RENDERED: JANUARY 17, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1443-MR
BILLY BENNETT APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE SARA B. GREGORY, JUDGE ACTION NO. 17-CR-00187
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
ECKERLE, JUDGE: Appellant, Billy Bennett, pro se (“Bennett”), seeks review of
an order of the Russell Circuit Court denying his motion to vacate his conviction
and sentence pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 11.42.
Bennett contends that his guilty plea was tainted by ineffective assistance of
counsel. We agree with the Trial Court that Bennett presented no evidence of
deficient performance or prejudice sufficient to warrant setting aside his guilty
plea. Hence, we affirm. On November 28, 2017, a Russell County Grand Jury returned an
indictment charging Bennett with multiple counts of Rape in the First Degree,
Sodomy in the First Degree, and Incest regarding sexual abuse perpetrated against
his two minor step-daughters between 2004 and 2017. Following his arrest,
Bennett made statements to the police admitting to the crimes.
On January 29, 2019, Bennett accepted a plea offer to many reduced
charges with a sentence recommendation of a total of 30 years to serve.
Approximately six months later, on July 15, 2019, the Trial Court entered a
judgment imposing the recommended sentence.
More than three years later, on April 25, 2022, Bennett filed a motion
pro se to alter, amend, or vacate his sentence. In his motion, Bennett alleged that:
(1) he had received inadequate notice of the charges; (2) counsel had failed to
investigate and obtain discovery material; and (3) counsel had failed to prepare and
develop a trial strategy. The Trial Court held an evidentiary hearing at which
Bennett and his trial counsel testified.
More than 18 months after Bennett filed his pro se motion, on
November 13, 2023, the Trial Court issued an order of denial. With regard to the
first claim, the Trial Court found that the indictment was valid on its face; Bennett
had the opportunity to seek a more specific bill of particulars from the
Commonwealth requesting detailed allegations against him; and he failed to do so.
-2- On the second and third claims, the Trial Court found no evidence that trial
counsel’s performance was deficient or that it affected Bennett’s decision to plead
guilty. Bennett now appeals from this order. Additional facts will be set forth
below as necessary.
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 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 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.
In the context of a guilty plea, the Trial Court must consider the
totality of the circumstances surrounding the guilty plea, evaluating whether errors
by trial counsel significantly influenced the defendant’s decision to plead guilty
such that the Trial Court should have a reason to doubt the voluntariness and
validity of the plea. Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016).
-3- See also Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012), and
Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009). When an evidentiary
hearing is held, RCr 11.42(6) requires the Trial Court to make findings on the
material issues of fact, which we review under a clearly erroneous standard.
Kentucky Rules of Civil Procedure (“CR”) 52.01.
Bennett first argues that his trial counsel failed to protect his rights
adequately by neglecting to object to the sufficiency of the charges set forth in the
indictment. But as the Trial Court noted, an indictment is sufficient if it fairly
informs the defendant of the nature of the crimes with which he is charged, without
detailing the factual elements. Howard v. Commonwealth, 554 S W 2d 375, 377
(Ky. 1977); see also RCr 6.10 and RCr 6.12. The indictment in this case set out
the nature of the charges, the approximate dates the offenses occurred, and the
victims involved. We agree with the Trial Court that the indictment was sufficient
on its face.
Additionally, a defect in an indictment is deemed waived unless raised
by a timely objection. Stark v. Commonwealth, 828 S.W.2d 603, 605 (Ky. 1991),
overruled on other grounds by Thomas v. Commonwealth, 931 S.W.2d 446 (Ky.
1996). Bennett’s trial counsel testified that she considered filing a request for a
more specific bill of particulars and discussed that option with Bennett. However,
she decided that such a motion was unnecessary because the discovery and the
-4- statements provided by the victims were specific in the time frames and acts
alleged. Based upon this uncontroverted evidence, we agree with the Trial Court
that Bennett failed to establish that his guilty plea was influenced by trial counsel’s
failure to challenge the indictment or bill of particulars.
Bennett next argues that he did not knowingly and voluntarily make
his guilty plea because his trial counsel failed to investigate sufficiently and obtain
readily available discovery material. This argument essentially encompasses the
second and third grounds that he had raised to the Trial Court.
It is well-established law that trial counsel must undertake a
reasonable investigation into facts and law that support a client’s defense. Wiggins
v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).
However, “[a] reasonable investigation is not an investigation that the best criminal
defense lawyer in the world, blessed not only with unlimited time and resources,
but also with the benefit of hindsight, would conduct.” Haight v. Commonwealth,
41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009). The focus of the inquiry must be on
whether trial counsel’s decision to refrain from pursuing evidence or defenses was
objectively reasonable under all the circumstances. Wiggins, 539 U.S. at 523, 123
S. Ct. at 2536.
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RENDERED: JANUARY 17, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1443-MR
BILLY BENNETT APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE SARA B. GREGORY, JUDGE ACTION NO. 17-CR-00187
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
ECKERLE, JUDGE: Appellant, Billy Bennett, pro se (“Bennett”), seeks review of
an order of the Russell Circuit Court denying his motion to vacate his conviction
and sentence pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 11.42.
Bennett contends that his guilty plea was tainted by ineffective assistance of
counsel. We agree with the Trial Court that Bennett presented no evidence of
deficient performance or prejudice sufficient to warrant setting aside his guilty
plea. Hence, we affirm. On November 28, 2017, a Russell County Grand Jury returned an
indictment charging Bennett with multiple counts of Rape in the First Degree,
Sodomy in the First Degree, and Incest regarding sexual abuse perpetrated against
his two minor step-daughters between 2004 and 2017. Following his arrest,
Bennett made statements to the police admitting to the crimes.
On January 29, 2019, Bennett accepted a plea offer to many reduced
charges with a sentence recommendation of a total of 30 years to serve.
Approximately six months later, on July 15, 2019, the Trial Court entered a
judgment imposing the recommended sentence.
More than three years later, on April 25, 2022, Bennett filed a motion
pro se to alter, amend, or vacate his sentence. In his motion, Bennett alleged that:
(1) he had received inadequate notice of the charges; (2) counsel had failed to
investigate and obtain discovery material; and (3) counsel had failed to prepare and
develop a trial strategy. The Trial Court held an evidentiary hearing at which
Bennett and his trial counsel testified.
More than 18 months after Bennett filed his pro se motion, on
November 13, 2023, the Trial Court issued an order of denial. With regard to the
first claim, the Trial Court found that the indictment was valid on its face; Bennett
had the opportunity to seek a more specific bill of particulars from the
Commonwealth requesting detailed allegations against him; and he failed to do so.
-2- On the second and third claims, the Trial Court found no evidence that trial
counsel’s performance was deficient or that it affected Bennett’s decision to plead
guilty. Bennett now appeals from this order. Additional facts will be set forth
below as necessary.
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 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 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.
In the context of a guilty plea, the Trial Court must consider the
totality of the circumstances surrounding the guilty plea, evaluating whether errors
by trial counsel significantly influenced the defendant’s decision to plead guilty
such that the Trial Court should have a reason to doubt the voluntariness and
validity of the plea. Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016).
-3- See also Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012), and
Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009). When an evidentiary
hearing is held, RCr 11.42(6) requires the Trial Court to make findings on the
material issues of fact, which we review under a clearly erroneous standard.
Kentucky Rules of Civil Procedure (“CR”) 52.01.
Bennett first argues that his trial counsel failed to protect his rights
adequately by neglecting to object to the sufficiency of the charges set forth in the
indictment. But as the Trial Court noted, an indictment is sufficient if it fairly
informs the defendant of the nature of the crimes with which he is charged, without
detailing the factual elements. Howard v. Commonwealth, 554 S W 2d 375, 377
(Ky. 1977); see also RCr 6.10 and RCr 6.12. The indictment in this case set out
the nature of the charges, the approximate dates the offenses occurred, and the
victims involved. We agree with the Trial Court that the indictment was sufficient
on its face.
Additionally, a defect in an indictment is deemed waived unless raised
by a timely objection. Stark v. Commonwealth, 828 S.W.2d 603, 605 (Ky. 1991),
overruled on other grounds by Thomas v. Commonwealth, 931 S.W.2d 446 (Ky.
1996). Bennett’s trial counsel testified that she considered filing a request for a
more specific bill of particulars and discussed that option with Bennett. However,
she decided that such a motion was unnecessary because the discovery and the
-4- statements provided by the victims were specific in the time frames and acts
alleged. Based upon this uncontroverted evidence, we agree with the Trial Court
that Bennett failed to establish that his guilty plea was influenced by trial counsel’s
failure to challenge the indictment or bill of particulars.
Bennett next argues that he did not knowingly and voluntarily make
his guilty plea because his trial counsel failed to investigate sufficiently and obtain
readily available discovery material. This argument essentially encompasses the
second and third grounds that he had raised to the Trial Court.
It is well-established law that trial counsel must undertake a
reasonable investigation into facts and law that support a client’s defense. Wiggins
v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).
However, “[a] reasonable investigation is not an investigation that the best criminal
defense lawyer in the world, blessed not only with unlimited time and resources,
but also with the benefit of hindsight, would conduct.” Haight v. Commonwealth,
41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009). The focus of the inquiry must be on
whether trial counsel’s decision to refrain from pursuing evidence or defenses was
objectively reasonable under all the circumstances. Wiggins, 539 U.S. at 523, 123
S. Ct. at 2536. In other words, the question is “whether the known evidence would
lead a reasonable attorney to investigate further.” Id. at 527, 123 S. Ct. at 2538.
-5- Bennett focuses on his trial counsel’s declination to request a more
specific bill of particulars, which we have already found to be neither deficient nor
prejudicial. Bennett also contends that his trial counsel failed to conduct an
adequate investigation into the factual allegations against him.
“A guilty plea is involuntary if the defendant lacked full awareness of
the direct consequences of the plea or relied on a misrepresentation by the
Commonwealth or the trial court.” Edmonds v. Commonwealth, 189 S.W.3d 558,
566 (Ky. 2006). See also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.
Ed. 2d 274 (1969). A defendant’s statements and sworn testimony during a plea
colloquy play a role in determining, based upon the record, whether his plea was
knowing and voluntary. See Elza, 284 S.W.3d at 122 (utilizing a defendant’s
“statements and demeanor” at the plea colloquy as evidence against allegations of
coercion and deficient performance). Such “[s]olemn declarations in open court
carry a strong presumption of verity.” Edmonds, 189 S.W.3d at 569, (quoting
Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (Ky.
1977)). Mere conclusory allegations, unsupported by specifics, are insufficient to
overcome the presumption of a valid guilty plea. Blackledge, supra at 74, 97 S. Ct.
at 1629.
Here, during his guilty plea colloquy, Bennett advised the Trial Court
under oath that he was satisfied with his counsel’s representation. During the
-6- evidentiary hearing on the 11.42 motion, the Trial Court found that Bennett’s
claims to the contrary were belied by both his own testimony and the testimony of
his trial counsel. Both testified that they had reviewed the witness statements and
Bennett’s statement to police. In addition, both testified that they had discussed
possible trial strategies and defenses. In addition, trial counsel testified that
Bennett wanted to avoid a trial due to the nature of the allegations against him, his
recorded confession, the limited defenses available, and the length of the sentence
he faced. Indeed, Bennett admitted at the evidentiary hearing that he had entered a
guilty plea based on his perception of the likely outcome of a jury trial.
As the Trial Court noted, Bennett was facing a potential 70-year
sentence on a multitude of charges stemming from his admitted, continued,
depraved criminality upon children. Bennett does not challenge the sufficiency of
the Trial Court’s factual findings concerning his counsel’s representation. Under
the circumstances, we agree with the Trial Court that Bennett failed to establish
either that his trial counsel provided deficient representation or that he would not
have otherwise accepted the guilty plea.
Accordingly, we affirm the order of the Russell Circuit Court denying
Bennett’s RCr 11.42 motion.
ALL CONCUR.
-7- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Billy Bennett, pro se Russell Coleman Beattyville, Kentucky Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-8-