2006 Unpublished Court of Appeals Opinions Index

Table of Cases
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W.D.B. a child v Com., 2005-CA-001215 -- Published ; Affirming -- PDF

In May 2004, the juvenile session of the Henderson District Court determined that appellant, W.D.B., had committed the offense of sexual abuse in the first degree and committed him to the Department of Juvenile Justice as a juvenile sexual offender. In upholding that adjudication on appeal, the Henderson Circuit Court rejected W.D.B.’s contentions that the district judge erred: 1) in failing to apply the presumption of incapacity contained in the “infancy defense;” 2) in failing to accept expert testimony that he lacked substantial capacity to appreciate the wrongfulness of his actions; 3) in finding him guilty of the offense solely on the basis of his unsubstantiated confession; 4) in denying him the opportunity to challenge the scientific reliability of the sex offender evaluation; and 5) in refusing to accept an agreed motion to dismiss the matter without prejudice. This Court granted discretionary review to consider the propriety of the circuit court’s determinations. We affirm.

W.H., A Child Under Eighteen v Com.,2005-CA-000673 --Not Published, Affirming -- PDF

This is an appeal from an order finding a juvenile in contempt for violating an order on a status offense, and committing the juvenile to the Cabinet for Health and Family Services for residential placement. None of appellant’s assignments of error were preserved for review and none rise to the level of palpable error. Hence, we affirm.

Wade v Com.,2005-CA-001306 --Not Published, Affirming -- PDF

John William Wade again appeals his conviction for possession of a controlled substance in the first degree and for being a persistent felony offender in the second degree. In an earlier appeal, a panel of this Court vacated Wade’s conviction and sent the case back to the trial court for additional findings.1 Wade now appeals from the trial court’s order following remand. Finding no error, we affirm.

Wade v Com, 2003-CA-002499 --Not Published ; Affirming -- PDF

Samuel Dean Wade, pro se, has appealed from an order entered by the Breathitt Circuit Court on November 7, 2003, denying his CR2 60.02 motion to vacate his sentence pursuant to a judgment entered on November 10, 1997.3 Having concluded that the trial court did not abuse its discretion by denying Wade relief, we affirm.

Wadlington v Com.,2005-CA-000916 --Not Published,Affirming -- PDF

Warren H. Wadlington was convicted of trafficking in methamphetamine and possession of drug paraphernalia, second offense. He was sentenced to ten years’ imprisonment on the trafficking charge and five years’ imprisonment on the possession charge to be served consecutively for a total prison term of fifteen years. Following an unsuccessful appeal to this court and after the Supreme Court denied discretionary review, Wadlington filed an RCr 11.42 motion alleging ineffective assistance of counsel which was summarily denied by the circuit court. This appeal followed.

Wagner v Com, 2004-CA-000074--Not To Be Published; Affirming -- PDF

These two appeals are from orders denying appellant’s third CR 60.02 motion and his second RCr 11.42 motion. We adjudge that the trial court properly denied the CR 60.02 motion because the allegation contained in the motion (unlawful search) could not be properly raised via a CR 60.02 motion. The second RCr 11.42 motion was properly denied because all of the issues raised could have and should have been raised in the first RCr 11.42 motion. Hence, we affirm.

Walker v Com,2004-CA-001292 -- Not Published ; Affirming -- PDF

Appellant, William Walker (Walker), appeals the Oldham Circuit Court’s denial of his petition for declaration of rights and imposition of a fine for contempt. We affirm.

Walker v Com.,2005-CA-000478 --Not Published ; Affirming -- PDF

Chester A. Walker appeals from a Final Judgment and Sentence of Imprisonment entered by the Madison Circuit Court on December 17, 2004. A jury found Walker guilty of Theft by Unlawful Taking Over $300.00 and of being a First- Degree Persistent Felony Offender. He was committed to serve an indeterminate term not to exceed fifteen years and was ordered to pay restitution of $450.00 within six months of his release from custody. On appeal, Walker argues that the evidence presented at trial was insufficient to support his conviction for theft. We disagree and affirm the Final Judgment and Sentence.

Wallace v Com., 2005-CA-002589 -- Not Published ; Affirming -- PDF

Martine Wallace appeals the order of the Jefferson Circuit Court denying him relief under CR 60.02 in accord with a plea agreement. We affirm.

Walling Jr. V Com.,2005-CA-000945 -- Not Published ; Affirming -- PDF

Charles Walling, Jr. appeals from a judgment of conviction by the Hancock Circuit Court following a conditional guilty plea. He argues that the police coerced him to give written and oral consent to search his property, and therefore all evidence seized as a result of those searches should have been suppressed. Because the trial court’s finding that the consent was voluntary was supported by substantial evidence, we affirm.

Walters v Com.,2005-CA-000412 --Not Published, Affirming -- PDF

James Walters brings this pro se appeal from a January 24, 2005, order of the McCracken Circuit Court denying a Ky. R. Civ. P. (CR) 60.02 motion to vacate his life sentence without the possibility of parole for twenty-five years upon a plea of guilty to murder and robbery. We affirm.

Warf V Com.,2004-CA-001964 -- Not Published ; Affirming -- PDF

Tony Warf was arrested on May 19, 2001, for the burglary of JC’s Cigarette Outlet. In exchange for immunity on that charge, Warf agreed to act as police informant on some unsolved burglaries/robberies of other tobacco outlets. On August 15, 2001, Warf was indicted for multiple counts of first degree robbery, burglary, and the status offense of persistent felony offender (PFO) in the first degree, for crimes committed -2- on April 9, 2001. The indictment was based on information inadvertently supplied by Warf in July 2001.

Washabaugh Jr. V Com.,2005-CA-001085 -- Not Published ; Affirming -- PDF

Timothy Washabaugh, Jr. (Washabaugh) brings this appeal from a judgment of the Fayette Circuit Court entered May 10, 2005, upon a jury verdict. He was adjudged guilty of second-degree criminal possession of a forged instrument and first-degree persistent felony offender (PFO I),2 and sentenced to ten years’ imprisonment.3 We affirm.

Washington v Com., 2004-CA-002106 -- Not Published, Affirming -- PDF

The single question in this appeal is whether the trial court erred in denying appellant’s CR 60.02 and RCr 10.26 motions for relief from a judgment based upon his guilty plea to one count of flagrant non-support, one count of criminal non-support and to being a first-degree persistent felony offender. We affirm.

Watkins V Com.,2005-CA-000338 --Not Published ; Affirming -- PDF

Robreyll LeShawn Watkins has appealed from the January 19, 2005, order of the Fayette Circuit Court which denied his 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 Watkins’s claims, we affirm.

Weathers v Com.,2005-CA-001608 -- Not Published ; Affirming -- PDF

Larry Wayne Weathers, Appellant, was indicted in Washington Circuit Court on a two count indictment of theft by unlawful taking over three hundred dollars ($300) pursuant to Kentucky Revised Statutes (KRS) 514.030 and as a persistent felony offender in the first degree pursuant to KRS 532.080(3). The Appellant signed a guilty plea that was filed with the Washington Circuit Court May 24, 2005. Subsequently on May 27, 2005, the Appellant filed a motion to withdraw his plea. This motion was supplemented with additional grounds on June 9, 2005. The trial court denied, without a hearing, the Appellant’s attempt to withdraw the guilty plea. The record on appeal does not contain a transcript of the guilty plea colloquy, but does contain the signed plea agreement. A final judgment and sentence was entered in Washington Circuit Court on July 8, 2005. This appeal follows. We now affirm.

Weiss V Com.,2005-CA-000550 --Not Published ; Affirming -- PDF

Gary Jody Weiss, pro se, appeals from an order of the Clinton Circuit Court denying his RCr 11.42 motion. We agree with the trial court that defense counsel did not render ineffective assistance. Hence, we affirm.

Wells v Com, 2003-CA-002290--Not To Be Published; Affirming -- PDF

On September 7, 2001, a Scott County grand jury returned an indictment charging Brian Clayton Wells with two counts of assault in the third degree;1 and one count each of resisting arrest;2 first degree escape;3 and being a persistent felony offender in the second degree.4 Following a trial, the jury acquitted Wells on the assault charges, but found him guilty of the remaining charges. The jury fixed Wells’s sentence at a total of ten years’ imprisonment, which the trial court imposed. Wells now appeals. Finding no error, we affirm.

West v Com., 2005-CA-001941 -- Not Published ; Reversing -- PDF

Tina West brings this appeal from a conditional guilty plea entered in Henderson Circuit Court pursuant to RCr3 8.09. West contends that the arresting officer did not have reasonable suspicion to conduct a “Terry stop,”4 thus the seizure of drug-related evidence incident thereto was inadmissible. For the reasons stated below, we reverse.

Whalen v Com ,2005-CA-000699 - Published ;Affirming -- PDF

A Clark Circuit Court jury convicted Thomas Henry Whalen of first-degree robbery, and the court sentenced him to fifteen years’ imprisonment. We affirm on direct appeal. A man entered the Fast Stop Chevron in Winchester, Kentucky; approached the register; and told the cashier, Rose Newman, “I want all your f-ing money.” The man also pointed some type of object at Newman and stated, “I’ll blow all your all’s f-ing heads off.” Newman put the cash drawer on the counter, and the robber removed the contents. As the robber -2- turned to leave, Newman pressed the panic button.

Whisman v Com, 2003-CA-002051 -- Published ; Affirming -- PDF

Roy Whisman appeals from a judgment of the Lewis Circuit Court wherein he was convicted of six counts of Obtaining a Controlled Substance by Presenting a Prescription that was Obtained in Violation of KRS2 Chapter 218A. See KRS 218A.140(1)(f). The court sentenced Whisman to two and one-half years in prison on each count, with the sentences to run concurrently with each other. Further, the court probated the sentence for five years.

White v Com.,2005-CA-000742 --Not Published, Affirming -- PDF

Ryan Robert White entered a conditional guilty plea in the Fayette Circuit Court to charges of first-degree possession of a controlled substance, second-degree fleeing or evading police, and driving on a suspended license. He appeals from the trial court’s adverse ruling on his motion to suppress. Because we affirm the trial court’s suppression ruling, we therefore also affirm White’s convictions on his guilty plea.

Whitehead v Com.,2005-CA-001205 -- Not Published, OPINION AND ORDER DISMISSING APPEAL -- PDF

Jimmie2 Ray Whitehead appeals an order of the Harlan Circuit Court denying his motion to alter, amend, or vacate the order that set aside the order quashing his indictment. Because Whitehead appeals from an interlocutory order, we must dismiss the appeal even though the Commonwealth did not question the order’s appealability.

Widener V Com.,2004-CA-001823 -- Not Published ; Affirming -- PDF

A search incident to arrest must take place contemporaneously with the apprehension of the person arrested. In this case, we must decide whether the search of Steven Widener’s motel room, following his arrest pursuant to an arrest warrant, exceeded the scope permitted by the Fourth Amendment. We hold that it did not and therefore affirm the judgment of the Boone Circuit Court.

Williamson v Com.,2003-CA-002683 -- Not Published ; Affirming -- PDF

In these two appeals, Larry Edward Williamson (Larry) challenges the Marion Circuit Court’s denials of his motions to (1) vacate his murder conviction under either CR 60.02 or RCr 10.26 due to alleged errors in the jury selection process and prosecutorial misconduct and (2) correct his presentence investigation (PSI) report. Finding no error in the trial court’s rulings on either motion, we affirm.

Willis V Com.,2005-CA-000818 --Not Published ; Affirming -- PDF

Dale Willis was convicted of second-degree assault2 and being a second-degree persistent felony offender3 (PFO) in connection with a violent attack on his girlfriend, Belinda Hatfield. He argues in this appeal that the trial court erred in refusing his request for a missing evidence instruction and in allowing the Commonwealth to introduce an exhibit during the penalty phase of his trial which contained extraneous information about a prior conviction. Finding no reversible error in either contention, we affirm the judgment of the Bell Circuit Court.

Wilson v Com ,2005-CA-001536 - Not Published ;Affirming -- PDF

Kevin Ray Wilson brings this appeal after having entered a conditional guilty plea3 in Fayette Circuit Court on May 4, 2005. We affirm.

Wilson v Com., 2005-CA-002175 -- Not Published ; Affirming -- PDF

Lamont Wilson appeals from an order of the Fulton Circuit Court revoking his probation and reinstating his sentence of one year in prison. We affirm.

Wilson v Com.,2005-CA-001648 -- Not Published ; Vacating and Remanding -- PDF

Joseph Wilson appeals from the Mercer Circuit Court’s order denying his motion for relief pursuant to RCr1 11.42. Wilson argues that the circuit court erred by failing to hold an evidentiary hearing regarding his motion and by failing to strike his former trial counsel’s response to his motion. For the following reasons, we vacate the circuit court’s order and remand for an evidentiary hearing.

Windham v Com, 2004-CA-000258 --Not Published ; Affirming -- PDF

Samantha Windham appeals from a judgment and sentence of the Christian Circuit Court reflecting a jury verdict of guilty on two counts of third-degree assault and one count each of resisting arrest and disorderly conduct. Windham argues that the evidence did not support the assault conviction, that she was denied due process of law when a deponent was not present to testify at trial, and that she did not receive a fair trial because the jury did not represent a cross section of her community. For the reasons stated below, we affirm the judgment on appeal.

Winkle v Com., 2005-CA-000473 -- Not Published, Affirming -- PDF

Anthony Winkle has appealed from the judgment of the Bracken Circuit Court entered pursuant to a conditional guilty plea. Winkle’s plea was conditioned on his right to appeal from the circuit court’s ruling that he was competent to stand trial. We affirm.

Witt v Com.,2005-CA-001928 -- Not Published, Affirming -- PDF

Appellant, Scott Paeng Witt, appeals from a conditional guilty plea to the charges of trafficking in cocaine and of being a persistent felony offender in the second degree. We affirm the trial court’s denial of the motion to suppress. Witt was indicted on one count of trafficking in cocaine, a Class C felony, one count of trafficking in marijuana, a Class D felony, and one count of being a persistent felony offender in the second degree. Witt was also charged with several misdemeanors, including operating a motor vehicle on a suspended license.

Wombles v Com, 2004-CA-001317 --Not Published ; Affirming -- PDF

James Monroe Wombles appeals from an order of the Clay Circuit Court denying his motion to vacate his conviction and sentence under RCr3 11.42. We affirm.

Woolum v Com.,2005-CA-001783 -- Not Published, Affirming -- PDF

William Woolum appeals from an order of the Lyon Circuit court denying his CR 60.02 motion. We affirm.

Woosley V Com.,2005-CA-001815 -- Not Published ; Affirming -- PDF

Terrell Woosley appeals from a denial of a motion to amend his final judgment and sentence pursuant to CR 60.02(f). Because his motion was not filed within a reasonable time, we affirm.

Works v Com, 2005-CA-000947 --Not Published ; Affirming -- PDF

Derek Works appeals from an order of the Fayette Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Finding no error in the trial court’s denial of the motion, we affirm.

Worthington v Com.,2004-CA-002473 -- Not Published ; Affirming -- PDF

This is an appeal from an order denying appellant’s RCr 11.42 motion alleging ineffective assistance of counsel without an evidentiary hearing. Since appellant’s allegations were refuted by the record, the trial court was not required to hold a hearing on the motion pursuant to RCr 11.42(5). Hence, we affirm.

Wright v Com., 2005-CA-000258 -- Not Published ;Vacating and Remanding -- PDF

James Rocky Wright (Wright) brings this appeal of an opinion and order of the Jefferson Circuit Court, entered December 2, 2004, modifying an opinion and order, entered September 17, 2004, denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 to vacate a twenty-five year sentence. Having concluded that a factual finding relied upon by the trial court is clearly erroneous and that the trial court has incorrectly applied the law, we vacate the opinions and orders of the trial court, and upon remand for resentencing, direct the trial court to vacate Wright’s twentyfive year sentence and provide him with the opportunity to enter a guilty plea pursuant to the Commonwealth’s initial twenty-year offer.

Wyssbrod v Com.,2004-CA-002520 --Not Published,Affirming -- PDF

Joseph Reed Wyssbrod brings this appeal from a November 8, 2004, judgment upon a jury verdict finding him guilty of stalking in the first degree and sentencing him to one year in prison. We affirm.
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