ineffective assistance of counsel claim in Kentucky

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)).

2023“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.” Id. (citing Bussell, 226 S.W.3d at 103 ).

2026Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).

2026Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).

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)).

2024STANDARD OF REVIEW Appellate review of an ineffective assistance of counsel claim under RCr 11.42 requires that we evaluate “counsel’s overall performance and the totality of circumstances therein in order to determine if the challenged conduct can overcome the strong presumption that counsel’s performance was reasonable.” Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citations -7- omitted).

2026To establish an ineffective assistance of counsel claim, “Kentucky courts have adopted the two-prong analysis established in Strickland.” Commonwealth v. Lawson, 454 S.W.3d 843, 846 (Ky. 2014) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)).

2026SCHIERER DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO FURTHER INVESTIGATE Generally, to establish an ineffective-assistance-of-counsel claim, the movant must prove two elements under Strickland v. Washington, 466 U.S. 668, 687 (1984).

2026However, our Supreme Court has held that an evidentiary hearing is unnecessary when the appellant cannot show prejudice as required by Strickland: “Where the record is clear that an ineffective assistance of counsel claim would ultimately fail the prejudice prong of Strickland, regardless of the outcome of a hearing on the deficiency prong, the trial court should be affirmed even in the absence of such a hearing.” Id. (citing Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014)).

2024Cf. Haley v. Commonwealth, 586 S.W.3d 744 , 751 (Ky. App. 2019) (“Where the record is clear that an ineffective assistance of counsel claim would ultimately fail the prejudice prong of Strickland, regardless of the outcome of a hearing on the deficiency prong, the trial court should be affirmed even in the absence of such a hearing.”) (citing Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014)).

2021Id. at 872-73 . -22- Such is not the case here.

2013However, “[a]s a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal ... because there is usually no record or trial court ruling on which such a claim can be properly considered.” Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky.1998) (citing Caslin v. Commonwealth, 491 S.W.2d 832 (Ky.1973)).

2026See Bratcher v. Commonwealth, 406 S.W.3d 865, 870 (Ky. App. 2012) (citing Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999)) (“In evaluating counsel’s failure to object, we are mindful that counsel is not required to make useless objections and failure to do so is not ineffective assistance of counsel.”).

2025Regarding this first prong, “[w]here the ineffective assistance of counsel claim is that counsel erred by failing to object to jury instructions . . . , it must first be shown that the jury instructions were given in error[.]” Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999).

2023The burden is then on the defendant “to establish convincingly” that counsel’s performance was not reasonable and “that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceedings provided in RCr 11.42.” Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).

2023The burden is then on the defendant “to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief 4 The Kentucky Supreme Court adopted Strickland in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). -8- afforded by the post-conviction proceedings provided in RCr 11.42.” Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).

2021Standard of Review To establish ineffective assistance of counsel in the context of a guilty plea, “[t]he movant must demonstrate that: (1) defense counsel’s performance fell outside the wide range of professionally competent assistance; and that (2) a reasonable probability exists that, but for the deficient performance of counsel, the movant would not have pled guilty, but would have insisted on going to trial.” Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016). -5- “When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that co

2021To establish an ineffective assistance of counsel claim in the context of a guilty plea, “[t]he movant must -7- demonstrate that: (1) defense counsel’s performance fell outside the wide range of professionally competent assistance; and that (2) a reasonable probability exists that, but for the deficient performance of counsel, the movant would not have pled guilty, but would have insisted on going to trial.” Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016) (citing Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2020We considered similar arguments in Bronk v. Commonwealth,32 a case in which Bronk was prosecuted in circuit court as a youthful offender for crimes he committed in connection with a fire in which a firefighter was killed.33 After Bronk failed a polygraph examination that his counsel arranged but failed to attend, Bronk confessed to his involvement in the fire.34 He later agreed to plead guilty and testify against a co-defendant in exchange for a recommended sentence of twenty-five years’ imprisonment.35 The trial court accepted Bronk’s guilty plea, but postponed final sentencing until after th

2020We considered similar arguments in Bronk v. Commonwealth,32 a case in which Bronk was prosecuted in circuit court as a youthful offender for crimes he committed in connection with a fire in which a firefighter was killed.33 After Bronk failed a polygraph examination that his counsel arranged but failed to attend, Bronk confessed to his involvement in the fire.34 He later agreed to plead guilty and testify against a co-defendant in exchange for a recommended sentence of twenty-five years’ imprisonment.35 The trial court accepted Bronk’s guilty plea, but postponed final sentencing until after th

2026However, our Supreme Court has held that an evidentiary hearing is unnecessary when the appellant cannot show prejudice as required by Strickland: “Where the record is clear that an ineffective assistance of counsel claim would ultimately fail the prejudice prong of Strickland, regardless of the outcome of a hearing on the deficiency prong, the trial court should be affirmed even in the absence of such a hearing.” Id. (citing Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014)).

2021Thus, on appellate review, we cannot determine from the record whether counsel’s decision “was trial strategy, or ‘an abdication of advocacy.’” Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001) (quoting Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997)). -6- However, in Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014), the Kentucky Supreme Court explained that if the lower court ultimately acted properly in denying an RCr 11.42 motion on prejudice grounds without a hearing, a reviewing court would act in error to order “a nugatory hearing to determine trial strategy.” Therefore, “[w

2024Off. of Cts., 361 S.W.3d 867, 871 (Ky. 2011) (citing Yeoman, 983 S.W.2d at 464-65 ). 3 Rollins also seemingly attempts to argue on appeal an ineffective assistance of counsel claim, alleging that his guilty plea in Larue County was invalid because he was not advised of the requirement to register as a sex offender before his plea.

2024We do not address that as it is not properly before us and was not raised in the petitions below. -7- “Claim preclusion bars a party from re-litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action.” Yeoman, 983 S.W.2d at 465 .

1986Id. at 650 (citing Beasley v. U.S., 491 F.2d 687 (6th Cir.1974)). *226 Given our Courts’ recognition of the ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and its application to guilty plea challenges in Hill v. Lockhart, 474 U.S. -, 106 S.Ct. 366, 369 , 88 L.Ed.2d 203 (1985), we conclude that the time has come to re-examine the criteria for determining the effectiveness of trial counsel who fail to challenge an underlying felony conviction supporting a persistent felony offender charge.

1986Id. at 650 (citing Beasley v. U.S., 491 F.2d 687 (6th Cir.1974)). *226 Given our Courts’ recognition of the ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and its application to guilty plea challenges in Hill v. Lockhart, 474 U.S. -, 106 S.Ct. 366, 369 , 88 L.Ed.2d 203 (1985), we conclude that the time has come to re-examine the criteria for determining the effectiveness of trial counsel who fail to challenge an underlying felony conviction supporting a persistent felony offender charge.

2022We must also mention Commonwealth v. Thompson, 548 S.W.3d 881 (Ky. 2018), where the Kentucky Supreme Court held that the failure to inform a defendant that he would have to register as a sex offender was such deficient performance that it required an ineffective assistance of counsel hearing to determine prejudice.

2021The reviewing court is then obligated to consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington[1] inquiry into the performance of counsel[.] The factual findings of the circuit court and determinations of witness credibility are reviewed only for clear error, while the application of legal standards and precedents is reviewed de novo.” Commonwealth v. Thompson, 548 S.W.3d 881, 887 (Ky. 2018) (internal citations and quotation marks omitted).

2012Strickland; see also Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

2012Strickland; see also Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986).

2026See Bratcher v. Commonwealth, 406 S.W.3d 865, 870 (Ky. App. 2012) (citing Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999)) (“In evaluating counsel’s failure to object, we are mindful that counsel is not required to make useless objections and failure to do so is not ineffective assistance of counsel.”).

2026To establish an ineffective assistance of counsel claim, “Kentucky courts have adopted the two-prong analysis established in Strickland.” Commonwealth v. Lawson, 454 S.W.3d 843, 846 (Ky. 2014) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)).

2025In Z.T. v. M.T., 258 S.W.3d 31, 36-37 (Ky. App. 2008), this Court recognized that the statutory right to counsel logically includes the right to competent representation, and thus a parent may raise an ineffective assistance of counsel claim in this context.

2024Off. of Cts., 361 S.W.3d 867, 871 (Ky. 2011) (citing Yeoman, 983 S.W.2d at 464-65 ). 3 Rollins also seemingly attempts to argue on appeal an ineffective assistance of counsel claim, alleging that his guilty plea in Larue County was invalid because he was not advised of the requirement to register as a sex offender before his plea.

2024After hearing the above testimony from Simmons and Balinski, the trial court determined that there was “uncontroverted evidence in this case that the plea was voluntary[.]” The trial court also analyzed Collins’s claim under the ineffective assistance of counsel standard announced in Strickland v. Washington, 466 U.S. 668 (1984). “[T]o succeed in a standard claim of ineffectiveness of counsel, a defendant must show (1) deficient representation by counsel and (2) resulting prejudice to the defense.” Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015) (citing Strickland, 466 U.S. at 687 ).

2021Thus, on appellate review, we cannot determine from the record whether counsel’s decision “was trial strategy, or ‘an abdication of advocacy.’” Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001) (quoting Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997)). -6- However, in Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014), the Kentucky Supreme Court explained that if the lower court ultimately acted properly in denying an RCr 11.42 motion on prejudice grounds without a hearing, a reviewing court would act in error to order “a nugatory hearing to determine trial strategy.” Therefore, “[w