March 22, 2012 SCOKY Minutes

Decisions: 23 through 41
19 decisions with 13 published

Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)

Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS
(Number, NAME, ISSUE AND LINK TO FULL TEXT):

23. Criminal Law. Juvenile Code. Jurisdiction.
JAMES JACKSON V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING ALL SITTING. ALL CONCUR.
2009-SC-000115-DG MCCRACKEN TO BE PUBLISHED

Questions Presented: Criminal Law. Juvenile Code. Jurisdiction. Preservation.  Issues include whether a guilty plea waives juvenile’s right to later challenge transfer from juvenile court to circuit court or whether the issue is one of subject matter jurisdiction; and whether transfer based upon an “enhanced charge” because of juvenile’s possession of firearm was improper.

24. Constitutional Law. Prevailing Wage Act.
TECO MECHANICAL CONTRACTOR, INC. V. COMMONWEALTH OF KENTUCKY, ENVIRONMENTAL AND PUBLIC PROTECTION CABINET, ET AL.
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING ALL SITTING. ALL CONCUR.
2009-SC-000821-DG FRANKLIN TO BE PUBLISHED

Questions Presented: Constitutional Law. Prevailing Wage Act. Issues include constitutional challenges to the prevailing wage laws, KRS 337.505- 337.550.

25.  CRIMINAL LAW.  Crimes.
BILLY MASH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING ALL SITTING. ALL CONCUR.
2010-SC-000584-MR MCCRACKEN TO BE PUBLISHED

Questions Presented: First-degree sodomy-20 years.  Evidence presented was insufficient to support a fair cross-section challenge to the jury panel.  A juror’s negative demeanor was a sufficient race-neutral reason for the prosecutor’s use of a peremptory challenge to strike the juror from the venire.  Although not an element of first-degree sodomy, the Commonwealth produced sufficient evidence of penetration to meet the unnecessary specific element of the jury instruction.  No evidentiary foundation was presented for an instruction on sexual abuse.

26. Criminal Law. Indigent or Needy Person. Court Costs.
DESEAN MAYNES V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING ALL SITTING. ALL CONCUR.
2010-SC-000681-DG JEFFERSON TO BE PUBLISHED

Questions Presented: Criminal Law. Indigent or Needy Person. Court Costs. The issue is whether the trial court can order a defendant, previously found to be indigent, to pay court costs as part of defendant’s final sentencing.

27. CRIMINAL LAW. MURDER.
RONALD COPLEY V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING ALL SITTING. ALL CONCUR. CUNNINGHAM, J. CONCURS BY SEPARATE OPINION IN WHICH NOBLE AND SCHRODER, JJ., JOIN.
2011-SC-000063-MR RUSSELL

TO BE PUBLISHED Questions Presented: Murder-20 years.  Though the affidavit in support of the search warrant was not properly sworn before an individual authorized by a judge of the county to administer oaths pursuant to RCr 2.02, suppression was not warranted because the error was not of constitutional magnitude, the error did not prejudice the defendant and there was no deliberate disregard of the Rules.

28. WORKERS COMPENSATION.  MAXIMUM BENEFITS.
RANDY LEWIS V. FORD MOTOR COMPANY; HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT AFFIRMING ALL SITTING. ALL CONCUR.
2011-SC-000294-WC FROM COURT TO BE PUBLISHED OF APPEALS

Questions Presented: Workers’ Compensation.  Whether the maximum benefit permitted by KRS 342.730(1)(a) applies only to an individual award or also applies to benefits payable simultaneously under multiple partial disability awards.

29.  WORKERS COMPENSATION. POST-SETTLEMENT SURGERY COSTS.
JOHN A. RICHEY; HARNED BACHERT & DENTON, LLP; AND NORMAN E. HARNED  V. PERRY ARNOLD, INC.; HONORABLE JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT AFFIRMING IN PART AND REVERSING IN PART ALL SITTING. ALL CONCUR.
2011-SC-000326-WC FROM COURT TO BE PUBLISHED OF APPEALS

Questions Presented: Workers’ Compensation.  Whether the parties’ settlement agreement barred a future TTD claim; whether the employer’s defense to a motion to compel payment for post-settlement surgery was unreasonable and warranted sanctions because the employer failed to file a timely medical ALL SITTING. ALL CONCUR. dispute and motion to reopen after refusing to pre-authorize the surgery.

30. CRIMINAL LAW. PROBATION REVOCATION.
WILLIAM DUSTIN GOLDSMITH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ALL SITTING. ALL CONCUR.
2009-SC-000768-DG HICKMAN

TO BE PUBLISHED Questions Presented: Criminal Law. Probation Revocation. Issues relate to the probation revocation process and the length of sentence imposed, specifically three consecutive five-year terms for Class D felonies, to be served consecutively with similar terms in a neighboring county.

31. CRIMINAL LAW.  ROBBERY. SPEEDY TRIAL.
JOHNNY SMITH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING IN PART AND REVERSING AND REMANING IN PART ALL SITTING. ALL CONCUR.
2011-SC-000144-MR GREENUP TO BE PUBLISHED

Questions Presented: First-degree robbery, unauthorized use of a motor vehicle and PFO II – 30 years. Speedy Trial Analysis.  Trial court properly granted Commonwealth’s motion for a continuance in order to perform DNA testing.  Eyewitness testimony was sufficient to defeat a motion for directed verdict.  Trial court’s imposition of court costs remanded for findings, as set out in Maynes v. Commonwealth, Case No. 2010- SC-000681-DG.  Language of the restitution order was specific and was enforceable.

32. CRIMINAL LAW. PFO.
ROBERT DWAYNE SMITH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – AFFIRMING IN PART AND VACATING AND REMANDING IN PART ALL SITTING. ALL CONCUR.
2011-SC-000285-MR JEFFERSON TO BE PUBLISHED

Questions Presented: First-degree robbery and PFO I – 32 years. While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless.  Case remanded for entry of a new judgment excluding surplus provision.

33. CRIMINAL LAW. EVIDENCE – 404(B) PRIOR BAD ACTS.
STEPHEN DRIVER V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – REVERSING AND REMANDING MINTON, C.J., ABRAMSON, CUNNINGHAM AND NOBLE, JJ., CONCUR. SCHRODER, J., CONCURS IN PART AND DISSENTS IN PART, AGREEING WITH THE MAJORITY  THAT THE ADMISSION OF EVIDENCE OF PRIOR BAD ACTS RELATING TO APPELLANT’S EX-WIFE WAS ERROR
2009-SC-000639-DG TO BE PUBLISHED MARSHALL

Questions Presented: First-degree assault-15 years.  KRE 404(b). Because the evidence of prior bad acts committed by the defendant against his ex- wife were inadmissible and the error may have swayed the verdict, the assault conviction is reversed and remanded for a new trial.  Prior bad acts committed against the victim were properly admissible. Evidence instruction.  Upon retrial, prosecutor’s comments in closing presented did not support an EED BUT, BELIEVING THAT THE ERROR WAS HARMLESS IN LIGHT OF THE EVIDENCE OF VERA’S INJUg argument should be limited.

34. APPEALS.
JANE COLLEEN YOUNGER V. JEFFERSON EVERGREEN GROUP, INC., UNIVERSITY MEDICAL CENTER, INC., WEHR CONSTRUCTORS, INC.
OPINION OF THE COURT BY JUSTICE CUNNINGHAM – REVERSING AND REMANDING ALL SITTING. ALL CONCUR.

Questions Presented: Appeals. Civil Procedure. Issues include whether the trial court’s grant of CR 60.02 relief may be overturned by appellate court in a ruling that dismisses the appeal as untimely.

35. CRIMINAL LAW.  HAMMER CLAUSE.
MICHAEL KNOX V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – REVERSING AND REMANDING MINTON, C.J., ABRAMSON, NOBLE, SCHRODER AND SCOTT, JJ., CONCUR. CUNNINGHAM, J., DISSENTS BY SEPARATE OPINION.
2010-SC-000816-MR JEFFERSON TO BE PUBLISHED

Questions Presented: Eight counts of second-degree robbery-20 years.  Hammer Clause. While the Court did not lay down a rule barring hammer clauses from plea agreements, it held that a judge’s commitment to impose a sentence based upon a defendant’s breach of a hammer clause condition in a guilty plea, coupled with the imposition of that sentence without proper consideration of the other relevant factors, is an abuse of judicial discretion.

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