Strickland test in Kentucky

2023STANDARD OF REVIEW As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002): [t]he Strickland standard sets forth a two-prong test for ineffective assistance of counsel: [f]irst, the defendant must show that counsel’s performance was deficient.

2023STANDARD OF REVIEW As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002): [t]he Strickland standard sets forth a two-prong test for ineffective assistance of counsel: [f]irst, the defendant must show that counsel’s performance was deficient.

2025Our conclusion is supported by the fact that “both parts of the Strickland test . . . involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

2025Our conclusion is supported by the fact that “both parts of the Strickland test . . . involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

2024“This ‘test applies to challenges to guilty pleas based on ineffective assistance of counsel.’” Id. at 391 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “[I]n order to satisfy the “prejudice” requirement [of the Strickland test], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 .

2024“This ‘test applies to challenges to guilty pleas based on ineffective assistance of counsel.’” Id. at 391 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “[I]n order to satisfy the “prejudice” requirement [of the Strickland test], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 .

2026“When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance was reasonable.” McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)).

2026“When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance was reasonable.” McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)).

2022Ed. 2d 624 (2011)). “[B]oth parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986)).

2022Ed. 2d 624 (2011)). “[B]oth parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986)).

2026See Searight, 423 S.W.3d at 231 .

2025However, the Supreme Court has also ruled that an evidentiary hearing is unnecessary when the movant cannot show -6- prejudice under the second prong of Strickland, reasoning that “[t]he Strickland test requires the movant to carry the burden of meeting both prongs in order to succeed with an ineffective assistance of counsel argument.” Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014) (citations omitted).

2026“When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance was reasonable.” McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)).

2022Commonwealth v. Bussell, 226 S.W.3d 96, 99-103 (Ky. 2007) (internal quotation marks, footnotes, and citations omitted). 2 We have considered all of the parties’ sundry arguments but will discuss only those we deem necessary; the remainder are irrelevant or otherwise without merit. -4- The United States Supreme Court has issued an opinion addressing this specific issue: [W]here a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proc

2024“This ‘test applies to challenges to guilty pleas based on ineffective assistance of counsel.’” Id. at 391 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “[I]n order to satisfy the “prejudice” requirement [of the Strickland test], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 .

2024“This ‘test applies to challenges to guilty pleas based on ineffective assistance of counsel.’” Id. at 391 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “[I]n order to satisfy the “prejudice” requirement [of the Strickland test], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 .

2022Stated simply, the appellant must prove both that counsel erred, and 5 Strickland is the controlling United States Supreme Court case law on the issue of ineffective assistance of counsel and, in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), the Supreme Court of Kentucky adopted the Strickland standard. -4- that counsel’s deficiency prejudiced his case; otherwise, “it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

2022Stated simply, the appellant must prove both that counsel erred, and 5 Strickland is the controlling United States Supreme Court case law on the issue of ineffective assistance of counsel and, in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), the Supreme Court of Kentucky adopted the Strickland standard. -4- that counsel’s deficiency prejudiced his case; otherwise, “it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

2021Second, the defendant must show that the deficient performance prejudiced the defense.5 5 466 U.S. 668, 687 , (1984). 4 When a defendant pleads guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must determine “whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required.”7 An RCr 11.42 motion

2021Second, the defendant must show that the deficient performance prejudiced the defense.5 5 466 U.S. 668, 687 , (1984). 4 When a defendant pleads guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must determine “whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required.”7 An RCr 11.42 motion

2021Second, the defendant must show that the deficient performance prejudiced the defense.5 5 466 U.S. 668, 687 , (1984). 4 When a defendant pleads guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must determine “whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required.”7 An RCr 11.42 motion

2021Second, the defendant must show that the deficient performance prejudiced the defense.5 5 466 U.S. 668, 687 , (1984). 4 When a defendant pleads guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must determine “whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required.”7 An RCr 11.42 motion

2023See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

2023See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

2024Where a defendant has pled guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), accord Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001).

2024Where a defendant has pled guilty, he must satisfy the “prejudice prong” of the Strickland test by showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), accord Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001).

2012Pridham appealed that ruling to the Court of Appeals, and while his case was pending, the United States Supreme Court issued its Padilla opinion, in which it reversed our decision and held that for non-citizens the deportation consequences of a criminal conviction are so severe, so penalty-Iike, and so intimately related to the criminal process as to make the collateral versus direct distinction upon which we had relied “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” 130 S.Ct. at 1482 .

2012Pridham appealed that ruling to the Court of Appeals, and while his case was pending, the United States Supreme Court issued its Padilla opinion, in which it reversed our decision and held that for non-citizens the deportation consequences of a criminal conviction are so severe, so penalty-Iike, and so intimately related to the criminal process as to make the collateral versus direct distinction upon which we had relied “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” 130 S.Ct. at 1482 .

2019Rather, it applied the standard set forth in United States v. Cronic, 466 U.S. 648, 659 (1984), which stated: “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial 5 testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Applying Cronic, the Court of Appeals held that, while “Alger’s trial counsel performed some pretrial work on behalf of his client, including a successful motion to suppress[,] ... an examination of the record at trial reflects that counsel made no genuine effort to sup

2019Rather, it applied the standard set forth in United States v. Cronic, 466 U.S. 648, 659 (1984), which stated: “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial 5 testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Applying Cronic, the Court of Appeals held that, while “Alger’s trial counsel performed some pretrial work on behalf of his client, including a successful motion to suppress[,] ... an examination of the record at trial reflects that counsel made no genuine effort to sup

2025As explained in Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), “[t]he test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Ineffective assistance of counsel claims are analyzed using the two Strickland factors.

2025An evidentiary hearing is frequently necessary “to determine whether the failure to introduce mitigating evidence was trial strategy, or ‘an abdication of advocacy.’” Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (quoting Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997)).

2025An evidentiary hearing is frequently necessary “to determine whether the failure to introduce mitigating evidence was trial strategy, or ‘an abdication of advocacy.’” Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (quoting Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997)).

2025From the context and timeframe of these hearings, it appears unlikely that the prior offer would have been discussed. -9- “A defense attorney’s failure to notify his client of a prosecutor’s plea offer constitutes ineffective assistance of counsel under the Sixth Amendment and satisfies the first element of the Strickland test.” Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003).

2025From the context and timeframe of these hearings, it appears unlikely that the prior offer would have been discussed. -9- “A defense attorney’s failure to notify his client of a prosecutor’s plea offer constitutes ineffective assistance of counsel under the Sixth Amendment and satisfies the first element of the Strickland test.” Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003).

2024“In the context of guilty pleas, the prejudice prong is satisfied when the defendant shows ‘that there -13- is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008) (quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S. Ct. 366, 370 , 88 L.

2024“In the context of guilty pleas, the prejudice prong is satisfied when the defendant shows ‘that there -13- is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Commonwealth v. Carneal, 274 S.W.3d 420, 431 (Ky. 2008) (quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S. Ct. 366, 370 , 88 L.

2023Osborne v. Commonwealth, 992 S.W.2d 860, 863 (Ky. App. 1998).

2023Osborne v. Commonwealth, 992 S.W.2d 860, 863 (Ky. App. 1998).

2023Similarly, in Garcia v. United States, a petitioner convicted of multiple counts of distributing methamphetamine insisted during plea negotiations and trial that he never brought meth to South Dakota and consequently could not sign the factual basis statement required for a plea agreement. 679 F.3d 1013, 1014 (8th Cir. 2012).

2023Similarly, in Garcia v. United States, a petitioner convicted of multiple counts of distributing methamphetamine insisted during plea negotiations and trial that he never brought meth to South Dakota and consequently could not sign the factual basis statement required for a plea agreement. 679 F.3d 1013, 1014 (8th Cir. 2012).

2022Both components of the Strickland test “involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). “[M]ixed questions of law and fact in collateral proceedings . . . are reviewed de novo[.]” Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013) (citing Brown, 253 S.W.3d at 500 ).

2022Both components of the Strickland test “involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). “[M]ixed questions of law and fact in collateral proceedings . . . are reviewed de novo[.]” Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013) (citing Brown, 253 S.W.3d at 500 ).

2022As noted by Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc): “The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). “[B]oth parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

2022As noted by Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc): “The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). “[B]oth parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

2022This comports with Nixon’s holding that “if counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.” Nixon, 125 S.Ct. at 563 . 6 Commonwealth, 504 S.W.3d 44, 52 (Ky. 2016).

2022This comports with Nixon’s holding that “if counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.” Nixon, 125 S.Ct. at 563 . 6 Commonwealth, 504 S.W.3d 44, 52 (Ky. 2016).