had reason to detain and to question Poe, and that Poe was not entitled to a directed verdict of acquittal based on the evidence as a whole, we affirm.

Pogue Jr. v Com.,2005-CA-002313 -- Not Published, Affirming -- PDF

William T. Pogue Jr. was convicted on two felony counts of Theft by Failure to Make Required Disposition of Property. He appeals. We affirm.

Polk v Com.,2005-CA-000738 --Not Published, Affirming in Part, Reversing in Part and Remanding -- PDF

Robert Polk appeals that portion of a judgment and sentence of the Fulton Circuit Court which ordered a oneyear sentence to be run consecutively to a twenty-year sentence, for a total of twenty-one years’ imprisonment. Because the twenty-one-year sentence exceeded the maximum sentence of twenty years authorized by KRS 532.110 and KRS 532.080, we reverse in part and remand for resentencing.

Powers v Com.,2005-CA-001158 --Not Published, Affirming -- PDF

On September 10, 1989, Jason Powers and Randall Rich burglarized a car wash in Bowling Green, Kentucky. They broke into the building and stole the change machine; after splitting the contents of the machine, the two pushed it over a bluff. They were indicted the following February for Burglary in the Third Degree and Theft By Unlawful Taking Over $100 (the felony threshold at the time).

Powers v Com., 2005-CA-001416 -- Not Published ; Affirming -- PDF

Paul Powers brings this pro se appeal from an April 28, 2005, order of the Butler Circuit Court summarily denying his Ky. R. Crim. P. (RCr) 11.42 motion to vacate his ten-year sentence of imprisonment entered upon a guilty plea to operating a motor vehicle on a suspended license for DUI (third offense) and being a persistent felony offender in the first degree (Kentucky Revised Statutes (KRS) 189A.090 and KRS 532.080). We affirm.

Price v Com., 2005-CA-001742 -- Not Published ; Affirming -- PDF

David H. Price entered a conditional plea in the Boyd Circuit Court to operating a motor vehicle while his license was suspended for DUI, third offense, and to being a second-degree persistent felon. Price appeals the circuit court’s denial of his motion to exclude a previous conviction that was used to enhance his sentence, alleging that his prior guilty plea in district court was not knowing and voluntary. For the following reasons, we affirm.

Pumphrey v Com.,2004-CA-002677 --Not Published, Affirming -- PDF

Leslie Pumphrey has appealed from the final judgment and sentence of imprisonment entered by the Boyle Circuit Court on December 15, 2004, following a jury trial which convicted her of two counts of complicity to commit robbery in the first degree1 and sentenced her to prison for ten years on each conviction with the sentences to run concurrently. Having concluded that the trial court did not err by refusing to instruct the jury on the lesser-included charge of criminal facilitation to robbery in the first degree,2 we affirm.
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