RENDERED: SEPTEMBER 23, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1167-MR
CURTIS SNELL APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE GREGORY M. BARTLETT, JUDGE ACTION NO. 16-CR-00665
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.
JONES, JUDGE: Curtis Snell appeals from the Kenton Circuit Court’s order
denying the motion to vacate his sentence pursuant to RCr1 11.42. We affirm.
I. BACKGROUND
A full history of this case may be found in the Kentucky Supreme
Court’s unpublished opinion stemming from Snell’s direct appeal. Snell v.
1 Kentucky Rules of Criminal Procedure. Commonwealth, No. 2018-SC-000219-MR, 2020 WL 1846852 (Ky. Mar. 26,
2020). Briefly stated, Snell and his then-girlfriend, Jennifer Konkright, were at a
Florence bar in 2016, when Konkright engaged in a physical confrontation with a
female acquaintance, Linsey Kidwell. After Snell attempted to intervene in this
dispute, he was attacked by four of Kidwell’s friends, who happened to be
members of the “Bad to the Bone” motorcycle gang. Bar bouncers eventually
removed all combatants from the premises. Later that evening, Snell and
Konkright were driving when they happened upon Kidwell’s vehicle and began to
follow her. At some point, Konkright’s vehicle pulled alongside Kidwell’s
vehicle, and several gunshots were fired, striking Kidwell in the thigh and
abdomen. Snell claimed Konkright had fired the gun, but members of the
motorcycle gang, who were present in another nearby vehicle, identified Snell as
the shooter to investigating officers.
At his trial,2 the jury found Snell guilty of first-degree assault,3 four
counts of first-degree wanton endangerment,4 and being a first-degree persistent
felony offender (PFO).5 The jury recommended a consecutive sentence for all
2 Snell had two trials for these charges. His first trial ended in a mistrial when two jurors failed to report back to the trial court. 3 Kentucky Revised Statutes (KRS) 508.010, a Class B felony. 4 KRS 508.060, a Class D felony. 5 KRS 532.080.
-2- enhanced counts, totaling ninety years in prison, but the trial court ultimately
reduced this recommendation to a maximum statutory sentence of seventy years’
imprisonment.6 After the Kentucky Supreme Court affirmed his conviction on
direct appeal, Snell subsequently filed a pro se motion to vacate sentence under
RCr 11.42. The trial court summarily denied relief in a written order entered on
August 4, 2021. This appeal followed.
II. ANALYSIS
A successful petition for relief under RCr 11.42 based on ineffective
assistance of counsel must survive the twin prongs of “performance” and
“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985). The “performance” prong of Strickland requires as follows:
Appellant must show that counsel’s performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, or that counsel’s representation fell below an objective standard of reasonableness.
Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (internal quotation
marks and citations omitted). The “prejudice” prong requires a showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
6 “In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]” KRS 532.110(1)(c).
-3- whose result is reliable.” Commonwealth v. McGorman, 489 S.W.3d 731, 736
(Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).
Both Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted. “Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
This is a very difficult standard to meet. “Surmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473,
1485, 176 L. Ed. 2d 284 (2010). We review counsel’s performance under
Strickland de novo. McGorman, 489 S.W.3d at 736.
Snell made several different claims in his pro se RCr 11.42 motion to
the trial court, but he has abandoned all but one on appeal. We consider those
unbriefed claims to be waived. “An appellant’s failure to discuss particular errors
in his brief is the same as if no brief at all had been filed on those issues.” Milby v.
Mears, 580 S.W.2d 724, 727 (Ky. App. 1979); see also Grange Mut. Ins. Co. v.
Trude, 151 S.W.3d 803, 815-16 (Ky. 2004).
For his sole remaining issue, Snell contends his trial attorney was
ineffective when he failed to challenge the racial composition of the jury panel.
Snell describes himself as “an African American man that was convicted . . . for
shooting a white woman.” (Appellant’s Brief at 6.) In both of his trials, there were
-4- no African American people seated on the jury panels, and he was ultimately
convicted by a jury consisting entirely of white jurors. Snell argues his trial
attorney should have brought this apparent deficiency to the attention of the trial
court, and he suffered prejudice which resulted in his conviction and sentence.
In considering Snell’s argument, the trial court determined that, “short
[of] some actual Batson challenge[7] or other deficiency for the Court to examine,
there is no presumptive bias based on race alone within a jury.” (Record (R.) at
341.) The trial court quoted both our Supreme Court and the Supreme Court of the
United States in so ruling: “[d]efendants are not entitled to a jury of any particular
composition, . . . but the jury wheels, pools of names, panels, or venires from
which juries are drawn must not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative thereof.” Rodgers v.
Commonwealth, 285 S.W.3d 740, 759 (Ky. 2009) (quoting Taylor v. Louisiana,
419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975)).
A defendant may challenge a conviction based on a flawed venire-
selection process; see, e.g., Johnson v.
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RENDERED: SEPTEMBER 23, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1167-MR
CURTIS SNELL APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE GREGORY M. BARTLETT, JUDGE ACTION NO. 16-CR-00665
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.
JONES, JUDGE: Curtis Snell appeals from the Kenton Circuit Court’s order
denying the motion to vacate his sentence pursuant to RCr1 11.42. We affirm.
I. BACKGROUND
A full history of this case may be found in the Kentucky Supreme
Court’s unpublished opinion stemming from Snell’s direct appeal. Snell v.
1 Kentucky Rules of Criminal Procedure. Commonwealth, No. 2018-SC-000219-MR, 2020 WL 1846852 (Ky. Mar. 26,
2020). Briefly stated, Snell and his then-girlfriend, Jennifer Konkright, were at a
Florence bar in 2016, when Konkright engaged in a physical confrontation with a
female acquaintance, Linsey Kidwell. After Snell attempted to intervene in this
dispute, he was attacked by four of Kidwell’s friends, who happened to be
members of the “Bad to the Bone” motorcycle gang. Bar bouncers eventually
removed all combatants from the premises. Later that evening, Snell and
Konkright were driving when they happened upon Kidwell’s vehicle and began to
follow her. At some point, Konkright’s vehicle pulled alongside Kidwell’s
vehicle, and several gunshots were fired, striking Kidwell in the thigh and
abdomen. Snell claimed Konkright had fired the gun, but members of the
motorcycle gang, who were present in another nearby vehicle, identified Snell as
the shooter to investigating officers.
At his trial,2 the jury found Snell guilty of first-degree assault,3 four
counts of first-degree wanton endangerment,4 and being a first-degree persistent
felony offender (PFO).5 The jury recommended a consecutive sentence for all
2 Snell had two trials for these charges. His first trial ended in a mistrial when two jurors failed to report back to the trial court. 3 Kentucky Revised Statutes (KRS) 508.010, a Class B felony. 4 KRS 508.060, a Class D felony. 5 KRS 532.080.
-2- enhanced counts, totaling ninety years in prison, but the trial court ultimately
reduced this recommendation to a maximum statutory sentence of seventy years’
imprisonment.6 After the Kentucky Supreme Court affirmed his conviction on
direct appeal, Snell subsequently filed a pro se motion to vacate sentence under
RCr 11.42. The trial court summarily denied relief in a written order entered on
August 4, 2021. This appeal followed.
II. ANALYSIS
A successful petition for relief under RCr 11.42 based on ineffective
assistance of counsel must survive the twin prongs of “performance” and
“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985). The “performance” prong of Strickland requires as follows:
Appellant must show that counsel’s performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, or that counsel’s representation fell below an objective standard of reasonableness.
Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (internal quotation
marks and citations omitted). The “prejudice” prong requires a showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
6 “In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]” KRS 532.110(1)(c).
-3- whose result is reliable.” Commonwealth v. McGorman, 489 S.W.3d 731, 736
(Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).
Both Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted. “Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
This is a very difficult standard to meet. “Surmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473,
1485, 176 L. Ed. 2d 284 (2010). We review counsel’s performance under
Strickland de novo. McGorman, 489 S.W.3d at 736.
Snell made several different claims in his pro se RCr 11.42 motion to
the trial court, but he has abandoned all but one on appeal. We consider those
unbriefed claims to be waived. “An appellant’s failure to discuss particular errors
in his brief is the same as if no brief at all had been filed on those issues.” Milby v.
Mears, 580 S.W.2d 724, 727 (Ky. App. 1979); see also Grange Mut. Ins. Co. v.
Trude, 151 S.W.3d 803, 815-16 (Ky. 2004).
For his sole remaining issue, Snell contends his trial attorney was
ineffective when he failed to challenge the racial composition of the jury panel.
Snell describes himself as “an African American man that was convicted . . . for
shooting a white woman.” (Appellant’s Brief at 6.) In both of his trials, there were
-4- no African American people seated on the jury panels, and he was ultimately
convicted by a jury consisting entirely of white jurors. Snell argues his trial
attorney should have brought this apparent deficiency to the attention of the trial
court, and he suffered prejudice which resulted in his conviction and sentence.
In considering Snell’s argument, the trial court determined that, “short
[of] some actual Batson challenge[7] or other deficiency for the Court to examine,
there is no presumptive bias based on race alone within a jury.” (Record (R.) at
341.) The trial court quoted both our Supreme Court and the Supreme Court of the
United States in so ruling: “[d]efendants are not entitled to a jury of any particular
composition, . . . but the jury wheels, pools of names, panels, or venires from
which juries are drawn must not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative thereof.” Rodgers v.
Commonwealth, 285 S.W.3d 740, 759 (Ky. 2009) (quoting Taylor v. Louisiana,
419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975)).
A defendant may challenge a conviction based on a flawed venire-
selection process; see, e.g., Johnson v. Commonwealth, 292 S.W.3d 889, 892-94
(Ky. 2009), overruled on other grounds by Ray v. Commonwealth, 611 S.W.3d 250
(Ky. 2020). However, it is entirely the defendant’s burden to establish a violation.
Id. at 894 (citing Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579
7 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
-5- (1979)). Snell argues his trial attorney should have attempted to show that such a
violation took place here. However, jury panels in Kentucky are chosen by
an indifferent and color-blind computer that produces a randomized list of prospective jurors consisting of the county’s roll of registered voters, persons over the age of eighteen holding valid drivers’ licenses, and citizens of the state who have filed resident individual tax returns. KRS 29A.040; see Administrative Procedures for the Court of Justice, Part II, Sections 3 and 5.
Commonwealth v. Doss, 510 S.W.3d 830, 836 (Ky. 2016).
Snell fails to demonstrate exactly how Kenton County deviates from
the system described in Doss. His argument is entirely conclusory: “[t]he fact that
there were no African Americans in either jury panel must mean that there is a
systematic exclusion in the jury panel selection process.” (Appellant’s Brief at 9.)
“Conclusory allegations do not suffice to prove a claim of ineffective assistance of
counsel.” Commonwealth v. Crumes, 630 S.W.3d 630, 639 (Ky. 2021). Curiously,
Snell proffers that “[c]urrent census data shows that Kenton County is
approximately 91% white” (Appellant’s Brief at 9) without considering that this
alone may explain why a random selection of jurors would also tend to be white.
In any event, without “evidence of systematic exclusion . . . [m]ere use of raw
population statistics is insufficient.” Dickerson v. Commonwealth, 174 S.W.3d
451, 462 (Ky. 2005).
-6- Finally, as an alternative form of relief, Snell asks for an evidentiary
hearing to prove how “African Americans are being excluded, intentionally or
unintentionally, from the jury panels in Kenton County.” (Appellant’s Brief at 9-
10.) However, “RCr 11.42 motions are not intended to conduct further discovery
or fishing expeditions.” Prescott v. Commonwealth, 572 S.W.3d 913, 926 (Ky.
App. 2019). Speculative claims, i.e., “claim[s] that certain facts might be true . . .
cannot be the basis for RCr 11.42 relief.” Mills v. Commonwealth, 170 S.W.3d
310, 328 (Ky. 2005), overruled on other grounds by Leonard v. Commonwealth,
279 S.W.3d 151 (Ky. 2009).
III. CONCLUSION
For the foregoing reasons, we affirm the Kenton Circuit Court’s order
denying relief pursuant to RCr 11.42.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Mark D. Barry Assistant Attorney General Frankfort, Kentucky
-7-