Opinion
NO. 2017-CA-001585-MR
03-20-2020
CARL LEE ADKINS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Carl Lee Adkins, Jr., pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 12-CR-000395 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES. KRAMER, JUDGE: Carl Lee Adkins, Jr., appeals from an order of the Jefferson Circuit Court which denied his motion to alter, amend or vacate his conviction pursuant to RCr 11.42. He alleges that his motion presented issues of fact which could not be conclusively resolved without appointment of counsel and an evidentiary hearing. Because we conclude that Adkins' motion failed to allege sufficient facts supporting his claims of ineffective assistance of counsel, we affirm.
Kentucky Rules of Criminal Procedure.
In February 2012, a Jefferson County grand jury returned an indictment charging Adkins with one count each of first-degree sodomy and second-degree burglary. Following a jury trial in 2013, Adkins was convicted on the lesser-included offense of first-degree sexual abuse and for second-degree burglary. In accord with the jury's verdict, the trial court sentenced Adkins to a total of twenty-years' imprisonment. The Kentucky Supreme Court affirmed his conviction and sentence on direct appeal. Adkins v. Commonwealth, No. 2013-SC-000460-MR, 2014 WL 2810040 (Ky. June 19, 2014).
In June 2017, Adkins filed the current RCr 11.42 motion, asserting that his conviction was tainted by ineffective assistance of his trial counsel. He also filed motions to proceed in forma pauperis, for appointment of counsel, and requesting an evidentiary hearing. The trial court granted his motion to proceed in forma pauperis. But after reviewing Adkins' motion and the record, the trial court denied his RCr 11.42 motion without appointing counsel or conducting an evidentiary hearing. This appeal followed.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that, but for the deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Id. at 688-89, 104 S. Ct. at 2065. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690, 104 S. Ct. at 2066. An evidentiary hearing is necessary only where the record does not conclusively refute the allegations in the motion. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Adkins first argues that he was entitled to an evidentiary hearing because there were genuine issues of fact regarding his allegations of ineffective assistance. Specifically, Adkins alleges that his trial counsel was ineffective for failing to request appointment of an expert to challenge the Commonwealth's DNA testing. He alleges that the DNA samples were not as conclusive as the Commonwealth asserts and that an expert could have cast more doubt on the results. He also contends that he was prejudiced by the absence of an independent test of a hair sample found on the victim.
Adkins concedes, however, that he made a motion to the trial court to appoint an independent expert and that motion was denied. RCr 11.42 does not permit a convicted defendant to retry issues which were or should have been raised upon appeal. Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009). A defendant may raise separate collateral claim of ineffective assistance of counsel related to the alleged error, as long as they are actually different issues. Id. at 158. But while Adkins contends that expert would have helped him challenge the DNA evidence, he does not identify any specific errors of counsel which prejudiced his defense. Furthermore, the Commonwealth's expert testified that the hair sample could not conclusively exculpate or inculpate Adkins as the perpetrator. Adkins does not identify any expert to contradict this testimony. Therefore, we agree with the circuit court that he failed to allege sufficient facts to require an evidentiary hearing.
Adkins next broadly alleges that his trial counsel was deficient for pursuing a defense based upon the uncertainty of the victim's identification and for failing to more vigorously cross-examine witnesses. Generally, however, matters involving trial strategy will not be second-guessed by hindsight. Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). The record shows that trial counsel cross-examined the Commonwealth's expert regarding the certainty of the DNA match. Furthermore, the victim admitted at trial that she could not see the perpetrator well enough to identify him. Counsel also cross-examined the victim regarding the extent of the perpetrator's conduct. Other than his unsupported assertions, Adkins points to no evidence that a different strategy or more vigorous cross-examination would likely have led to a different result. Consequently, the trial court properly denied his motion without conducting an evidentiary hearing.
Accordingly, we affirm the order of the Jefferson Circuit Court denying Adkins' RCr 11.42 motion.
ALL CONCUR. BRIEFS FOR APPELLANT: Carl Lee Adkins, Jr., pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky