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Court of Appeals of Kentucky.


NO. 2010–CA–001605–MR

Decided: June 15, 2012

BEFORE:  DIXON, KELLER AND NICKELL, JUDGES. BRIEFS FOR APPELLANT:  M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky



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Appellant, William Payne, appeals from an order of the Taylor Circuit Court denying his petition for post-conviction relief pursuant to RCr 11.42.   Finding no error, we affirm.

In 2002, Appellant was indicted by a Taylor County grand jury for fifty counts of first-degree rape, ten counts of first-degree sodomy, and one count of being a first-degree persistent felony offender.   All charges stemmed from acts committed against Appellant's girlfriend's minor daughter over a two-year period of time.   A jury trial was held in October 2003.   Based upon the victim's testimony wherein she identified nine distinct instances of sexual intercourse and five distinct instances of oral sodomy, the jury was only instructed on nine of the rape counts, five of the sodomy counts, and the first-degree PFO charge.   The jury found him guilty of all fourteen charges and recommended an enhanced sentence of thirty years imprisonment.   The trial court entered judgment accordingly.

On direct appeal, Appellant's convictions and sentence were affirmed by the Kentucky Supreme Court in an unpublished opinion.   Payne v. Commonwealth, 2004–SC–0269–MR (June 16, 2005).   Subsequently, on June 16, 2006, Appellant filed a motion to vacate his sentence pursuant to RCr 11.42, alleging various claims of ineffective assistance of counsel.   An evidentiary hearing was held on February 9, 2007, and the trial court thereafter entered an order on July 29, 2010, denying Appellant's motion.   This appeal ensued.

In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right that would justify the extraordinary relief afforded by the post-conviction proceeding.  Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky.1968).   An evidentiary hearing is warranted only “if there is an issue of fact which cannot be determined on the face of the record.”  Stanford v. Commonwealth, 854 S.W.2d 742, 743–44 (Ky.1993), cert. denied, 510 U.S. 1049 (1994);  RCr 11.42(5).   See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky.2001);  Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky.1998), cert. denied, 527 U.S. 1026 (1999).  “Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition.”  Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky.2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009).   However, when the trial court conducts an evidentiary hearing, the reviewing court must defer to the determinations of fact and witness credibility made by the trial judge.  McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986);  Commonwealth v. Anderson, 934 S.W.2d 276 (Ky.1996);  McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the standards which measure ineffective assistance of counsel claims.   In order to be ineffective, performance of counsel must fall below the objective standard of reasonableness and be so prejudicial as to deprive a defendant of a fair trial and a reasonable result.  Id. “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.”  United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992), cert. denied, 508 U.S. 975 (1993).   Thus, the critical issue is not whether counsel made errors, but whether counsel was so “manifestly ineffective that defeat was snatched from the hands of probable victory.”  Id.

In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the trial court or jury and assess the overall performance of counsel throughout the case in order to determine whether the alleged acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.  Strickland;  see also Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302 (1986).   A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance.  McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.1997), cert. denied, 521 U.S. 1130 (1997).   The Supreme Court in Strickland noted that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

In this Court, Appellant first alleges that his counsel rendered ineffective assistance by failing to pursue what he characterizes as an alibi defense.

Specifically, Appellant claims that he informed his trial counsel of numerous dates that he was not living in the victim's household because he was visiting his mother in Chicago.   Further, Appellant points out that he was incarcerated for a short period during the time frame in question.   It is Appellant's belief that had counsel investigated and presented this evidence, the jury would have doubted whether some of the charged acts occurred.

At the RCr 11.42 hearing, trial counsel testified he was aware of Appellant's absences from the household but that he did not believe an alibi defense was viable because Appellant still had ample access to the victim during the two year period.   Counsel also noted that he was of the opinion that to inform the jury of Appellant's incarceration would be highly prejudicial since it involved a domestic violence charge against Appellant's sister.   Trial counsel stated that he made an informed decision to forgo an alibi defense in favor of Appellant's denial that the incidents took place as well as a credibility attack of the victim.

As the trial court noted in its order denying RCr 11.42 relief,

This case was a multi-count indictment where specific incidents were charged.   No specific dates were submitted.   The Defendant could have committed the acts on the victim despite the Defendant's travels, treatment, incarceration, or work schedule.   Counsel ․ knew this and correctly surmised that this case would be decided based on the credibility of the witnesses.   A person's felony conviction can hurt his credibility as a witness.   A conviction for Assault 2 nd degree is not likely to be endearing to the jury.   The fact that Appellant was also arrested for assaulting a family member while on a trip home could only have hurt his credibility even more.

We agree that under the circumstances and the nature of evidence, counsel's trial strategy was reasonable, and further investigation would not have uncovered a defense that had a reasonable probability of altering the outcome of the trial.  Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky.2001).

Next, Appellant complains that counsel was ineffective by failing to introduce medical evidence that Appellant did not have the sexually transmitted disease Chlamydia.   Appellant argues that since the victim tested positive for the disease, the fact that he did not “could have very possibly caused some doubt in the minds of the jurors.”

Again, trial counsel testified at the hearing that his law partner had conducted extensive research on the disease and they had concluded that the issue was not relevant.   Counsel explained that Chlamydia can be quickly and easily cured by an antibiotic so whether or not Appellant tested positive was not relevant to the main issues.   As no evidence was introduced indicating that Appellant tested positive, counsel made an informed decision to not present any further information on the disease.

Trial counsel was very clear in his strategy:  bolster Appellant's credibility and attack the credibility of the victim.   As he noted during the hearing, “Our strategy was to get [the jurors] to believe our client more than they would believe the [victim].”   Reviewing the trial as a whole, we conclude that trial counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland, 466 U.S. at 690.   Appellant's claims of ineffective assistance of counsel are nothing more than his criticism of counsel's trial strategy.   Appellant has failed, however, to demonstrate that but for counsel's actions, the outcome of the trial would have been different.  Id.

For the reasons stated herein, the order of the Taylor Circuit Court denying Appellant's motion for relief pursuant to RCr 11.42 is affirmed.