RENDERED: MAY 26, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0410-MR

KYREK PURDIMAN APPELLANT 

v. 

APPEAL FROM DAVIESS CIRCUIT COURT

HONORABLE LISA PAYNE JONES, JUDGE

ACTION NO. 18-CR-00256

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Kyrek Purdiman, pro se, brings this appeal from a March 3, 

2021, order of the Daviess Circuit Court denying his motion pursuant to Kentucky 

Rules of Criminal Procedure (RCr) 11.42 to vacate his judgment and sentence of 

imprisonment. We affirm.

On or about December 30, 2017, Jason Junkerman went out drinking 

with a group of acquaintances, including Kyrek Purdiman, Jeffery Bond, and 
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Ronnie Bailey. Around 2:00 a.m., the group left a bar in two vehicles and stopped 

at a gas station before heading to Bailey’s residence. Upon leaving the gas station,

Junkerman got into a green Ford Taurus driven by Purdiman; Bond was in the 

front passenger seat. According to Bailey’s security camera footage at Bailey’s 

residence, the Taurus pulled into Bailey’s driveway around 2:30 a.m. Shortly 

thereafter, Bailey came out of his residence and discovered Junkerman lying alone

in the driveway in a pool of blood. Bailey called 911. Junkerman was taken to the 

hospital by ambulance and put into a medically induced coma. Due to the extent 

of Junkerman’s injuries, emergency room staff initially believed Junkerman had 

suffered a gunshot wound. It was later determined that Junkerman’s injuries were 

caused by a violent assault. 

Subsequent investigation revealed that Purdiman and Bond used 

Junkerman’s debit card to purchase fast food shortly after Junkerman was 

assaulted. Bond also purchased items at a convenience store using Junkerman’s 

bank card. Then, Bond and Purdiman were both seen on security footage selecting 

other items to purchase at the convenience store. Junkerman’s bank card was 

presented as payment for the second purchase, but the transaction was cancelled 

due to insufficient funds. 

Purdiman was subsequently indicted upon robbery in the first degree, 

assault in the first degree, tampering with physical evidence, and fraudulent use of 
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a credit card under $500.1 Pursuant to a plea agreement with the Commonwealth, 

Purdiman entered a plea of guilty to the indicted charges pursuant to North 

Carolina v. Alford, 400 U.S. 25 (1970). Purdiman was sentenced to a total of 

twelve-years’ imprisonment. 

Purdiman subsequently filed a motion to modify his sentence of 

imprisonment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. By 

order entered November 7, 2019, the circuit court denied Purdiman’s CR 60.02

motion. 

Then, on September 4, 2020, Purdiman filed a motion to vacate the 

judgment and sentence of imprisonment pursuant to RCr 11.42. By order entered 

March 3, 2021, the circuit court denied Purdiman’s RCr 11.42 motion without an 

evidentiary hearing. This appeal follows.

When a guilty plea has been entered and movant collaterally attacks 

the judgment by filing a motion pursuant to RCr 11.42, movant must demonstrate:

(1) that counsel made errors so serious that counsel’s 

performance fell outside the wide range of professionally 

competent assistance; and (2) that the deficient 

performance so seriously affected the outcome of the 

plea process that, but for the errors of counsel, there is a 

1

Jeffery Bond was also indicted upon robbery in the first degree, assault in the first degree, 

tampering with physical evidence, and fraudulent use of a credit card under $500 in relation to 

the Kyrek Purdiman incident. Bond subsequently pleaded guilty to facilitation to commit 

robbery in the first degree, assault in the second degree, tampering with physical evidence, and 

fraudulent use of a credit card under $500.
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reasonable probability that the defendant would not have 

pleaded guilty, but would have insisted on going to trial.

Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). 

As Purdiman’s RCr 11.42 motion was denied without an evidentiary 

hearing, “[o]ur review is confined to whether the motion on its face states grounds 

that are not conclusively refuted by the record and which, if true, would invalidate 

the conviction.” See Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). 

However, an evidentiary hearing is not necessary where the defendant’s 

allegations, even if true, would be insufficient to invalidate his conviction. Harper 

v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998) (citation omitted). 

Purdiman asserts trial counsel was ineffective for failing to inform 

Purdiman that had he proceeded to trial, he would have been entitled to a jury 

instruction upon theft by unlawful taking as a lesser included offense of robbery in 

the first degree. For the following reasons, we disagree. 

Robbery in the first degree is codified in KRS 515.020(1), which

provides, in relevant part:

(1) A person is guilty of robbery in the first degree 

when, in the course of committing theft, he or she uses or 

threatens the immediate use of physical force upon 

another person with intent to accomplish the theft and 

when he or she:

(a) Causes physical injury to any person who is not a 

participant in the crime[.]
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Theft by unlawful taking (TBUT), on the other hand, is codified in KRS 514.030,

and provides, in relevant part:

(1) Except as otherwise provided in KRS 217.181, a 

person is guilty of theft by unlawful taking or disposition 

when he or she unlawfully:

(a) Takes or exercises control over movable property 

of another with intent to deprive him or her thereof[.]

It is well-settled that TBUT is a lesser included offense of robbery in 

the first degree. Mack v. Commonwealth, 136 S.W.3d 434, 436 (Ky. 2004). 

However, the inquiry does not end there. Even if Purdiman had been informed by 

counsel that TBUT was a lesser included offense of robbery in the first degree, 

there is not a reasonable probability that Purdiman would not have pleaded guilty, 

but rather would have insisted upon going to trial. See Bronk, 58 S.W.3d at 486-

87.2

In this case, Purdiman failed to identify any facts that would have 

made it reasonable for a jury to believe that he unlawfully took Junkerman’s debit 

card (under a TBUT instruction), without resort to the use of physical force upon 

Junkerman as required by the robbery instruction. The extent of Junkerman’s 

injuries clearly demonstrate that physical force was used upon Junkerman causing 

2

“However, an instruction on a lesser included offense is required only if, considering the 

totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the 

greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the 

lesser offense.” Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky. 2003).
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physical injury. There was no evidence that Junkerman had lost possession of his 

debit card before the robbery. Furthermore, Purdiman was facing the possibility of 

a 45-year sentence of imprisonment upon the indicted charges. Purdiman’s plea 

agreement, on the other hand, provided for a total sentence of twelve-years’

imprisonment. Therefore, we believe Purdiman failed to demonstrate there is a 

reasonable probability that if he had known about the possible jury instruction 

upon the lesser included offense he would not have pleaded guilty, but would have 

insisted upon going to trial. 

Purdiman also contends that trial counsel was ineffective for failing to 

inform him about the availability of the “defense of self-protection against 

violence, sexual threats KRS 503.050(2), that would have exonerated him of the 

Assault 1st Degree charge.” Purdiman’s Brief at 8.

KRS 503.050 provides, in relevant part:

(2) The use of deadly physical force by a defendant upon 

another person is justifiable under subsection (1) only 

when the defendant believes that such force is necessary 

to protect himself against death, serious physical injury, 

kidnapping, sexual intercourse compelled by force or 

threat, felony involving the use of force, or under those 

circumstances permitted pursuant to KRS 503.055.

KRS 503.050(2). Had Purdiman been aware of the defense of self-protection, he 

claims he would not have pleaded guilty to assault in the first degree but would 

have insisted upon going to trial.
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We find no merit in this argument. Even if Purdiman had been 

successful, upon a theory of self-protection, he still faced a sentence of up to 

twenty-years’ imprisonment upon the first-degree robbery charge and up to five 

years on the tampering with physical evidence charge. We again must emphasize 

that Purduman’s guilty plea resulted in a total of only twelve-years’ imprisonment. 

Therefore, we do not believe that if Purdiman had known about the possible selfprotection defense that he would have insisted upon going to trial, rather than 

accepting the plea bargain.

Purdiman also makes several other assertions of error on appeal. He 

claims: that counsel failed to inform him of the affirmative defense of assault 

under extreme emotional disturbance; counsel failed to retain an expert to evaluate 

and challenge the evidence regarding the victim’s location in the pool of his own 

blood; and counsel failed to investigate the evidence for first-degree robbery to 

determine if there was any intent on Purdiman’s part to commit a theft. However, 

these issues were not raised in Purdiman’s RCr 11.42 motion below and were not 

addressed by the circuit court’s March 3, 2021, order denying him RCr 11.42 

relief.

It is well-established that where an issue was not presented to the 

court below and was not addressed in the order appealed from, there is nothing for 

this Court to review. Hensley v. Commonwealth, 305 S.W.3d 434, 436 (Ky. App. 
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2010) (citing Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976),

overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 

2010)). In fact, it has been stated that an appellant will not be permitted to “feed 

one can of worms to the trial judge and another to the appellate court.” Hensley, 

305 S.W.3d at 436. Simply stated, if an allegation of ineffective assistance of 

counsel is advanced for the first time on appeal, it generally will not be addressed 

by this Court. Id.

In the case sub judice, the above three issues were not raised by 

Purdiman before the circuit court and thus were not addressed by its March 3, 

2021, order denying Purdiman’s RCr 11.42 motion. As such, we decline to review 

these contentions of error. See Hensley, 305 S.W.3d at 436.

Purdiman also asserts that the circuit court erred by denying his 

motion for post-conviction relief because of the cumulative effect of trial counsel’s 

errors. However, since we have found no individual error in this case, we likewise

cannot find any cumulative error. Furnish v. Commonwealth, 267 S.W.3d 656, 

668 (Ky. 2007). Thus, this argument also fails.

For the foregoing reasons, the order of the Daviess Circuit Court is 

affirmed.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Kyrek Purdiman, Pro Se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Frankfort, Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky