WHITE (LARRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002175-MR
LARRY WHITE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 03-CR-00291
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Larry White, proceeding pro se, appeals from an
order of the Fayette Circuit Court denying his motion for post-conviction relief
filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. The issue is
whether the circuit court properly denied Appellant’s motion without conducting
1
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.
an evidentiary hearing. After reviewing the parties’ briefs and the record, we agree
that an evidentiary hearing was unnecessary. Thus, we affirm.
In February 2004, Appellant was tried and convicted of first-degree
assault and sentenced to fifteen years’ imprisonment. He filed a direct appeal on
the grounds that he should have been granted a mistrial, but this Court affirmed his
conviction. White v. Commonwealth, No. 2004-CA-000342-MR (Ky. App. Feb.
11, 2005). In February 2008, Appellant filed an RCr 11.42 motion for postconviction relief in which he alleged, among other things, that his attorney had
rendered ineffective assistance of counsel by failing to present testimony from
several exculpatory witnesses.2 On November 3, 2008, the Fayette Circuit Court
denied Appellant’s RCr 11.42 motion without an evidentiary hearing largely
because Appellant had failed to provide the names or predicted testimony of any
alleged exculpatory witnesses or to explain how their testimony would have
affected the reliability of his conviction. This appeal followed.
On appeal, Appellant argues that the circuit court erroneously denied
his motion for RCr 11.42 post-conviction relief without a hearing. In Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United
States Supreme Court set forth a two-pronged analysis to be used in determining
whether the performance of a convicted defendant’s trial counsel was so deficient
as to merit relief from that conviction.
2
Appellant’s motion was filed pro se. Counsel was subsequently appointed to assist Appellant,
but no supplement to the original motion was filed.
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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.
Id., 466 U.S. at 687, 104 S.Ct. at 2064.
Because an evidentiary hearing was not held, “[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.” Lewis v.
Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). 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); see also Stanford v.
Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). “The trial judge may not
simply disbelieve factual allegations in the absence of evidence in the record
refuting them.” Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001).
However, there is no need for an evidentiary hearing if the record refutes the
claims of error or if the defendant’s allegations, even if true, would not be
sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311,
314 (Ky. 1998).
Appellant’s brief focuses on the fact that the circuit court’s denial of
his RCr 11.42 motion hinged on his failure to provide the names or predicted
testimony of any alleged exculpatory witnesses. Appellant contends that the
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circuit court’s decision erroneously placed the burden on him – and not his counsel
– to investigate his case and to ascertain who could testify in his defense. In
support of this contention, Appellant notes that he “wrote counsel several letters
informing him of all possible witnesses who would be at the trial and possible
witnesses to the crime.” However, in both his RCr 11.42 motion and in his brief,
Appellant fails to provide any specific supportive details such as the names of any
alleged exculpatory witnesses or the anticipated substance of their testimony. In
addition, Appellant fails to indicate how the witnesses’ testimony would have
resulted in a different outcome at trial. Appellant further argues that “[h]ad
counsel conducted an independent investigation he would have uncovered
additional witnesses [that were] not named by” Appellant. However, Appellant
fails to elaborate on who these witnesses might be or how their testimony would
have benefitted him.
These failures are ultimately fatal to Appellant’s motion. RCr
11.42(2) specifically requires that any motion brought under that rule “be signed
and verified by the movant and [that the motion] 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.” (Emphasis added). Thus, RCr
11.42(2) places an obligation on the party seeking post-conviction relief to produce
specific facts supporting his motion. Mere conclusory allegations do not meet this
burden and do not justify an evidentiary hearing. Hodge v. Commonwealth, 116
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S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009); Sanborn v. Commonwealth, 975
S.W.2d 905, 909 (Ky. 1998), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009). Accordingly, “[t]he RCr 11.42
motion must set forth all facts necessary to establish the existence of a
constitutional violation. The court will not presume that facts omitted from the
motion establish the existence of such a violation.” Hodge, 116 S.W.3d at 468; see
also Skaggs v. Commonwealth, 803 S.W.2d 573, 576 (Ky. 1990).
As noted, Appellant failed to provide any specific grounds or facts in
his RCr 11.42 motion that would warrant an evidentiary hearing on the basis that
Appellant’s trial counsel failed to adequately investigate potential witnesses.
Therefore, the circuit court did not err in summarily denying Appellant’s motion.
Appellant also makes vague assertions that his trial counsel: (1) failed to
investigate the full facts of the case; (2) failed to advise him of the law applicable
to his case and allowed him to unintelligently enter into a plea bargain; and (3)
failed to move for or to otherwise protect his right to a mistrial. Again, however,
Appellant fails to elaborate on these claims and provides nothing that would
suggest a need for an evidentiary hearing.
Thus, for the foregoing reasons, the order of the Fayette Circuit Court
denying Appellant’s RCr 11.42 motion without an evidentiary hearing is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry White, pro se
West Liberty, Kentucky
Jack Conway
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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