The Risk Manager, Summer 2005

By Senior Status Judge Stan Billingsley

Editor’s Note: This article is one of a series that has agreed to provide for Lawyers Mutual’s newsletter as a bar service. provides Internet legal research service specializing in Kentucky law. For more about LawReader go

Representing criminal clients is a dicey business. You can always expect that those sentenced to custody will consider filing an RCr 11.42 motion to vacate, set aside, or correct the sentence. Questioning your competence may be their only hope to avoid a prison sentence. In capital cases, you can expect the Department of Public Advocacy to assist in criticizing your work. The rule seems to be if all else fails, blame the lawyer.

It is not unusual in such situations for a malpractice claim to follow an RCr 11.42 motion. For example, on June 10, 2005 the Kentucky Court of Appeals considered a case in which the defendant, after losing such a motion, claimed malpractice by defense counsel for ineffective assistance of counsel. This appeal suggests that an update on the standards for effective assistance of counsel in terms of malpractice is timely.

The first thing to consider is that in Kentucky, “The two-pronged test for ineffective assistance of counsel is: 1) whether counsel made errors so serious that he was not functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense.” Martin v. Commonwealth, (U) NO. 2002-CA-002529-MR.

Next, note that in June of this year the U.S. Supreme Court in Rompilla v. Beard (545 U.S.___, 2005 WL 14211390 (2005)) expanded standards for legal competence required of defense counsel. Defense counsel concluded from the client’s and his family’s statements that an investigation of his early childhood would have been counterproductive. The Court ruled he should have investigated regardless of the client’s statements.

Finally, read the recent Kentucky Supreme Court decision inMills v. Commonwealth,(No. 2002-SC-000216-MR, Ky. 05/19/2005). It provides a full discussion of RCr 11.42 issues and standards. The key points made are:

"Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).... requires that Appellant show that his lawyer's performance was deficient, which requires showing that the lawyer made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Appellant must also show that the deficient performance prejudiced his defense, i.e., that there is a reasonable probability that but for counsel's error the result of the proceeding would have been different.

… a defendant is not guaranteed errorless counsel or counsel that can be judged ineffective by hindsight, but rather counsel rendering reasonably effective assistance.

… we must consider the totality of evidence before the jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.

An evidentiary hearing on an RCr 11.42 motion to set aside or vacate "is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser, 59 S.W.3d at 452. See also Newsome v. Commonwealth, 456 S.W.2d 686, 687 (Ky. 1970).

Conclusionary allegations which are not supported with specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery. Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993).

A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695. It is not enough for the defendant to show that the error by counsel had some conceivable effect on the outcome of the proceeding. Id.; Sanders v. Commonwealth, 89 S.W.3d 380, 386 (Ky. 2002).

In attempting to obtain post-conviction relief, the movant must present facts with sufficient particularity to generate a basis for relief. Foley v. Commonwealth, 17 S.W.3d 878, 890 (Ky. 2000).

It is not the function of this Court to usurp or second guess counsel's trial strategy. Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000).

Claims for RCr 11.42 relief raised just during 2005 include failure to:

  • strike a juror
  • object to prosecutorial misconduct
  • seek alibi witness
  • seek mental competency hearing
  • explain a plea bargain
  • preserve trial errors
  • seek funding for expert witness
  • investigate and challenge the validity of the search
  • conduct a thorough investigation into the facts of the case
  • consult with the client on trial strategy
  • present a defense
  • object to an improper jury instruction
  • develop a defense strategy that had any chance of success
  • advise the client of the defense of entrapment
  • offer certain testimony by avowal

Any of these claims, if proven, could result in a malpractice claim. The lesson of all this is that you should fully advise your client, investigate the case thoroughly, object to everything, keep good notes, and keep your fingers crossed.