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Carroll v Com., 2003-SC-000566-MR -Not To Be Published, Memorandum Opinion of the Court -- PDF

Appellant, Billy Ray Carroll, was convicted in the Kenton County Circuit Court of second-degree burglary and first-degree persistent felony offender. He was sentenced to 10 years on the second-degree burglary. Upon a finding of first-degree persistent felony offender, his sentence was enhanced to 20 years. He appeals as a matter of right. For the reasons set forth, we affirm the Appellant's convictions .

Chambers v Com., 2003-SC-001063-MR -Not To Be Published, Affirming -- PDF

Appellant, Timothy Chambers, was convicted by a jury in Greenup Circuit Court of eight counts of criminal attempt to commit an unlawful transaction with a minor, three counts of second degree sodomy, four counts of use of a minor in a sexual performance, and one count of promoting a sexual performance by a minor. The jury recommended that the sentences be served consecutively for a total of two hundred years. Pursuant to the requirements of KRS 532.110(1)(c), the trial judge reduced the sentence to seventy years, the maximum allowed under the statute . An appeal of the conviction was originally considered in Chambers v. Commonwealth, 2001-SC-0088-MR (August 21, 2003). This Court determined that the trial court erred in denying Appellant's motion for a directed verdict on the four counts of use of a minor in a sexual performance . Slip op. at 6 . Accordingly, all four counts of use of a minor in a sexual performance were reversed and the case was remanded to the circuit court for re-sentencing in conformity with the opinion.

Chappell v. Com., 2003-SC-000454-MR -Not To Be Published,Reversing -- PDF

Alonzo Chappell was convicted of first-degree robbery and sentenced to serve ten years in the state penitentiary in 1998 . Soon after sentencing he was granted shock probation . Two years later the trial court revoked Chappell's probation because he robbed a bank while on probation . In its order, the trial court noted that Chappell's sentence was to run concurrently with the federal sentence that was to be imposed for the bank robbery later the same day. However, after being sentenced in federal court, Chappell was returned to state custody . The federal authorities declined to give credit for time served in state custody, and the state trial court declined to order Chappell's transfer to federal custody so that he could commence serving his federal sentence and thereby obtain benefit of the state court order giving credit for time served in federal custody.

Cherry v Com., 2004-SC-000143-MR - Not To Be Published, Affirming -- PDF

Appellant, Kendrick Cherry, was convicted of murder and tampering with physical evidence by the Graves Circuit Court. Appellant was sentenced to life imprisonment for murder and five years imprisonment for tampering with physical evidence ; he appeals to this Court as a matter of right, Ky. Const. § 110(2)(b) . For the reasons set forth herein, we affirm Appellant's convictions.

Christian V Com., 2004-SC-001055-MR -Not To Be Published, Affirming -- PDF

Appellant, David Christian, was convicted in the Hopkins Circuit Court of murder and sentenced to life imprisonment. He appeals to this Court as a matter of right claiming that three errors warrant reversal of his conviction : (1) exclusion of testimony by defense expert, Dr. Mathias Stricherz; (2) the trial court's refusal to instruct the jury on voluntary intoxication ; and (3) improper testimony by the Commonwealth's ballistics expert, Scott Boyle . Finding no error, we affirm Appellant's conviction and sentence .

Clair v Com,2001-SC-000209-MR -To Be Published,Reversing and Remanding-- PDF

Appellant, Michael D . St. Clair, was convicted of two counts of receiving stolen property over $100, criminal attempt to commit murder, second-degree arson, and capital kidnapping . He was sentenced to death for the kidnapping of Frank Brady, during which Brady was murdered . Appellant waived his right to jury sentencing on the non-capital charges, and agreed to a sentence of twenty years for attempted murder, twenty years for second-degree arson, and five years on each count of receiving stolen property over $100, for a total of fifty years. Appellant now appeals to this Court as a matter of right.'

Clemons v Com., 2003-SC-001040-MR - To Be Published, Affirming -- PDF

The Appellant, James G . Clemons, was convicted of manufacturing methamphetamine and trafficking in a controlled substance (methamphetamine) in the first degree, both of which are felonies. He was also convicted of two misdemeanors ; namely, possession of marijuana, and possession of drug paraphernalia . Clemons was sentenced to twenty years imprisonment on the manufacturing conviction and ten years on the trafficking conviction, the sentences to run consecutively for a total of thirty years . Two twelve-month sentences were imposed for the misdemeanor convictions which were ordered to run concurrently with the felony sentences. Clemons was also fined $500.00 for each misdemeanor conviction and $1,000.00 for the felony convictions.

Colston v. Com., 2005-SC-000038-MR -Not To Be Published,Affirming -- PDF

This is an appeal from the Owen Circuit Court's final judgment entered December 1, 2004, sentencing Appellant to a total of 35 years imprisonment on his guilty plea to two counts of first degree burglary, kidnapping, receiving stolen property and second degree burglary; and one count of first degree robbery, rape and sodomy. Appellant appeals to this Court as a matter of right, pursuant to Ky. Const. §110(2)(b), arguing the trial court abused its discretion in not allowing him to withdraw his guilty plea prior to final sentencing . We disagree, and affirm the trial court.

Com.v.A.W., A CHILD UNDER EIGHTEEN, 2003-SC-000424-DG - To Be Published, Affirming -- PDF

This is an appeal from the Court of Appeals, which upheld the Juvenile Court's exercise of contempt powers as punishment for violations of conditions of probation ; yet reversed the contempt sentence due to the absence of several due process safeguards during the hearing. A.W., a fourteen-year-old juvenile, was adjudicated a public offender on March 21, 2001 by the Campbell District Court, juvenile session, and given a thirty (30) day detention sentence, probated with conditions - two of which where "to abide by a nightly curfew" and "to receive no new charges." Less than two months later, in May of 2001, A .W . was charged with an additional count of Harassment. Then again, on June 24, 2001, the Department of Juvenile Justice (DJJ) filed an affidavit that A.W. had failed to abide by her curfew.

Com. v Berry, 2003-SC-000357-MR -To Be Published,Reversing -- PDF

Appellant, Gregory A. Berry, was convicted of second degree assault and being a persistent felony offender (PFO) in the first degree. The trial court entered judgment in accordance with the jury verdict and imposed the jury-recommended minimum sentence of ten years. Berry's conviction stemmed from an altercation with his former in-laws, Howard and Elaine McGregor. Berry's ex-wife, Kimberly Berry, was incarcerated at the time of the altercation . Most of her belongings remained in the home where Berry was living . Kimberly gave her mother a power of attorney to collect her property from the home. The McGregors arrived at Berry's home on February 5, 2000, around 9:00 a .m. to retrieve Kimberly's property because Berry was preparing to move .

Com. v C.J. A Child, 2002-SC-001009-MR -To Be Published, Affirming -- PDF -

In January 2001, C.J ., a student at Shawnee High School in Louisville, pulled a "butterfly knife" on another student during a verbal altercation . After being Mirandized, C.J. gave a statement admitting to having the knife on school property. When C.J. voiced an intention to kill himself, he was admitted to Norton-Kosair Hospital where he remained for eight days. C .J . thereafter resumed attendance at Shawnee High School . C.J . was subsequently charged with unlawful possession of a weapon on school property and second-degree wanton endangerment . At his arraignment in the juvenile session of the Jefferson District Court, the court denied the Commonwealth's motion to detain C .J ., and instead ruled that the case be resolved by informal adjustment pursuant to KRS 610.100(3).' The Commonwealth objected on the grounds that the victim, Shawnee High School, had not been notified or consulted as required by statute . Nonetheless, the juvenile court requested that a public defender step in and explain to C.J. the process of an informal adjustment. C.J . thereafter agreed to surrender his knife, to continue the counseling he had begun after the incident, and to perform ten hours of community service within thirty days.

Com. v, Fuartado 2003-SC-001022-MR - To Be Published,Reversing -- PDF -

Appellee, Joscelyn Fuartado, is a native and citizen of Jamaica . This Court granted discretionary review to determine whether failure of defense counsel to advise Appellee of potential deportation consequences is cognizable as a claim for ineffective counsel . In a decision designated for publication, a Court of Appeals panel vacated the trial court's denial of Appellee's post conviction relief from a 1997 guilty plea to marijuana trafficking . The trial court ruled that criminal defendants must be advised regarding direct but not collateral consequences of a guilty plea. It reasoned that since a federal civil immigration proceeding such as a deportation is clearly collateral as to guilt and outside the trial court's control or responsibility, failure of defense counsel to advise Appellee of potential deportation consequences is not cognizable as a claim for ineffective counsel . We agree and accordingly, we reinstate the judgment of the trial court.

Com. v. Gordin, 2003-SC-000517-MR -Not To Be Published, Affirming -- PDF

Appellee, Josiah Gordin, was convicted of First-Degree Manslaughter and First- Degree Robbery, and sentenced to two concurrent twenty-year sentences . The Commonwealth contends (1) that the trial court erred in its decision to dismiss at the close of the evidence a First-Degree Wanton Endangerment charge as being barred by double jeopardy, and (2) that the trial court erred in rejecting the jury's recommendation of consecutive sentences and instead imposing concurrent sentences . The dismissal was, in effect, an acquittal of Appellee on the wanton endangerment charge, and under Section 115 of the Kentucky Constitution, the Commonwealth cannot appeal from a judgment of acquittal . And a trial court is not required to follow the jury's sentencing recommendation . Accordingly, we reject the Commonwealth's claims of error and affirm the judgment.

Com. v, Leap 2004-SC-000138-MR - To Be Published, Reversing -- PDF

The Defendant-Appellee, Rickey D . Leap, was convicted of assault in the 4th degree, wanton endangerment in the 1St degree and of being a persistent felony offender (PFO) in the 1 St degree . Upon appeal, the Court of Appeals remanded Leap's convictions for wanton endangerment and as a PFO for further findings by the trial court regarding vacation of several of the convictions. The Commonwealth sought relief in this court and we granted discretionary review. We now reverse the Court of Appeals and reinstate the judgment of the trial court.

Com. v Kelly ,2004-SC-000385-DG - To Be Published, Reversing and Remanding -- PDF -

Appellee, Michael Kelly, was indicted on three counts of trafficking in a controlled substance and. one count of driving under the influence. Appellee moved to dismiss the indictments, arguing that the evidence supporting his indictments was seized in violation of his right to be free from unreasonable seizures. U .S . Const. amend . IV and XIV; Ky. Const. § 10 . The trial court granted Appellee's motion, finding that the evidence should be suppressed due to the fact that it was obtained as the result of an unlawful seizure . The Commonwealth appealed. The Court of Appeals affirmed the trial court's order in a two to one (2-1) vote.' We granted discretionary review and for the reasons set forth herein, we now reverse the decision of the Court of Appeals.

Com. v. Mitchell, 2003-SC-000927-DG - To Be Published, Reversing -- PDF

On February 15, 2001, Appellee, Lorrie Mitchell, sold six Oxycontin pills to police informant Kevin Bowling . Mitchell was thereafter indicted by a Floyd County Grand Jury on one count of first-degree trafficking in a controlled substance (Oxycontin). At trial, the Commonwealth played for the jury an audio recording of the undercover drug buy. In addition, Kentucky State Police Detective Randy Hunter, who was in charge of the investigation and who coordinated the undercover buy between Bowling and Mitchell, testified about the transaction, as well as about the effects of Oxycontin . The defense did not present any evidence, choosing instead to attack the quality of the audiotape and Bowling's credibility as a paid informant and former drug user. The jury returned a verdict of guilt and, pursuant to an agreement with the Commonwealth, Mitchell was sentenced to seven and a half years' imprisonment. The Court of Appeals reversed Mitchell's convictions and remanded the matter for a new trial. The three-judge panel found that the prosecutor's use of a "send a message" closing argument was improper, but unpreserved . The court declined to address the error under RCr 10 .26, determining that other errors rendered the analysis unnecessary. Specifically, the court opined that Detective Hunter's testimony as to the effects of Oxycontin on the human body was of "questionable relevance" because its admission made it no more or less likely that Mitchell sold Oxycontin to an undercover informant. And even if the Commonwealth could demonstrate that the nature of Oxycontin was relevant, only a qualified toxicologist or other expert could provide such testimony. Finally, the court held that it was improper for Detective Hunter to testify about prior drug transactions between Mitchell and Bowling because there was no question raised as to why the investigation proceeded in the manner that it did. The Court of Appeals concluded that although none of the errors warranted reversal in and of themselves, their cumulative effect denied Mitchell a fair trial. This Court thereafter granted the Commonwealth's motion for discretionary review. After hearing oral arguments and reviewing the record, we reverse the decision of Court of Appeals and reinstate the judgment and sentence of the Floyd Circuit Court. Additional facts are set forth as necessary.

Com v Mobley, 2003-SC-000807-DG - To Be Published, Reversing -- PDF

KRS 431 .005 authorizes a police office to arrest a person, inter alia, "without a warrant when a misdemeanor, as defined in KRS 431 .060, has been committed in his presence ." In the course of a routine weapons search of three men sitting in a parked truck, a police officer saw a crack pipe in plain view in the passenger side floor near where Appellee, Ronnie Mobley, was sitting . The officer arrested the driver and the two passengers of the truck. A later search of the truck and its occupants revealed crack cocaine and more drug paraphernalia . The question we must answer is whether discovery by a police officer of a crack pipe in plain view constitutes the commission of a misdemeanor in the police officer's presence authorizing the arrest of a passenger in close proximity to the drug paraphernalia . The Supreme Court of the United States has recently spoken to this issue in Maryland v. Pringle and held that the Fourth Amendment of the United States Constitution is not violated by an arrest in such circumstances.' As this Court has held Section 10 of the Kentucky Constitution to be consonant with the Fourth Amendment, Maryland v. Pringle is proper authority for our conclusion.

Com v Priddy, 2003-SC-000041-DG - To Be Published, Reversing -- PDF

Appellee, Lloyd A . Priddy, sought to suppress the fruits of a search of his person by a police officer during the course of a stop of his vehicle . In denying the motion, the trial court made findings - which Appellee argues were contained only in the uniform citation issued by the officer - that the stop, and thus the search, was justified pursuant to Terry v. Ohio, 392 U .S . 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) . The citation had been filed in the court record and was used and referred to in the hearing by the parties and the court, but it was never formally filed as an exhibit to any record created for the hearing. Not having been filed of record in the hearing, the Appellee argues the officer's written statement in his citation could not be relied on for the court's findings of facts. Since the citation' was used (and testified to) during the hearing, it was not error for the court to have considered its contents, even though, through fair inference, the officer's actual testimony covered the same information.

Com. V. Sowell, 2003-SC-000355-MR -To Be Published, Affirming -- PDF

KRS 500.050(2) provides that a misdemeanor prosecution must be commenced within one year after the offense is committed . A misdemeanor prosecution for assault was timely commenced against Appellee, Robert Sowell, but was dismissed without prejudice due to the inability of the Commonwealth to produce the complaining witness at trial. More than ten days after entry of the order of dismissal, the case was redocketed via motion, and again set for trial . The question we must address is whether a case dismissed without prejudice may be redocketed and proceed as if there had been no dismissal or whether new process is required. We hold that a dismissal without prejudice is a final and appealable order, and that after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged. Therefore, we affirm the Court of Appeals.

Com. V Stacey, 2004-SC-000358-DG - To Be Published, Reversing -- PDF

In August 1999, Roy Stacey pled guilty in the Nelson Circuit Court to five counts of third-degree rape, five counts of third-degree sodomy, and to being a first-degree persistent felony offender. Pursuant to a plea agreement, Stacey was sentenced to ten concurrent five-year terms, enhanced to fifteen years' imprisonment by virtue of the PFO charge. Stacey's sentence was also ordered to run concurrently with three prior Bullitt County convictions, as well as a sentence on another contemporaneous Jefferson County charge . During the plea colloquy, Stacey stated under oath that he understood the charges against him . When asked if he was under the influence of alcohol or medication, Stacey responded that he had only taken medication for chemotherapy, but it would not affect his ability to think or reason . Further, Stacey divulged that he had, in the distant past, suffered from some "alcohol-related" psychological and emotional problems. Based on the colloquy, the trial court found Stacey competent to enter a guilty plea . The trial court thereafter informed Stacey of his constitutional rights and asked him if he was waiving those rights by pleading guilty. Stacey responded in the affirmative . The trial court ruled that Stacey's plea was intelligent, knowing, and voluntary .

Cook v. Com., 2003-SC-000724-MR - To Be Published, Affirming -- PDF

Appellant, Eric Cook, was convicted by a Clinton Circuit Court jury of First- Degree Sodomy and sentenced to twenty years in prison . Appellant now raises four claims of error, none of which was raised at trial . Because none of these claims rises to the level of palpable error, we decline to review Appellant's claims of error, and we affirm Appellant's conviction .

Crisp v. Com., 2004-SC-000058-MR - Not To Be Published, Affirming -- PDF

Appellant, James Crisp, was convicted of first-degree robbery and two counts of first-degree wanton endangerment and received a sentence of twenty-five years' imprisonment. His appeal comes before this Court as a matter of right. Ky. Const. §110(2)(b) . Appellant asserts two trial court errors: 1) that the convictions for firstdegree wanton endangerment violated double jeopardy protection, and 2) that the admission of inaccurate parole eligibility information violated his due process rights. We affirm.

Cook v. Com., 2004-SC-000853-MR - Not To Be Published, Affirming -- PDF

This appeal is from a final judgment and sentence entered on September 7, 2004. The jury returned a verdict for a 50 year sentence and the judge sentenced Cook for a term of 50 years in prison . The questions presented are whether it was error not to admit sentences in similar vehicle homicide cases thereby depriving the defendant of his right to introduce evidence in mitigation and whether the 50 year sentence was cruel and unusual punishment in that it is grossly disproportionate to the offense committed and is in excess of 20 years . Originally, Cook had been convicted of the death of a pregnant woman in the front yard of her home when his 1984 Chevrolet Corvette drove into their yard striking and killing the victim . There was overwhelming evidence of guilt resulting from intoxication on the part of the driver, and additional facts were developed in the opinion which are not necessary to recount here . In the case of Cook v. Commonwealth , 129 S.W.3d 351 (Ky. 2004), this Court affirmed the conviction of Cook for wanton murder but vacated his sentence and remanded the case for a new penalty phase. A new sentencing jury heard arguments with regard to the sentence and returned to the trial judge a sentence of 50 years in prison . This appeal followed.

Crumes v. Com., 2003-SC-000336-MR -Not To Be Published, Reversing and Remanding -- PDF

A Kenton Circuit Court jury convicted Appellant, Charles Crumes, of first-degree robbery and of being a persistent felony offender in the first degree . He was sentenced to twenty years in prison and appeals to this court as a matter of right. Ky. Const. § 110(2)(b) . He asserts three claims of reversible error, viz: (1) failure to direct a verdict of acquittal on the charge of robbery in the first degree; (2) erroneous jury instruction on robbery in the first degree; and (3) failure to instruct the jury on lesser included offenses. The trial court's failure to instruct the jury on the lesser included offenses of robbery in the second degree and menacing requires reversal for a new trial . No other errors occurred .