KEVIN SHEGOG v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JUNE 2, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000367-MR
KEVIN SHEGOG
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 01-CR-00386
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
JOHNSON, JUDGE:
Kevin Shegog, pro se, has appealed from an
order entered by the Campbell Circuit Court on December 30,
2004, which denied his pro se RCr2 11.42 motion to vacate, set
aside, or correct the trial court’s final judgment and sentence
of imprisonment without holding an evidentiary hearing.
Having
concluded that the trial court erred in summarily denying
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.
Shegog’s claims of ineffective assistance of counsel, we vacate
and remand for further proceedings.
Because Shegog directly appealed his 20-year sentence
to the Supreme Court of Kentucky,3 we quote the pertinent facts
of this case from its Opinion as follows:
Appellant’s convictions stem from a
robbery that was committed on May 28, 2001,
at a BP gas station in Highland Heights,
Kentucky. Joy Powell, a witness who was
inside the gas station at the time of the
robbery, stated that she observed an
African-American male wearing a red and
white sports jacket and a nylon stocking on
his head pass by the front glass window and
then enter the store. Once inside, Powell
stated that the man grabbed her and, as he
pulled the stocking down over his face,
announced that he had a gun. Powell was
ordered behind the counter with the store
clerk and both were told to lie on the
floor. After taking the money from the
register, the robber fled the scene.
Powell’s husband Steve, who had been pumping
gas, observed the man get into a dark
colored vehicle with a vanity license plate
that read “Shegog.”
The following day, Powell was shown a
photo line-up, but was unable to identify
the robber due to the poor quality of the
computer-generated images. Police
thereafter compiled a second line-up of
color photographs, from which Powell
identified Appellant. Appellant was
indicted for and ultimately convicted of
first-degree robbery. The jury recommended
a fifteen year sentence enhanced to twenty
years by virtue of Appellant’s persistent
3
Shegog v. Commonwealth, 141 S.W.3d 101 (Ky. 2004).
-2-
felony offender status. Judgment was
entered accordingly . . . .4
The Supreme Court Opinion became final on September 16, 2004.
On December 8, 2004, Shegog filed a pro se RCr 11.42
motion to vacate, set aside, or correct his sentence, with a
memorandum in support, as well as a motion for appointment of
counsel, and a request for an evidentiary hearing.
The
Commonwealth filed its response to the motions on December 16,
2004, stating that Shegog had failed to set forth a specific
factual basis for relief as is required for a motion pursuant to
RCr 11.42.
Based on the Commonwealth’s response, the trial
court denied Shegog’s RCr 11.42 motion and his motion for
appointment of counsel on December 30, 2004, without holding an
evidentiary hearing.5
On January 10, 2005, Shegog filed a motion
requesting that the trial court enter findings of facts and
conclusions of law addressing its denial of his RCr 11.42
motion.
Shegog also filed a motion requesting appointment of
counsel and a motion pursuant to RCr 73.08 to compel cooperation
of the Campbell Circuit Court Clerk in timely filing his
motions.
The trial court entered an order on January 25, 2005,
denying all of Shegog’s motions.
Shegog filed this appeal from
the December 30, 2004, order denying his RCr 11.42 motion.
4
Shegog, 142 S.W.3d at 103-04.
5
Shegog had mailed a reply to the Commonwealth’s response to his RCr 11.42
motion; however, it was filed on January 4, 2005, after the trial court had
already denied the motions.
-3-
Shegog makes the following seven arguments:
(1)
“Trial counsel was ineffective by withdrawing motion for expert
witness on identification.
Counsel failed to raise or preserve
issue whether exclusion of expert testimony on unreliability of
eyewitness identification denied Appellant a meaningful
defense[;]” (2) “Trial counsel failed to challenge the
authenticity of the search warrants, even when the face of the
warrants revealed major discrepancies[;]” (3) “The Commonwealth
violated appellant’s due process rights by failing to disclose
exculpatory evidence relating to a key prosecution witness that
was currently on felony probation while testifying at
appellant’s trial[;]” (4) “Trial counsel failed to secure
criminal/arrest records of Commonwealth witness(s)[;]” (5)
“Trial counsel failed to subpoena telephone records, when
records were vital to Appellant’s defense and would have clearly
established the Commonwealth witnesses to have fabricated their
testimony[;]” (6) “The Commonwealth maliciously committed
wrongdoing by manufacturing a counterfeit 911 tape[,]
substituting the original[,] and offering bogus tape into
evidence.
Trial counsel was ineffective in failing to object or
challenge the true authenticity of the 911 tape[;]” and (7)
“Trial counsel failed to impeach or discredit Commonwealth
witnesses concerning numerous inconsistent statements previously
made.”
In its brief, the Commonwealth merely contends that
-4-
because Shegog failed to incorporate his memorandum of law by
reference into his RCr 11.42 motion, the trial court was correct
in denying the motion on the grounds that it failed to state a
factual basis to support the allegation of ineffective
assistance of counsel.
However, we note that both the RCr 11.42
motion and the memorandum of law were filed on the same date,
that Shegog utilized motion language in his memorandum, and that
the memorandum referenced his RCr 11.42 motion.
Further, in a
subsequent motion Shegog requested that the trial court make
specific factual findings and conclusions of law addressing its
denial of his RCr 11.42 motion, his motion for counsel, and his
motion for an evidentiary hearing.
In its order entered on January 25, 2005, denying
Shegog’s motions, the trial court stated as follows:
IT IS FURTHER ORDERED that Defendant’s
Motion for findings of fact and conclusions
of law pursuant to R.Cr.11.42(2) is
overruled. An 11.42 motion shall be signed
and verified by the movant and shall state
specifically the grounds on which the
sentence is being challenged and the facts
on which the movant relies in support of
such grounds. Failure to comply with this
section shall warrant a summary dismissal of
the motion.
The Defendant, Shegog’s 11.42 motion
failed to offer any factual basis to support
his allegation of ineffective assistance of
counsel and, therefore, was summarily
dismissed.
-5-
In fact, Shegog’s RCr 11.42 motion was signed and verified, and
although the Commonwealth states otherwise, Shegog’s memorandum
of law in support of his RCr 11.42 motion was also signed and
verified.
In Commonwealth v. Miller,6 a case similar to the case
before us, the former Court of Appeals noted that we do not
impose on a prisoner who is proceeding pro se the same standards
as those applied to legal counsel.
The Court held that
“Miller’s motion was required to and gave the court and opposing
party fair notice of the nature of the claim” [citations
omitted].7
In the case before us, Shegog stated in his
memorandum in support of his RCr 11.42 motion that at the time
of the alleged robbery on May 28, 2001, key prosecution witness
Steve Powell was under indictment for drug and weapon charges.
Shegog further alleges that on January 16, 2002, approximately
three months before Shegog’s trial, Powell was sentenced to
probation under the terms of a plea agreement which dismissed
all charges except possession of a controlled substance.
Shegog
claims that even though his trial counsel knew of Powell’s plea
agreement, he failed to use this information to impeach Powell
by showing that he had a motive to fabricate testimony against
him.
In light of Powell’s critical eyewitness testimony that
6
416 S.W.2d 358, 360 (Ky. 1967).
7
Id.
-6-
Shegog committed the robbery, we conclude that this allegation
constitutes specific facts in support of a specific ground that
may entitle Shegog to relief.
Thus, since Shegog substantially
complied with the requirements of RCr 11.42 by providing in his
memorandum of law sufficient specificity as to the grounds on
which the sentence is being challenged and the facts relied upon
in support of such grounds, the trial court erred by summarily
denying his RCr 11.42 motion.
For the foregoing reasons, we vacate the Campbell
Circuit Court’s order entered on December 30, 2004, dismissing
Shegog’s RCr 11.42 motion, his motion for appointment of
counsel, and his motion for an evidentiary hearing, and the
order entered on January 5, 2005, denying him additional
findings and conclusions of law and appointment of counsel.
This matter is remanded to the trial court for further
proceedings on the merits of Shegog’s RCr 11.42 motion and
accompanying motions.
BUCKINGHAM, SENIOR JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kevin Shegog, Pro Se
Sandy Hook, Kentucky
Gregory D. Stumbo
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
-8-
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.
