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Cherry v. Commonwealth

Court of Appeals of Kentucky

February 16, 2018

JOHN CHERRY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA R. GOODWINE, JUDGE ACTION NO. 11-CR-00631

          BRIEF FOR APPELLANT: John Cherry, Pro Se LaGrange, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

          OPINION AFFIRMING

          LAMBERT, J., JUDGE.

         John Cherry appeals from the Fayette Circuit Court order denying his motion for Kentucky Rule of Criminal Procedure (RCr) 11.42 relief. We affirm.

         Cherry was convicted of one count each of murder, first-degree wanton endangerment, second-degree unlawful imprisonment, carrying a concealed deadly weapon, third-degree trafficking in a controlled substance, trafficking in marijuana (less than eight ounces), and possession of a controlled substance not in its original container. Cherry was sentenced to life imprisonment. His conviction was upheld on direct appeal in Cherry v. Commonwealth, 458 S.W.3d 787 (Ky. 2015). On August 27, 2015, Cherry filed a verified motion for RCr 11.42 relief, alleging that he received ineffective assistance of trial counsel. Cherry also requested an evidentiary hearing. Following a supplemented motion (wherein it was alleged that Cherry received ineffective assistance of counsel at the appellate level as well) and the Commonwealth's response, the Fayette Circuit Court, without holding an evidentiary hearing, entered its order denying Cherry's requested relief on February 28, 2017. Cherry appeals from that order.

         The facts underlying the convictions are repeated from the Kentucky Supreme Court's opinion on direct appeal, namely:

Cherry testified that the events in this case arose while he was in the midst of a multiple-day "bender" that took place from Friday, March 18, 2011, to early Sunday, March 20, 2011. He testified that he did not sleep from the time he awoke on Friday morning until he was booked into jail after his arrest Sunday morning and that he had used copious amounts of drugs during this period.
As part of the bender, Cherry spent Saturday evening and early Sunday morning ingesting a variety of intoxicating substances with friends. He began the night with his friend, Mike Maudlin, with whom he went to a bar in Lexington. At around 2:00 a.m., another friend, Richie Perez, picked them up from the bar and drove them to Maudlin's home. Throughout the night, Cherry and his friends drank alcohol, smoked marijuana, used cocaine, and took prescription pills, including Klonopin.
Shortly after arriving at Maudlin's, Cherry called his cocaine dealer, who lived in a Hedgewood Court apartment in the Woodhill subdivision. Cherry tried to get Maudlin or Maudlin's roommate to drive him to Hedgewood Court, but both declined. And Maudlin took a Klonopin and fell asleep shortly thereafter. Cherry then called for a taxi from Yellow Cab of Lexington. Amine Lemghaili was dispatched and arrived at Maudlin's residence to pick up Cherry at 3:09 a.m.
At 3:19 a.m., Lemghaili's taxi pulled into the Hedgewood Court parking lot. Due to inconsistencies between Cherry's statements to police and testimony at trial, what happened next is unclear, but it is undisputed that Cherry killed Lemghaili by shooting him in the back of the head with a .38-caliber revolver that belonged to Maudlin. Around 3:20 a.m., a resident of Hedgewood Court heard a gunshot followed by an engine accelerating. Surveillance footage showed Cherry walking from Hedgewood Court across some basketball courts toward Osage Court at 3:21 a.m.
Cherry's flight from the scene first led him to a friend's house nearby. The friend was unhappy with Cherry for coming to his house and knocking on his door at that hour, and Cherry was forced to leave shortly after arriving.
At 3:40 a.m., Cherry called Perez, who also lived nearby on Osage Court, but Perez did not answer. Sometime after making this call, Cherry met up with another friend, "AK." Because Cherry could not get in touch with Perez, he asked AK to walk to Perez's house and tell Perez to come ...

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