RENDERED: OCTOBER 28, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1201-MR
BENJAMIN ROSS WOODBURN APPELLANT
APPEAL FROM MCLEAN CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 18-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Appellant Benjamin Ross Woodburn (Woodburn) appeals
from the order of the McLean Circuit Court, entered on May 10, 2021, denying his
motion to vacate his sentence pursuant to Kentucky Rules of Criminal Procedure
(RCr) 11.42. Following review of the record, briefs, and applicable law, we
affirm. FACTS AND PROCEDURAL BACKGROUND
On November 5, 2018, Woodburn was indicted for third-degree rape
and third-degree unlawful transaction with a minor. It was alleged that he, while in
a position of authority or special trust,1 engaged in sexual intercourse with a female
minor, less than eighteen years of age, and gave her alcohol while knowing she
was under the age of eighteen. On December 17, 2018, he entered a guilty plea
accepting the Commonwealth’s offer of a sentence of one year for third-degree
rape and twelve months for unlawful transaction with a minor.
At the guilty plea hearing, a plea colloquy was conducted. Woodburn
acknowledged he signed the forms containing his guilty plea, discussed them with
his attorney, and understood their contents. When asked if he had any questions
for the trial court pertaining to his plea, Woodburn indicated he did not. A
sentencing hearing was scheduled for February 25, 2019. On February 20, 2019, a
motion for work release was filed, pursuant to Kentucky Revised Statutes (KRS)
439.265.
At the sentencing hearing, trial counsel questioned whether Woodburn
would be required to complete the sex offender treatment program (SOTP) as
indicated in the presentence investigation report. Trial counsel expressed
1 Woodburn was under contract with the McLean County school district for a teaching position at the time of the incident.
-2- confusion due to a previous conversation he had with a representative at the
Department of Corrections (DOC) indicating Woodburn would “not have to do it”
unless “probation and parole requires it.” The Commonwealth and a representative
from probation and parole confirmed, on the record, that Woodburn would have to
complete the program. The trial court then discussed the requirements of post-
incarceration supervision and informed Woodburn that failure to complete SOTP
was actionable by probation and parole. The trial court subsequently heard
arguments on Woodburn’s motion for work release.
A final judgment and sentence of imprisonment was entered on
February 27, 2019, sentencing Woodburn to one year and requiring him to register
as a sex offender for twenty years. On March 1, 2019, the trial court entered an
order denying Woodburn’s motion for work release. Two additional motions for
work release were subsequently filed and denied.
On January 26, 2021, Woodburn filed a motion to vacate his sentence
pursuant to RCr 11.42. He alleged that he received ineffective assistance of
counsel when his trial counsel failed to fully advise him of the consequences of
pleading guilty to a sex offense. An evidentiary hearing was held on April 12,
2021. Three witnesses testified during the hearing: Kentucky State Police Trooper
Shane Settle, the investigating officer; the victim; and Woodburn.
-3- At the hearing, the Commonwealth presented cell phone and location
data evidence indicating Woodburn and the victim were together on the date, time,
and near the location of the pled offenses. Trooper Settle testified that the victim
acknowledged engaging in intercourse with Woodburn to investigators and two
friends who also informed him that they observed physical markings on the victim
near the time of the incident. During her testimony at the evidentiary hearing, the
victim denied ever having intercourse with Woodburn or having any such physical
markings but confirmed she was with him on the date and time in question and that
he provided her with alcohol. She further acknowledged telling two friends and
law enforcement she engaged in intercourse with Woodburn but testified she was
motivated by a desire to garner popularity among her peers and was “hounded” by
investigators during her questioning. Woodburn testified that, prior to entry of his
guilty plea, trial counsel never informed him of post-incarceration supervision, he
believed he would not have to complete SOTP, and he believed he would be
granted work release.
The trial court denied Woodburn’s RCr 11.42 motion by its order
entered on May 10, 2021.
STANDARD OF REVIEW
A motion filed pursuant to RCr 11.42 is reviewed under the two-prong
test laid forth in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L.
-4- Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985),
which requires a showing by the movant that counsel’s performance was
“deficient” as measured by the objective standard of reasonableness under
“prevailing professional norms.” Once this prong is satisfied, it must then be
demonstrated whether counsel’s error resulted in a reasonable probability that the
outcome would have been different. In cases involving a guilty plea, the movant
must show that, but for counsel’s deficient performance, the movant would not
have pled guilty but would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). There is a strong presumption
that counsel’s representation is within the “wide range” of reasonable assistance.
Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012) (citing Strickland,
466 U.S. at 689, 104 S. Ct. at 2052). “Hindsight and second guesses” are
“inappropriate, and often more so, where a plea has been entered without a full
trial[.]” Id. at 876 (quoting Premo v. Moore, 562 U.S. 115, 132, 131 S. Ct. 733,
745-46, 178 L. Ed. 2d 649 (2011)). We review a trial court’s factual findings only
for clear error, but its application of legal standards de novo. Id. at 875.
ANALYSIS
We must first address deficiencies in the appellant brief, which does
not conform with the provisions of Kentucky Rules of Civil Procedure (CR)
76.12(4)(c)(iv) and (v). These provisions require an appellant’s brief to contain:
-5- (iv) A “STATEMENT OF THE CASE” consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.
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RENDERED: OCTOBER 28, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1201-MR
BENJAMIN ROSS WOODBURN APPELLANT
APPEAL FROM MCLEAN CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 18-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Appellant Benjamin Ross Woodburn (Woodburn) appeals
from the order of the McLean Circuit Court, entered on May 10, 2021, denying his
motion to vacate his sentence pursuant to Kentucky Rules of Criminal Procedure
(RCr) 11.42. Following review of the record, briefs, and applicable law, we
affirm. FACTS AND PROCEDURAL BACKGROUND
On November 5, 2018, Woodburn was indicted for third-degree rape
and third-degree unlawful transaction with a minor. It was alleged that he, while in
a position of authority or special trust,1 engaged in sexual intercourse with a female
minor, less than eighteen years of age, and gave her alcohol while knowing she
was under the age of eighteen. On December 17, 2018, he entered a guilty plea
accepting the Commonwealth’s offer of a sentence of one year for third-degree
rape and twelve months for unlawful transaction with a minor.
At the guilty plea hearing, a plea colloquy was conducted. Woodburn
acknowledged he signed the forms containing his guilty plea, discussed them with
his attorney, and understood their contents. When asked if he had any questions
for the trial court pertaining to his plea, Woodburn indicated he did not. A
sentencing hearing was scheduled for February 25, 2019. On February 20, 2019, a
motion for work release was filed, pursuant to Kentucky Revised Statutes (KRS)
439.265.
At the sentencing hearing, trial counsel questioned whether Woodburn
would be required to complete the sex offender treatment program (SOTP) as
indicated in the presentence investigation report. Trial counsel expressed
1 Woodburn was under contract with the McLean County school district for a teaching position at the time of the incident.
-2- confusion due to a previous conversation he had with a representative at the
Department of Corrections (DOC) indicating Woodburn would “not have to do it”
unless “probation and parole requires it.” The Commonwealth and a representative
from probation and parole confirmed, on the record, that Woodburn would have to
complete the program. The trial court then discussed the requirements of post-
incarceration supervision and informed Woodburn that failure to complete SOTP
was actionable by probation and parole. The trial court subsequently heard
arguments on Woodburn’s motion for work release.
A final judgment and sentence of imprisonment was entered on
February 27, 2019, sentencing Woodburn to one year and requiring him to register
as a sex offender for twenty years. On March 1, 2019, the trial court entered an
order denying Woodburn’s motion for work release. Two additional motions for
work release were subsequently filed and denied.
On January 26, 2021, Woodburn filed a motion to vacate his sentence
pursuant to RCr 11.42. He alleged that he received ineffective assistance of
counsel when his trial counsel failed to fully advise him of the consequences of
pleading guilty to a sex offense. An evidentiary hearing was held on April 12,
2021. Three witnesses testified during the hearing: Kentucky State Police Trooper
Shane Settle, the investigating officer; the victim; and Woodburn.
-3- At the hearing, the Commonwealth presented cell phone and location
data evidence indicating Woodburn and the victim were together on the date, time,
and near the location of the pled offenses. Trooper Settle testified that the victim
acknowledged engaging in intercourse with Woodburn to investigators and two
friends who also informed him that they observed physical markings on the victim
near the time of the incident. During her testimony at the evidentiary hearing, the
victim denied ever having intercourse with Woodburn or having any such physical
markings but confirmed she was with him on the date and time in question and that
he provided her with alcohol. She further acknowledged telling two friends and
law enforcement she engaged in intercourse with Woodburn but testified she was
motivated by a desire to garner popularity among her peers and was “hounded” by
investigators during her questioning. Woodburn testified that, prior to entry of his
guilty plea, trial counsel never informed him of post-incarceration supervision, he
believed he would not have to complete SOTP, and he believed he would be
granted work release.
The trial court denied Woodburn’s RCr 11.42 motion by its order
entered on May 10, 2021.
STANDARD OF REVIEW
A motion filed pursuant to RCr 11.42 is reviewed under the two-prong
test laid forth in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L.
-4- Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985),
which requires a showing by the movant that counsel’s performance was
“deficient” as measured by the objective standard of reasonableness under
“prevailing professional norms.” Once this prong is satisfied, it must then be
demonstrated whether counsel’s error resulted in a reasonable probability that the
outcome would have been different. In cases involving a guilty plea, the movant
must show that, but for counsel’s deficient performance, the movant would not
have pled guilty but would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). There is a strong presumption
that counsel’s representation is within the “wide range” of reasonable assistance.
Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012) (citing Strickland,
466 U.S. at 689, 104 S. Ct. at 2052). “Hindsight and second guesses” are
“inappropriate, and often more so, where a plea has been entered without a full
trial[.]” Id. at 876 (quoting Premo v. Moore, 562 U.S. 115, 132, 131 S. Ct. 733,
745-46, 178 L. Ed. 2d 649 (2011)). We review a trial court’s factual findings only
for clear error, but its application of legal standards de novo. Id. at 875.
ANALYSIS
We must first address deficiencies in the appellant brief, which does
not conform with the provisions of Kentucky Rules of Civil Procedure (CR)
76.12(4)(c)(iv) and (v). These provisions require an appellant’s brief to contain:
-5- (iv) A “STATEMENT OF THE CASE” consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.
(v) An “ARGUMENT” conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
Id. (emphasis added). The appellant’s brief contains minimal citations to the
record, no specific digital counter number as it relates to the video record, and no
statement of preservation at the beginning of its argument section for any
arguments raised on appeal with citations to the record demonstrating how they
were preserved for review.
Striking a brief for failure to provide citations to the record for factual
assertions and imposing the manifest injustice standard of review for an omitted
statement of preservation are available sanctions for these respective errors in
appellate briefing. CR 76.12(8); Ford v. Commonwealth, 628 S.W.3d 147, 155
(Ky. 2021); Commonwealth v. Roth, 567 S.W.3d 591, 595-96 (Ky. 2019).
However, after careful review and consideration, we will not strike the brief and
-6- will review the arguments under the ordinary Strickland analysis due to the
relatively small length of the record and the readily discernible issues presented for
argument. See Hallis v. Hallis, 328 S.W.3d 694, 698 (Ky. App. 2010).
The trial court denied Woodburn’s motion to vacate due to his failure
to include a signed verification, as required by RCr 11.42(2), and on the merits of
his motion. RCr 11.42(2) states:
The motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion.
(Emphasis added.)
A review of the record supports the trial court’s denial of Woodburn’s
motion for lack of verification.2 This is a mandatory requirement that must be
complied with, otherwise, the trial court lacks jurisdiction. Cleaver v.
Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978). On this reasoning alone,
dismissal of Woodburn’s motion was warranted.
2 At the conclusion of the April 12, 2021, evidentiary hearing, Woodburn’s counsel stated to the trial court that a verification was signed and completed. However, the record before this Court does not contain a written verification with the RCr 11.42 motion on file, and the appellant’s brief offers no argument on appeal addressing this nor does it provide a citation to the record on appeal where a verification could be located. It is an appellant’s responsibility to ensure that the record is complete on appeal, and it is to be assumed that the omitted record supports the decision of the trial court. See Hatfield v. Commonwealth, 250 S.W.3d 590, 600-01 (Ky. 2008) (citation omitted).
-7- As to the trial court’s decision on the merits of the underlying claims,
we further find no errors which would have compelled reversal had the motion
been compliant with the verification requirement.
In his brief, Woodburn devotes discussion to the requirements for a
knowing and voluntarily entered plea under Boykin v. Alabama, 395 U.S. 238, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Woodburn does not dispute he was
sufficiently aware of the rights he was waiving and the direct consequence of his
plea. Instead, he contends he was not sufficiently advised of various consequences
related to conviction for a sex offense. Specifically, Woodburn argues trial
counsel failed to advise him of the requirements of post-incarceration supervision
under KRS 532.043 and incorrectly advised him about completion of SOTP along
with its effect on his parole eligibility. Woodburn further alleges he was
incorrectly advised as to his eligibility for work release.
At the evidentiary hearing, Woodburn failed to offer any testimony
from trial counsel. This presented evidentiary hurdles because, as the movant
bringing a claim under RCr 11.42, he has the burden of establishing convincingly
he was deprived of a substantial right. Skaggs v. Commonwealth, 488 S.W.3d 10,
14 (Ky. App. 2016) (citation omitted). Due to the absence of trial counsel, there
was no testimony offered, aside from Woodburn’s, as to what he was or was not
advised of by trial counsel prior to the entry of his guilty plea.
-8- While it is a general rule that uncontradicted testimony of a fact is to
be considered conclusive, there are exceptions such as when the witness has a
stake or interest in the outcome of the litigation, in which case the trier of fact may
weigh the credibility of the testimony. Bullock v. Gay, 296 Ky. 489, 491, 177
S.W.2d 883, 885 (1944). Upon appeal of an order entered after an RCr 11.42
evidentiary hearing, a reviewing court must defer to the lower court on findings of
fact and assessment of witness credibility unless clearly erroneous. Skaggs, 488
S.W.3d at 14; Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012).
At the conclusion of all the witness testimony presented at the
evidentiary hearing, the trial court inquired about trial counsel’s absence as a
witness. Woodburn’s counsel responded that the record “bears out” the alleged
errors of trial counsel. However, a review of the record does not clearly
demonstrate what trial counsel advised Woodburn and only leaves room for the
type of second guessing that is impermissible in these actions. See Pridham, 394
S.W.3d at 875.
Woodburn had notice of post-incarceration supervision and SOTP
based on his affirmative acknowledgements during sentencing when he was asked
if he understood he would be subject to and required to complete them.
Additionally, any alleged deficiencies in trial counsel’s advice concerning SOTP
-9- and his work release eligibility would not warrant relief for ineffective assistance
under these circumstances. See Pridham, 394 S.W.3d at 882.
Lastly, we do not find any error in the trial court’s ruling that any
alleged deficient performance by counsel did not prejudice Woodburn. Witness
testimony demonstrates the victim stated she engaged in intercourse with
Woodburn, and there was corroborating evidence in the form of witnesses and cell
phone and location data placing Woodburn and the victim near the scene of the
incident where the offenses occurred. That the victim recanted her statement does
not alone satisfy the second Strickland prong. Kentucky law generally looks upon
recantations with skepticism. See Taylor v. Commonwealth, 175 S.W.3d 68, 71
(Ky. 2005), as modified on denial of reh’g (Nov. 23, 2005) (“[R]ecanted testimony
is not reliable and should therefore be given little weight . . . .”); Hensley v.
Commonwealth, 305 S.W.3d 434, 437 (Ky. App. 2010) (“That a witness has
recanted prior testimony is relevant to judging credibility, but it would not result in
an automatic dismissal of charges or an acquittal.”). Furthermore, there is nothing
in the record indicating the victim recanted the allegations prior to the entry of
Woodburn’s plea.
Woodburn finally asserts he had a defense based upon the assertion
that he was no longer providing services to the school the victim attended at the
time of the incident. But it is undisputed that Woodburn was still under contract
-10- with the McLean County school district and the victim was under the age of
eighteen, and the victim testified that she knew Woodburn from his position at her
school. Considering the totality of this evidence, it was not unreasonable for trial
counsel to advise Woodburn to accept the plea, and we do not find it reasonably
likely he would have rejected the plea in favor of proceeding to trial.
CONCLUSION
For the foregoing reasons, the McLean Circuit Court’s order denying
Woodburn's RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Steven L. Boling Daniel Cameron Owensboro, Kentucky Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
-11-