SCOTT (ROCKY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000952-MR
ROCKY SCOTT
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 06-CR-00053
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON AND KELLER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Rocky Scott appeals from the McCracken Circuit
Court’s March 9, 2009, and April 19, 2009, orders. Those orders denied,
respectively, Appellant’s motion for Kentucky Rules of Criminal Procedure (RCr)
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Senior Judge Joseph E. Lambert 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.
11.42 relief and Appellant’s motions to alter, amend, or vacate for an evidentiary
hearing and for specific findings of fact. Appellant appeals from the trial court’s
denial of an evidentiary hearing. Because Appellant has failed to show that his
conviction could be invalidated by his RCr 11.42 claims, we conclude that the trial
court did not err in denying an evidentiary hearing. Accordingly, we affirm.
Appellant was indicted by the McCracken County Grand Jury for
first-degree rape and first-degree sexual abuse. Appellant was subsequently found
guilty of both offenses and sentenced to a total of twenty-one years. Appellant
moved for a new trial and that motion was denied. Appellant next filed a motion
for relief pursuant to RCr 11.42 in which he argued ineffective assistance of trial
counsel. Specifically Appellant alleged that his trial counsel was ineffective for
having failed to retain a private investigator or medical expert. No evidentiary
hearing was held on the RCr 11.42 motion. In an order entered on March 9, 2009,
the trial court denied Appellant’s motion. Appellant subsequently filed a motion to
alter, amend, or vacate the March 9, 2009, order, and sought an evidentiary hearing
on his RCr 11.42 motion, or, in the alternative, specific findings from the trial
court. Appellant’s motion was denied in an order entered on April 14, 2009. This
appeal followed.
An RCr 11.42 “motion is limited to [the] issues that were not and
could not be raised on direct appeal.” Sanborn v. Commonwealth, 975 S.W.2d
-2-
905, 909 (Ky. 1998) (overruled on other grounds). A party filing a motion
pursuant to RCr 11.42 has the burden “to establish convincingly that he was
deprived of some substantial right which would justify the extraordinary relief
afforded by the post-conviction proceedings provided in RCr 11.42.” Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). We review a trial court's
judgment on an RCr 11.42 motion for an abuse of discretion. Bowling v.
Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998).
Kentucky has adopted the two-prong test of establishing ineffective
assistance of counsel as outlined in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985).
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. It is the defendant’s
burden to establish ineffective assistance of counsel. Strickland, 466 U.S. at 690,
104 S. Ct. at 2066. The trial court must determine whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would be different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “It is not enough for the defendant to show that error by counsel
had some conceivable effect on the outcome of the proceeding.” Sanders v.
Commonwealth, 89 S.W.3d 380, 386 (Ky. 2002).
Appellant’s argument on appeal is that the trial court erred when it
denied his request for an evidentiary hearing. In his motion for relief in the trial
court, Appellant asserted that he had consulted his attorney regarding an expert
medical witness to rebut the testimony of the Commonwealth’s witness, Dr. James
L. Shumaker. Appellant’s motion further asserted that he had offered to pay for a
rebuttal expert witness, that he was told by his trial attorney that no such expert
was needed, and that failure to use an expert raised a probability that the outcome
of his trial would have been different.
RCr 11.42 requires an evidentiary hearing “if the answer raises a
material issue of fact that cannot be determined on the face of the record.” RCr
11.42(5); Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993), cert.
denied by Stanford v. Kentucky, 510 U.S. 1049, 114 S. Ct. 703, 126 L. Ed. 2d 669
(1994). There is no need for an evidentiary hearing when the record refutes the
claims of error or when the allegations, even if true, would not be sufficient to
invalidate the conviction. Id.; Brewster v. Commonwealth, 723 S.W.2d 863 (Ky.
App. 1986).
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In its order denying the Appellant an evidentiary hearing, the trial
court concluded that the record conclusively resolved Appellant’s claims. We note
that the testimony given by Dr. Shumaker pertained to his examination of the
victim. He testified that his examination revealed a cleft in the victim’s hymenal
ring that could have been caused by trauma or could have been natural to her
anatomy. He further testified that while there was nothing in his examination that
was inconsistent with sexual abuse, it did not prove that the victim had been
sexually abused. Appellant has failed to show what rebuttal an expert witness
could have provided and how such a witness could have probably avoided the
conviction. The testimony of Dr. Shumaker revealed an inconclusive physical
examination and hence provided little, if any, weight to the Commonwealth’s case
against Appellant. As the Commonwealth points out, it is possible that Dr.
Shumaker’s testimony may have actually aided Appellant’s defense. Appellant
failed to cite to any material issue of fact that could not be determined on the face
of the record, making the trial court’s denial of an evidentiary hearing not
inappropriate. Because Appellant also failed to show how the use of a private
investigator would have probably avoided his conviction, an evidentiary hearing on
that claim was properly denied.
Accordingly, we hold that the trial court did not err in its refusal of an
evidentiary hearing. We affirm.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Delbert K. Pruitt
Paducah, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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