JAMES McINTIRE v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 8, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1935-MR
JAMES McINTIRE
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 96-CR-103
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
**
BEFORE:
**
**
**
**
KNOPF, MILLER, and SCHRODER, Judges.
MILLER, JUDGE.
James McIntire brings this appeal from a July 2,
1996, judgment of the Kenton Circuit Court.
On
March
8,
1996,
the
Grand
We affirm.
Jury
of
Kenton
County
indicted appellant for the offense of first-degree rape (Ky. Rev.
Stat. (KRS) 510.040).
On May 6, 1996, a plea agreement was reached
with the Commonwealth, and appellant pled guilty to the reduced
offense of sexual abuse in the first-degree (KRS 510.110).
Commonwealth
imprisonment.
recommended
a
term
of
three
and
one-half
The
years
On June 4, 1996, and prior to final sentencing upon
the guilty plea, appellant moved the court for leave to withdraw
his plea.
The circuit court overruled appellant's motion on June
10, 1996, and on July 2, 1996, appellant was sentenced accordingly.
This appeal followed.
Appellant claims that his guilty plea was not voluntary
and, thus, the circuit court should have granted his motion to
withdraw.
He further contends that the record fails to disclose
whether a hearing was conducted upon his motion to withdraw.
We
note that the circuit court's calendar indicates that a hearing
was, indeed, held. As appellant has the burden of establishing the
record on appeal (Ky. R. Civ. P. 75.01 and Fanelli v. Commonwealth,
Ky., 423 S.W.2d 255 (1968)), we are unable to conclude that the
court abused its discretion in denying appellant's motion to
withdraw his guilty plea.
Ky. R. Crim. P. 8.10, and Anderson v.
Commonwealth, Ky., 507 S.W.2d 187 (1974).
For the foregoing reasons, the judgment of the circuit
court is affirmed.
ALL CONCUR.
-2-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paula Fitzgerald
Louisville, KY
A. B. Chandler III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, KY
-3-
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