BLEVINS (PAUL) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001318-MR
PAUL BLEVINS
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 01-CR-00157
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
NO. 2006-CA-001642-MR
PAUL A. BLEVINS
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 01-CR-00159
COMMONWEALTH OF KENTUCKY
OPINION
AFFIRMING
** ** ** ** **
APPELLEE
BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
NICKELL, JUDGE: Paul Allen Blevins (Blevins), pro se, has appealed from an
order of the Laurel Circuit Court partially denying his RCr2 11.42 motion for postconviction relief entered prior to holding an evidentiary hearing on limited issues,
and from an order from the same court fully denying his RCr 11.42 motion
following the evidentiary hearing.3 Blevins has separately appealed from the
Laurel Circuit Court’s order in a different indictment denying his RCr 11.42
motion without first conducting a hearing. Blevins argues the circuit court erred
by not holding a full and fair evidentiary hearing on all of the issues raised in his
first motion and not conducting any evidentiary hearing on his other motion.
Having concluded the trial court did not err in denying Blevins’ claims of
ineffective assistance of counsel, we affirm.
This appeal stems from two convictions following jury trials for two
convenience store robberies. Following the first jury trial, Blevins was convicted
under Indictment No. 01-CR-000157 of two counts of robbery in the first degree4
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
2
Kentucky Rules of Criminal Procedure.
3
The circuit court entered an order on August 30, 2005, denying all but two of Blevins’ claims
for ineffective assistance of counsel without conducting an evidentiary hearing, but scheduled a
hearing on May 22, 2006, to address the two remaining claims. Following the hearing, the
circuit court denied the remaining claims.
4
KRS 510.020, a Class B felony.
-2-
and being a persistent felony offender in the first degree (PFO I).5 The trial court
imposed the sentenced fixed by the jury. Blevins was sentenced to ten years on
each robbery count, each enhanced to twenty years by virtue of the PFO I
conviction, to run consecutively for a total sentence of forty years’ imprisonment.
The Supreme Court of Kentucky unanimously affirmed Blevins’ convictions on
direct appeal.6 The facts underlying these convictions were set forth by the
Supreme Court as follows:
An employee of the Tobacco Outlet testified that on May
21, 2001, an individual with a stocking over his face
entered the building armed with a knife and robbed the
store. She also testified that the robber took money from
a customer who was there buying lottery tickets. At trial,
the employee unequivocally identified the robber as
Blevins. She explained that the stocking he wore did not
distort his face because it was a nude color and was not
on tight.
Another witness who was working construction near the
Tobacco Outlet testified that he encountered an
individual at his work site on the night in question.
Afterwards, police showed him six black and white
photographs and he identified Blevins’ picture as the one
who looked closest to the individual he saw. Police then
showed him a color photo of Blevins and he positively
identified him. This witness was unable to identify
Blevins at trial, explaining that the incident had occurred
a year and a half ago.
An in-store surveillance system made an audio and video
recording of the entire robbery. Two individuals that
knew Blevins, one an acquaintance and the other a
cousin, testified at trial that they viewed the recording
5
KRS 532.080.
6
Blevins v. Commonwealth, 2003-SC-0091-MR (rendered March 18, 2004, unpublished).
-3-
and positively identified Blevins. In addition to the
surveillance tape, the Commonwealth also introduced an
audio taped statement given by Blevins to police in
which he admits that he robbed the Tobacco Outlet.
Blevins testified in his own defense and completely
denied the charges. He claimed that he was unable to
remember anything from the night of his arrest until the
time of his preliminary hearing because of a head injury
inflicted by police. Blevins denied that the voice on the
audio taped confession was his own.
After his convictions were affirmed, Blevins filed a motion for postconviction relief pursuant to RCr 11.42, alleging numerous claims of ineffective
assistance of his trial counsel. Without holding an evidentiary hearing, the trial
court entered an eighteen-page order on August 30, 2005, denying all but two of
Blevins’ claims. The court found the denied claims could be refuted on the face of
the record so no hearing was necessary on those issues. However, the remaining
two issues could not be so resolved, and thus the trial court appointed Blevins
counsel and scheduled an evidentiary hearing. After the hearing, on May 24, 2006,
the trial court entered an order denying Blevins’ final two allegations of ineffective
assistance. Blevins timely appealed to this Court.7
7
The notice of appeal referenced only the May 24, 2006, order. The Commonwealth has asked
us to hold that the issues resolved by the order entered on August 30, 2005, are therefore not
properly before us for review. Blevins contends that since he is a pro se litigant he should not be
held to the strict standards required for licensed attorneys, and that his notice of appeal
adequately placed the Commonwealth on notice of the issues to be resolved on appeal. Although
Blevins is now proceeding pro se, we note his notice of appeal was filed by the same licensed,
practicing attorney who represented him during the RCr 11.42 proceedings. Thus, we reject his
leniency request. However, we do not believe the August 30, 2005, order was final and
appealable, and because the May 24, 2006, order referenced previously decided issues, Blevins
has substantially complied with the requirements of Kentucky Rules of Civil Procedure (CR)
73.03. The Commonwealth was placed on sufficient notice of the issues to be decided on appeal,
and the argument to the contrary is rejected. Therefore, we shall review all of the issues raised in
the RCr 11.42 motion.
-4-
Blevins was separately convicted following a jury trial under
Indictment No. 01-CR-000159 of one count of robbery in the first degree and
being a PFO I. These charges stemmed from the robbery of another Laurel County
business known as the “Fillin’ Station.” The jury fixed a sentence of ten years’
imprisonment on the robbery charge, enhanced to twenty years by virtue of
Blevins’ PFO I status. The trial court accepted the jury’s decision and sentenced
Blevins accordingly. These convictions were unanimously affirmed on direct
appeal to the Supreme Court.8 The salient background facts were succinctly set
forth by the Supreme Court as follows:
On the evening of May 13, 2001, a man wearing a ski
mask and brandishing a knife entered the “Fillin’
Station” in London, Kentucky. The store manager,
Karen Bellomy, and her husband were both present at the
time, as was the store cashier, Donna Eaton. The robber
ordered Mr. Bellomy to the floor and held the knife to his
throat while demanding Karen Bellomy and Eaton
retrieve the money from the store’s safe. After Eaton
handed him the cash, the robber fled the premises.
During the course of the investigation, police learned that
Appellant, Eaton, Eaton’s husband, and Appellant’s halfbrother, Henry Sizemore, had conspired to commit the
robbery. In a statement to police, Eaton implicated
Appellant and stated that she was paid $100 for her
participation in the crime. After his apprehension,
Appellant gave a statement wherein he confessed to his
participation in the conspiracy, but claimed that it was
not a robbery, rather it was an attempt to cover up
Eaton’s desire to steal from her employer.9
8
Blevins v. Commonwealth, 2003-SC-0131-MR (January 20, 2005, unpublished).
9
Donna Eaton was subsequently indicted for her criminal participation in the robbery, and was
treated as Blevins’ co-defendant. (footnote added).
-5-
Following the issuance of the Supreme Court opinion affirming these
convictions, Blevins filed a motion pursuant to RCr 11.42. This motion raised
nearly identical issues to those raised in his earlier motion in connection with the
Tobacco Outlet conviction. On July 18, 2006, the trial court denied the motion
without holding an evidentiary hearing. Blevins timely appealed from this denial.
The two appeals were consolidated and our opinion today reflects resolution of all
of the claims presented.
On appeal, Blevins contends the trial court erred in finding his counsel
was effective.10 In relation to the Tobacco Outlet conviction, he claims trial
counsel was ineffective in failing to: (1) object to the introduction of evidence
collected on the night of his arrest, (2) seek funding from the trial court for various
expert witnesses, (3) object to an in-court identification of him by an eyewitness,
(4) interview and call alibi witnesses, and (5) object to his co-defendant’s
invocation of her Fifth Amendment privilege against self-incrimination. Blevins
further contends the cumulative effect of these errors mandates reversal of his
conviction. He raises similar arguments in relation to counsel’s representation of
him on the Fillin’ Station charge and conviction. He contends counsel failed to:
(1) seek funding from the trial court for various expert witnesses, (2) interview and
call alibi witnesses, (3) object to his co-defendant’s invocation of her Fifth
Amendment privilege against self-incrimination, and (4) object to the
10
Blevins was represented by the same counsel in both trials.
-6-
Commonwealth’s improper bolstering or vouching for his co-defendant’s
testimony during its redirect examination of her. Because Blevins makes claims of
a similar nature in the two appeals, we will address those claims concurrently and
then address the remaining issues separately.
In addition to challenging the trial court’s rejection of his various
claims, Blevins contends the court erred in failing to conduct an evidentiary
hearing on all of the claims presented in his RCr 11.42 motions. His argument
ignores the fact that a movant is not automatically entitled to an evidentiary
hearing on an RCr 11.42 motion; there must be an issue of fact which cannot be
determined from the face of the record. Stanford v. Commonwealth, 854 S.W.2d
742 (Ky. 1993). “Where the movant’s allegations are refuted on the face of the
record as a whole, no evidentiary hearing is required.” Sparks v. Commonwealth,
721 S.W.2d 726, 727 (Ky. App. 1986) (citing Hopewell v. Commonwealth, 687
S.W.2d 153, 154 (Ky. App. 1985)). Our review indicates Blevins’ allegations,
which were ruled upon without the benefit of an evidentiary hearing, were clearly
refuted on the face of the record, and thus the trial court did not err in refusing to
hold an evidentiary hearing on those issues.
The standard of review for denial of an RCr 11.42 motion for postjudgment relief is well-settled. To establish ineffective assistance of counsel, a
person must satisfy a two-part test showing both that counsel’s performance was
deficient and that the deficiency caused actual prejudice resulting in a proceeding
that was fundamentally unfair and unreliable. Strickland v. Washington, 466 U.S.
-7-
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Tamme, 83 S.W.3d
465, 469 (Ky. 2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
The burden is on the defendant to overcome a strong presumption that counsel’s
assistance was constitutionally sufficient or that under the circumstances counsel’s
action might be considered “trial strategy.” Strickland, 466 U.S. at 689; Moore v.
Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998); Sanborn v. Commonwealth, 975
S.W.2d 905, 912 (Ky. 1998). A court must be highly deferential in reviewing
defense counsel’s performance and should avoid second-guessing counsel’s
actions based on hindsight. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.
2001); Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). In assessing
counsel’s performance the standard is whether the alleged acts or omissions were
outside the wide range of prevailing professional norms based on an objective
standard of reasonableness. Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at
470; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). “A defendant is
not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but
counsel reasonably likely to render and rendering reasonably effective assistance.”
Sanborn, 975 S.W.2d at 991 (quoting McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997). To establish actual prejudice, a movant must show reasonable
probability the outcome of the proceeding would have been different or was
rendered fundamentally unfair and unreliable. Strickland, supra, 466 U.S. at 694;
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002). Where the movant
is convicted at trial, a reasonable probability is one that undermines confidence in
-8-
the outcome of the proceeding upon consideration of the totality of the evidence
before the jury. Strickland, 466 U.S. at 694-95. See also Bowling, 80 S.W.3d at
412; and Foley, 17 S.W.3d at 884. Finally, we review a trial court’s findings of
fact under the clearly erroneous standard of review. CR 52.01.
First, Blevins contends his counsel was ineffective in both cases for
failing to seek funding from the trial court for various expert witnesses to assist in
his defense. He claims experts were needed to demonstrate that his confession was
involuntary, that the voice on the recorded confession was not his, and to discredit
any testimony identifying him as the perpetrator of these crimes using video
surveillance tapes obtained from the businesses. He further insists trial counsel
should have sought funding to employ a clinical neuropsychologist and an expert
in coercive police interrogation techniques. In support of these claims, Blevins
contends that during an altercation with the arresting officers he sustained a
debilitating head injury after being struck by a flashlight and is unable to recall any
events that occurred for several days following his arrest. Thus, he claims any
confession he may have made could not have been voluntarily and intelligently
given. We disagree.
Contrary to his assertion, Blevins is not automatically entitled to
funding for an independent psychological expert; trial courts have discretion to
deny such funding requests if it is determined such testimony is not reasonably
necessary. Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008). Our review of the
hospital records from the evening of his arrest indicated Blevins was alert,
-9-
oriented, had normal speech, was cooperative, and had no outward signs of
decreased intellectual functioning. Blevins’ subsequent evaluation at the Kentucky
Correctional Psychiatric Center (KCPC) revealed no substantial mental defects or
disabilities. The record also reveals Blevins voluntarily executed a written waiver
of his constitutional rights after the officers read him the warnings required under
Miranda.11 The audio-taped confession is coherent, calm, detailed and extremely
consistent with the events captured on the video surveillance tapes of the robberies.
Apart from Blevins’ self-serving and unsupported contentions, nothing in the
record indicates his confession was obtained by force or the threat thereof, nor that
he lacked the capacity to give a voluntary statement.
We are not persuaded by Blevins’ argument that had an expert
testified as to this matter, there is a reasonable probability he would have been
acquitted. It is possible that expert testimony may have strengthened the case for
the Commonwealth, especially in light of the internal inconsistency of his
arguments.12 Furthermore, Blevins had to overcome the strong presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, supra 466 U.S. at 689. Blevins has failed to overcome this
presumption. Based on the surrounding circumstances, we believe that trial
11
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
12
On the one hand, Blevins contends his confession could not have been voluntarily given
because of his head injury. Inexplicably however, he further contends he did not give a
confession and the voice on the audio tape was not his. Blevins does not explain how counsel
could, in good faith, request funding for experts to discredit the voluntariness of his confession
when he insists he made no statement at all.
-10-
counsel’s strategy in this matter was not deficient. We also do not believe there
was a sufficient probability that such expert assistance would have undermined
confidence in the outcome. Hence, we do not believe trial counsel’s acts in
relation to this matter prejudiced Blevins. Therefore, Blevins has failed to satisfy
the elements of Strickland in relation to this argument.
Moreover, Blevins offers no argument as to consulting an independent
expert to analyze the contents of the audio-taped confession for authenticity nor to
review the procedures implemented in obtaining identifications of him as the
perpetrator from the surveillance video-tapes. These arguments are made in
passing only without reference to specific experts nor to what anticipated
testimony they would have given. Thus, we shall not address these issues as they
are not properly presented to this Court.
Second, Blevins contends his trial counsel was ineffective in failing to
investigate and call alibi witnesses to testify on his behalf. He contends these
witnesses would have vouched for his whereabouts at the time of each of the
robberies.13 Following an evidentiary hearing, the trial court found trial counsel
had offered a credible explanation for not calling the witnesses. We agree with the
trial court.
During the evidentiary hearing, trial counsel indicated he had, in fact,
investigated Ms. Jones, as Blevins had suggested, and after interviewing her
13
Blevins indicates only one of the two proposed witnesses, Jennifer Jones, could testify
regarding his whereabouts at the time of the robberies. He contends the other proposed witness,
Lee Jones, would bolster Jennifer’s credibility.
-11-
determined the proposed testimony would not assist in Blevins’ defense.
Additionally, Ms. Jones would be impeached by her her own legal troubles as she
was incarcerated at the Kentucky Correctional Institute for Women when counsel
interviewed her. Blevins offered no contradictory testimony to rebut trial
counsel’s explanation. Although counsel is required to make a reasonable
investigation, “[d]ecisions relating to witness selection are normally left to
counsel’s judgment and this judgment will not be second-guessed by hindsight.”
Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000) (quoting Fretwell v.
Norris, 133 F.3d 621, 627 (8th Cir. 1998)).14 Ms. Jones’ testimony was also subject
to impeachment because of the surveillance video-tapes of the robberies and the
eyewitness identifications of Blevins as the perpetrator. We believe the trial court
correctly held counsel’s discretionary decision not to call Ms. Jones was the result
of sound trial strategy and did not rise to ineffective assistance of counsel.
Third, Blevins contends trial counsel was ineffective in failing to
object to co-defendant Donna Eaton’s invocation of her Fifth Amendment
privilege against self-incrimination at the suppression hearing. He argues Eaton’s
testimony would have bolstered his statements that police assaulted him on the
night of his arrest, which would in turn bolster his that he could not have given a
voluntary confession. Thus, he alleges trial counsel’s failure to
contemporaneously object to Eaton’s invocation of her privilege fell below the
14
Foley v. Commonwealth was overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d
307 (Ky. 2005).
-12-
standard of reasonable representation.15 Again, we disagree. Initially, we note that
although Blevins includes numerous citations to legal precedents in his brief to this
Court, they are inapposite to the matter at bar and he cites us to no pertinent legal
authority supporting his position. We are convinced none exists. Eaton was an
indicted co-conspirator in one of the two robberies for which Blevins stood
charged. Blevins gave a taped confession regarding both robberies, and it was this
confession which was at the heart of the suppression hearing. At the time of the
hearing, Eaton’s criminal charges were still pending. Based on the record before
us, her assertion of the privilege was reasonable. The record contains no indication
that counsel would have had a legal or factual basis upon which to object to
Eaton’s assertion of her privilege against self-incrimination. Thus, following the
evidentiary hearing on this matter, the trial court correctly found counsel had not
performed deficiently.
We now turn to Blevins’ remaining allegations of ineffectiveness
which are specifically applicable to only one of the convictions below. Blevins
contends trial counsel was ineffective in failing to object to the Commonwealth’s
redirect examination of Eaton during her testimony in the “Fillin’ Station” trial.
He alleges the Commonwealth’s comments during this examination improperly
bolstered or vouched for Eaton’s identification of him as the perpetrator and her
co-conspirator. On direct appeal, the Supreme Court specifically addressed the
15
Although the majority of Blevins’ argument on this issue is rambling and largely incoherent,
we believe we have accurately framed the claim.
-13-
Commonwealth’s examination of Eaton, finding the comments did not rise to the
level of improper vouching, did not amount to the prosecutor improperly testifying,
and were merely an aggressive attempt to impeach her with her prior inconsistent
statements. In light of this finding, trial counsel’s decision not to object to the line
of questioning was proper. Blevins’ argument to the contrary is without merit.
Blevins’ remaining contentions pertain to trial counsel’s alleged
ineffectiveness in representing him in regard to the “Tobacco Outlet” charge and
resulting conviction. He initially contends counsel was ineffective in failing to
object to the admission of evidence seized from his campsite on the night of his
arrest. The evidence consisted of a gym bag with the Adidas logo imprinted on it
containing dark clothes, a ski mask, a pair of black sweat pants, a knife, and a
police radio scanner. Blevins alleges this evidence was “irrelevant and highly
inflammatory.” However, Blevins has failed to demonstrate how any alleged
prejudice caused by the admission of these pieces of evidence outweighed their
probative value. He has also failed to articulate any legal basis which would
support a motion to suppress these items, or an objection to their entry into
evidence, as they were lawfully found and seized following Blevins’ arrest.
Further, Blevins does not demonstrate how the outcome of his trial would have
been different had these items been excluded. Based on the otherwise
overwhelming evidence of his guilt—including the surveillance tapes, the taped
confession, and three different positive identifications of him as the robber—
Blevins has failed to satisfy the prejudice prong under Strickland. Thus, the trial
-14-
court correctly found trial counsel was not ineffective in failing to object to the
introduction of these pieces of evidence.
Next, Blevins argues his trial counsel was ineffective in failing to
object to a victim’s16 in-court identification of him as the person who robbed her.
He contends the Commonwealth wrongly withheld information that Ms. Mills had
been shown photographs of several men on the day of the robbery and four days
later was shown photographs of only Blevins but was unable to conclusively
identify him as the perpetrator. However, a careful review of the record reveals
that counsel did, in fact, object to the testimony and move for a mistrial
immediately upon learning of Ms. Mills’ previously undisclosed attempts to make
an out-of-court identification on the grounds that her in-court identification was
tainted. The objection and the motion for a mistrial were both overruled. We
agree with the trial court that counsel’s actions were reasonable and prudent under
the circumstances and clearly evidenced an intent to protect Blevins’ best interests.
We cannot say counsel’s actions fell below the standard of reasonably competent
representation.
Finally, Blevins contends the cumulative effect of the foregoing errors
requires reversal of his convictions. However, having found all of Blevins’
arguments to be without merit, there could be no cumulative error because “[a]
combination of non-errors does not suddenly require reversal.” Bowling v.
Commonwealth, 981 S.W.2d 545, 552 (Ky. 1988).
16
This eyewitness was Sherry Mills, the cashier at the Tobacco Outlet at the time of the robbery.
-15-
Therefore, for the foregoing reasons, the orders of the Laurel Circuit
Court denying Blevins’ motions for post-conviction relief are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Paul Blevins, pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
-16-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.