DONALD NEWCOMB v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 26, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
97-CA-0726-MR
DONALD NEWCOMB
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
INDICTMENT NO. 92-CR-61
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * *
WILHOIT1, Chief Judge; COMBS and JOHNSON, Judges.
BEFORE:
WILHOIT, CHIEF JUDGE.
The appellant, Donald Ray Newcomb, filed
a motion in the Pulaski Circuit Court styled "Petition for Court
Order to Correct Presentence Investigation Report."
The trial
court dismissed the motion without an evidentiary hearing.
The appellant was convicted of first-degree assault and
of being a first-degree persistent felony offender.
The
conviction was affirmed by the Kentucky Supreme Court on May 24,
1994.
The trial court subsequently denied an RCr 11.42 motion;
this ruling was affirmed by this court's opinion rendered on
December 22, 1995.
petition
Subsequently, the appellant filed the
seeking correction of his Presentence Investigation
Report (PSI).
1
This opinion was prepared and concurred in prior to Chief
Judge Wilhoit's retirement on November 15, 1997. Release of the
opinion was delayed by normal administrative handling.
As required by KRS 532.050 prior to sentencing, the
trial court was furnished a PSI report which contained a list of
numerous prior arrests.
Of those prior arrests, the appellant
complains that the March 9, 1989, and October 23, 1990, flagrant
non-support charges are inaccurate.
The PSI report shows that
the 1989 charge was dismissed and the 1990 charge was amended to
non-support.
The trial court did not consider these errors in
sentencing.
A defendant is afforded a fair opportunity to
controvert the factual information contained in a PSI report
prior to his sentencing.
Commonwealth v. Bush, Ky., 740 S.W.2d
943 (1987), citing KRS 532.050(4).
In his petition, the
appellant neither denies that he was furnished such an
opportunity nor explains why he failed to avail himself of it at
the time of sentencing.
We find no error in the trial court's
dismissal of the petition.
Of course, if an erroneous PSI report is ever used
against the appellant in the future, he will be given a new
opportunity to controvert it.
The order of the Pulaski Circuit Court denying
appellant's motion is affirmed.
-2-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald Ray Newcomb, Pro Se
Northpoint Training Center
Burgin, Kentucky
A. B. Chandler III
Attorney General
Carol C. Ullerich
Assistant Attorney General
Frankfort, Kentucky
-3-
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