JAMES FRANKLIN PAYTON, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 13, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000080-MR
JAMES FRANKLIN PAYTON, JR.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 88-CR-000345
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
MILLER, JUDGE: James Franklin Payton, Jr., brings this appeal
from a November 14, 1997 order of the Jefferson Circuit Court.
We affirm.
In February 1988, the Jefferson County Grand Jury
indicted appellant upon the offense of trafficking in a
controlled substance, cocaine; receiving stolen property over
$100.00; sale of or possession with intent to sell marijuana; and
of being a persistent felony offender in the second degree.
It
appears that appellant entered into a plea agreement with the
Commonwealth and pled guilty to the charges of trafficking in a
controlled substance, illegal possession of a controlled
substance, and theft by unlawful taking under $100.00.
sentenced to a total of twenty years' imprisonment.
He was
In October
1997, appellant filed a pro se Rules of Criminal Procedure (RCr)
11.42 motion to vacate.
Therein, the petitioner claimed that he
did not knowingly and intelligently enter the guilty plea.
Specifically, he claimed that the “drug test attached clearly
shows that the substance DID NOT contain any controlled
substance.”
On November 14, 1997, the circuit court denied
appellant's RCr 11.42 motion without a hearing.
This appeal
followed.
Appellant contends that the circuit court committed
reversible error by denying his RCr 11.42 motion without a
hearing.
Specifically, he contends that:
1. The attorney was ineffective for
promising probation. The prejudice from his
action resulted in the appellant being
sentenced to 5 years, without the option to
withdraw his plea agreement.
2. The attorney was ineffective for failing
to file a motion in court or making an oral
motion regarding the appellants option to
withdraw his plea. The prejudice resulted in
the appellant receiving [the] 5 year sentence
without the option of withdrawing his plea.
3. The attorney was ineffective for allowing
the consolidation of 88-0345 and 89-0290.
This was probably the reason the court denied
the probation and ordered incarceration
instead of probation.
4. The attorney was ineffective for coercing
the appellant to plead guilty. The attorney
told the appellant is [sic] he didn't plead
guilty the commonwealth would introduce
evidence (even if it was false) to convict
him. The prejudice occurred when the
-2-
appellant believed him and plead [sic] guilty
resting on incorrect advice.
A review of the record reveals that these issues were
not brought in appellant's RCr 11.42 motion before the circuit
court.
Appellant raises these issues for the first time in this
appeal.
It is a well-established rule of law that an appellate
court can review only issues presented to and ruled upon by the
circuit court.
(1969).
See Brister v. Commonwealth, Ky., 439 S.W.2d 940
We are thus unable to reach the merits of this appeal,
and, as such, summarily affirm same.
Id.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James Franklin Payton, Jr.
Pro Se
Cardinal Unit
Lexington, KY
A. B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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