Emmanuel Curry v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: May 1, 2026
• Docket: 2025-CA-0907
• Status: Unpublished

Opinion

RENDERED: MAY 1, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0907-MR

EMMANUEL CURRY APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE MARY K. MOLLOY, JUDGE ACTION NO. 21-CR-00213

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND EASTON, JUDGES.

EASTON, JUDGE: Appellant Emmanuel Curry (Curry), pro se, appeals from an

Order of the Kenton Circuit Court denying his RCr1 11.42 motion without an

evidentiary hearing. Following an open plea, Curry was sentenced to 20 years’

imprisonment for possession of child pornography and tampering with physical

evidence. Curry alleges his counsel was ineffective by failing to obtain a plea offer

1 Kentucky Rules of Criminal Procedure. from the Commonwealth, by advising him to enter an open plea in lieu of

proceeding to a jury trial, and by failing to present mitigating evidence to the

circuit court prior to sentencing. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In April 2021, Curry was indicted on 69 counts of Possessing or

Viewing Matter Portraying a Sexual Performance by a Minor in violation of KRS2

531.335, and one count of Tampering with Physical Evidence in violation of KRS

524.100. In April 2022, after the Commonwealth refused to offer a plea

agreement, Curry entered an open plea to all charges.

During the plea colloquy, Curry testified that he had read and

understood the Motion to Enter a Guilty Plea and understood that the charges were

for images he had on his phone and for trying to conceal his phone. Curry

confirmed he understood his rights and waived those rights by pleading guilty. He

acknowledged he had discussed his case and possible defenses with his attorney,

and he was satisfied with the services provided to him. Curry confirmed he

understood he was entering an open plea and that no plea offer had been made by

the Commonwealth.

Curry’s counsel informed the circuit court that the plea was consistent

with his advice because Curry did not really have any other viable option. Counsel

2 Kentucky Revised Statutes.

-2- also stated he explained the nature of the charges to Curry, discussed any possible

defenses, explained Curry’s constitutional rights to him in great detail, and

believed Curry understood what he was doing by entering the guilty plea.

After the circuit court accepted the plea, the Commonwealth told the

court it would present evidence at the sentencing hearing to support its request for

the maximum penalty. Curry’s counsel said he would submit an alternative

sentencing plan for the court’s consideration, and that this plan would include the

psychological evaluation performed by Dr. Ed Connor, a general and forensic

psychologist hired by the defense.

At the sentencing hearing in June 2022, the Commonwealth presented

testimony from the detective who investigated the case. He was cross-examined

by Curry’s counsel. Curry then read a written statement into the record

acknowledging his crimes, expressing remorse, and asking for mercy in

sentencing.

Curry’s counsel and the Commonwealth each made arguments as to

the imposition of sentence. Curry’s counsel requested Curry be placed on

probation through the Mental Health Court program, noting Curry was designated

as “low risk” by probation and parole, by the Commonwealth’s evaluator who

performed the sex offender assessment ordered by the circuit court, and by Dr.

Connor. Considering Curry’s low risk and abusive childhood referenced in Dr.

-3- Connor’s evaluation, counsel argued Curry would receive more effective treatment

in the community than in prison. The Commonwealth argued in favor of the

maximum sentence of 20 years’ imprisonment due to the indescribably vile content

of the numerous images and videos possessed by Curry.

The circuit court ultimately sentenced Curry to the maximum, a total

of 20 years’ imprisonment. Curry did not appeal his conviction and sentence.

Rather, in May 2025, he filed a Motion to Vacate and/or Set Aside Judgment of

Conviction and Sentence pursuant to RCr 11.42 and requested an evidentiary

hearing. Curry argued he was denied effective assistance of counsel because his

attorney failed to secure a plea deal and recommended an open plea. The circuit

court denied the motion without a hearing, and Curry filed this timely appeal.

STANDARD OF REVIEW

We evaluate ineffective assistance of counsel claims under the

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), adopted by the

Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).

Under the Strickland framework, an appellant must first show that counsel’s

performance was deficient. Strickland, 466 U.S. at 687. A “deficient

performance” contains errors “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the

appellant must show that counsel’s deficient performance prejudiced his defense at

-4- trial. Id. “This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Id. An appellant must

satisfy both elements of the Strickland test in order to merit relief. Id.

In order to show actual prejudice in the context of a guilty plea, a

defendant must demonstrate that there is a reasonable probability that, but for

counsel’s unprofessional errors, he would not have pled guilty and would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).

Courts presume that counsel’s performance was reasonable.

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citations

omitted). We must analyze counsel’s overall performance and the totality of

circumstances to determine if the challenged conduct can overcome the strong

presumption that counsel’s performance was reasonable. We apply the de novo

standard when reviewing counsel’s performance under Strickland. Id.

When the trial court does not hold an evidentiary hearing on an RCr

11.42 motion, we review “whether the motion on its face states grounds that are

not conclusively refuted by the record and which, if true, would invalidate the

conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967) (citations

omitted). Kentucky law requires an evidentiary hearing only “if there is a material

issue of fact that cannot be conclusively resolved, i.e., conclusively proved or

-5- disproved, by an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d

448, 452 (Ky. 2001) (citations omitted).

BRIEF NON-COMPLIANCE

Before we turn to Curry’s arguments, we must address the

deficiencies in his brief. While this Court recognizes that Curry is a pro se litigant,

that does not exempt him from the requirement to follow the Kentucky Rules of

Appellate Procedure (RAP). See Hamilton v. Milbry, 676 S.W.3d 42, 44 (Ky. App.

2023). Curry’s brief fails to comply with multiple provisions of our RAP.

Specifically, Curry’s brief contains absolutely no references to the record below,

nor does it contain a preservation statement referencing where his arguments were

properly preserved for review. He does cite case law to support his arguments, but

those arguments are unorganized and somewhat difficult to discern. All of these

deficiencies are violations of RAP 32. But because the record in this case is not

voluminous, we will overlook Curry’s non-compliance and proceed with our

review while stating we do not condone the deficiencies in Curry’s brief.

ANALYSIS

Curry raises the same issues on appeal as he argued before the circuit

court: that he was denied effective assistance of counsel due to trial counsel’s

failure to secure a plea deal and in recommending an open plea. We disagree.

-6- To prove ineffective assistance of counsel where a guilty plea has

been entered, the movant must establish:

(1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.

Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009) (citations omitted).

“[T]he trial court must evaluate whether errors by trial counsel significantly

influenced the defendant’s decision to plead guilty in a manner which gives the

trial court reason to doubt the voluntariness and validity of the plea.” Bronk v.

Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001).

Here, the circuit court noted it was well known that no plea bargains

were offered by the prosecutor in this jurisdiction in cases involving charges such

as those leveled against Curry. It is within the prosecutor’s sole discretion whether

to provide an offer to a plea agreement in a criminal case. See Flynt v.

Commonwealth, 105 S.W.3d 415, 425 (Ky. 2003) (“[P]rosecutors have the sole

discretion whether to engage in plea bargaining with a defendant”);

Commonwealth v. Corey, 826 S.W.2d 319, 321 (Ky. 1992) (“[W]hether to engage

in plea bargaining is a matter reserved to the sound discretion of the prosecuting

authority”); Commonwealth v. Reyes, 764 S.W.2d 62, 64 (Ky. 1989) (citing

-7- Weatherford v. Bursey, 429 U.S. 545 (1977)) (“No defendant has a constitutional

right to plea bargain. The prosecutor may engage in it or not in his sole discretion.

If he wishes, he may go to trial”). With the Commonwealth here offering no plea

agreement, Curry’s only options were to enter an open plea of guilty to the charges

or go to trial.

The evidence in this record is almost unimaginable. There were 47

separate images and 22 separate videos on Curry’s cell phone which contained acts

involving prepubescent minors, including children as young as newborn infants

with hospital bracelets still on them. The child victims were raped, anally and

orally sodomized, subjected to bestiality, bondage, and even the mutilation of the

female genitalia of a 2-year-old child. The evidence showed an escalation of

violent child pornography that included victims who were tied, gagged, and

tortured.

The Commonwealth refused to offer a plea agreement, with the

prosecuting attorney stating on the record this was the worst case of child

pornography she had ever seen and that she would not put her name on anything

less than the maximum for someone deriving pleasure from the type of videos

possessed by Curry. Again, the decision to refuse to plea bargain was within the

Commonwealth’s sole discretion under Kentucky law. As a result, Curry’s counsel

-8- committed no error by failing to secure a plea agreement that was never going to

be offered.

Counsel also did not render ineffective assistance by recommending

that Curry enter an open plea. Counsel stated at the plea hearing that Curry had no

defense to the charges and it was not in Curry’s best interest to try his case before a

jury. Such legal advice does not constitute ineffective assistance of counsel. See

Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky. 1983) (citations

omitted) (“It is well established that the advice by a lawyer for a client to plead

guilty is not an indication of any degree of ineffective assistance.”).

The circuit court also found no evidence which would raise doubts as

to the voluntariness and validity of the plea. We have reviewed the record and

likewise find no errors by counsel which raise doubt as to the voluntariness and

validity of the plea. Curry signed a written Motion to Enter a Guilty Plea. Curry

indicated at the plea colloquy that he was properly advised and comfortable with

entering a guilty plea. Curry has never claimed he was innocent of the charges, or

that his counsel failed to render an appropriate investigation of the facts, or that

counsel failed to secure witnesses on his behalf, or that he had any defense to the

charges.

Curry simply regrets his decision to enter an open guilty plea and,

after receiving the maximum sentence of imprisonment, wishes he had taken his

-9- chances with a jury. But hindsight or a change of heart is not a proper ground to

collaterally attack a judgment of conviction under RCr 11.42. Curry’s regret after

the fact is unrelated to trial counsel’s proper representation in recommending an

open plea. There is no evidence to support a finding that entering an open guilty

plea was not sound strategy.

In evaluating counsel’s performance, reviewing courts must “look to

the particular facts of the case and determine whether the acts or omissions were

outside the wide range of professionally competent assistance to the extent that the

errors caused the adversarial testing process not to work.” Harper v.

Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998) (internal quotation marks and

citations omitted). Second-guessing strategy with the benefit of hindsight should

be avoided.

Here, considering the particular evidence against Curry, counsel’s

strategy of entering an open plea with the hopes of receiving a lesser sentence from

the court, in lieu of presenting highly offensive evidence to a jury, was within the

range of professionally competent assistance. Curry’s counsel was not ineffective

by advising Curry to take the chance that a judge with more experience than any

given juror in dealing with such difficult matters might have imposed a lesser

sentence.

-10- In his handwritten pro se brief, Curry spends much time comparing

the sentence in his case to sentences imposed in other cases throughout Kentucky.

In presenting this argument, Curry misapplies the doctrine of stare decisis. Curry

appears to argue that it is unfair that others similarly charged received lesser

sentences. He extrapolates that if he had gone to trial he would have received a

lesser sentence.

This argument is pure speculation. It is possible that a jury might

have imposed a lesser sentence. But it is highly unlikely that a jury would have

given Curry a lesser sentence considering the disgusting and disturbing content of

the images and videos Curry enjoyed. Possibilities do not equate with the required

showing of prejudice. Curry simply cannot show prejudice from his counsel’s

actions.

Curry attempts to raise a new issue on appeal that trial counsel failed

to properly submit to the circuit court the psychological report of Dr. Connor,

which contained mitigation evidence that, if properly considered, would have

resulted in a lesser sentence. While it does not appear that this issue was properly

preserved, the record clearly refutes this claim anyway.

Curry’s Alternative Sentencing Plan was filed with the circuit court

clerk on June 3, 2022, and it included Dr. Connor’s 11-page Psychological and

Psychosexual Evaluation, as well as an “Update” letter from Dr. Connor dated

-11- April 19, 2022. This Court has reviewed the sentencing hearing held on June 6,

2022, where Curry was present while his counsel argued points made in Dr.

Connor’s evaluation in support of mitigation of sentence, while the

Commonwealth’s witness disputed the findings of Dr. Connor, and while the

Commonwealth’s attorney zealously challenged the opinions of Dr. Connor.

Finally, Curry insinuates that the judge had already made up her mind

before the sentencing hearing to give him the maximum. This is patently false.

The record shows that the judge clearly suffered through the unpleasant details of

the case during a relatively long sentencing hearing. She even took a recess before

stating her decision. Curry has offered no evidence for this unpreserved

accusation, and the record clearly refutes it.

CONCLUSION

Finding no error in the denial of Curry’s RCr 11.42 motion without an

evidentiary hearing, the decision of the Kenton Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Emmanuel Curry, pro se Russell Coleman Burgin, Kentucky Attorney General of Kentucky

Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky

-12-