RENDERED: JULY 14, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0536-MR
JIMMY HALL APPELLANT
APPEAL FROM BUTLER CIRCUIT COURT v. HONORABLE PHILLIP PATTON, JUDGE ACTION NO. 14-CR-00059
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Jimmy Hall (Hall) filed a motion pursuant to RCr1 11.42
seeking a new trial due to allegations of ineffective assistance of trial counsel. The
trial court denied relief, and he appeals. We affirm.
1 Kentucky Rules of Criminal Procedure. FACTS
In 2014, Hall engaged in sexual intercourse and sodomy with a young
girl who was only twelve (12) years old. The two had met on a telephone chat line
and Hall had told the young girl that he was just a few years older than she, but he
was actually fifty-six (56) years old. After the encounter, which took place in a
hotel room, the young girl told her mother what had occurred, and her mother
contacted the police.
While officers were at the young girl’s home responding to her
mother’s call, Hall began calling and texting her. Police were able to determine his
location via the cell signal and Hall was arrested. During an interrogation, Hall
admitted to having sex with the girl and acknowledged she had just turned thirteen
(13) years old.
He was tried on charges of use of electronic communications system
to procure a minor to sexual activity, two counts of unlawful transaction with a
minor, and being a persistent felony offender in the first degree. The jury found
him guilty of all charges and he was sentenced to life imprisonment.2
2 The trial court improperly ordered Hall’s two life sentences and a twenty-year sentence to all run consecutively. On direct appeal, the Kentucky Supreme Court reversed the sentence and remanded the matter for entry of a corrected judgment imposing a life sentence.
It is well established that life sentences may not be ordered to run consecutively. Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 199[3), as modified on denial of reh’g (Jan. 31, 1994)]. Nor, when imposed as a result of the same trial, may a sentence for a term of years
-2- Following a direct appeal wherein his conviction was affirmed, Hall
filed a motion pursuant to RCr 11.42 seeking relief for ineffective assistance of
trial counsel. In the memorandum filed in support of the motion, counsel for Hall
argued trial counsel had been ineffective for failing to object to the testimony of a
hotel housekeeper. The housekeeper testified she threw away a blood-stained
bedsheet after cleaning the room in which the two had stayed. Further, it was
alleged that trial counsel had been ineffective by failing to present any mitigating
evidence concerning a history of abuse suffered by Hall and possible mental illness
during the penalty phase of his trial.
The trial court denied relief, without holding an evidentiary hearing,
finding that the record conclusively established Hall was not entitled to any relief.
The court referred to the opinion of the Kentucky Supreme Court, which pointed
out that the testimony of the housekeeper was brief, and the evidence of guilt was
overwhelming. As to the failure to present any evidence in mitigation, the court
run consecutively with a life sentence. See v. Commonwealth, 746 S.W.2d 401, 403-04 (Ky. 1988). While the trial court erred in ordering Hall’s sentences to run consecutively, the relief requested by Hall of a new sentencing hearing is inappropriate. Rather, the appropriate remedy is the remand of this case to the trial court for entry of a corrected judgment clarifying that Hall’s sentences are to run concurrently with each other.
Hall v. Commonwealth, No. 2015-SC-000714-MR, 2018 WL 898651, at *6 (Ky. Feb. 15, 2018).
-3- held that the vague allegations that the outcome may have been different if counsel
had called witnesses in mitigation were insufficient for a finding of ineffectiveness.
STANDARD OF REVIEW
We review the factual findings of the trial court for clear error. The
conclusions of law drawn therefrom are reviewed de novo. Ford v.
Commonwealth, 628 S.W.3d 147, 156 (Ky. 2021). On appeal, allegations of
ineffective assistance of counsel are reviewed in a two-part test. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test was
adopted by the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37
(Ky. 1985).
The first prong requires the appellant to show that the performance by
counsel was objectively deficient. The second prong requires a showing that that
deficient performance resulted in actual prejudice such that there exists a strong
probability that the outcome of the matter would have been more favorable to the
appellant without the instance of ineffectiveness. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064.
ANALYSIS
Whether an RCr 11.42 movant is entitled to an evidentiary hearing
regarding his claim of ineffectiveness is determined under a two-part test. First,
the movant must show that the “alleged error is such that the movant is entitled to
-4- relief under the rule.” Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001).
So, the trial court must assume that the factual allegations in the motion are true,
and only after such determination may turn to the question of whether there “has
been a violation of a constitutional right, a lack of jurisdiction, or such a violation
of a statute as to make the judgment void and therefore subject to collateral attack.”
Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky. 1974)). If that determination is
answered in the affirmative, then an evidentiary hearing is only required when the
motion raises “an issue of fact that cannot be determined on the face of the record.”
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
The trial court determined that the allegations made by Hall could be
refuted by the record. We do not disagree as the allegations were refuted by
review of the record alone.
Next, we address Hall’s allegation that trial counsel was ineffective
for failing to present evidence in mitigation during the sentencing phase. The trial
court found that the allegation of ineffectiveness was not made with sufficient
specificity in the motion. We agree with the trial court.
The motion filed in the trial court simply alleged that counsel failed to
make reasonable investigations into mitigation evidence that could be presented to
the sentencing jury. There is an acknowledgement that trial counsel’s investigator
-5- conducted investigations into the charges Hall faced but alleges that the
investigator was never tasked with searching for any evidence in mitigation.
However, even if we were to find that counsel’s performance fell
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RENDERED: JULY 14, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0536-MR
JIMMY HALL APPELLANT
APPEAL FROM BUTLER CIRCUIT COURT v. HONORABLE PHILLIP PATTON, JUDGE ACTION NO. 14-CR-00059
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Jimmy Hall (Hall) filed a motion pursuant to RCr1 11.42
seeking a new trial due to allegations of ineffective assistance of trial counsel. The
trial court denied relief, and he appeals. We affirm.
1 Kentucky Rules of Criminal Procedure. FACTS
In 2014, Hall engaged in sexual intercourse and sodomy with a young
girl who was only twelve (12) years old. The two had met on a telephone chat line
and Hall had told the young girl that he was just a few years older than she, but he
was actually fifty-six (56) years old. After the encounter, which took place in a
hotel room, the young girl told her mother what had occurred, and her mother
contacted the police.
While officers were at the young girl’s home responding to her
mother’s call, Hall began calling and texting her. Police were able to determine his
location via the cell signal and Hall was arrested. During an interrogation, Hall
admitted to having sex with the girl and acknowledged she had just turned thirteen
(13) years old.
He was tried on charges of use of electronic communications system
to procure a minor to sexual activity, two counts of unlawful transaction with a
minor, and being a persistent felony offender in the first degree. The jury found
him guilty of all charges and he was sentenced to life imprisonment.2
2 The trial court improperly ordered Hall’s two life sentences and a twenty-year sentence to all run consecutively. On direct appeal, the Kentucky Supreme Court reversed the sentence and remanded the matter for entry of a corrected judgment imposing a life sentence.
It is well established that life sentences may not be ordered to run consecutively. Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 199[3), as modified on denial of reh’g (Jan. 31, 1994)]. Nor, when imposed as a result of the same trial, may a sentence for a term of years
-2- Following a direct appeal wherein his conviction was affirmed, Hall
filed a motion pursuant to RCr 11.42 seeking relief for ineffective assistance of
trial counsel. In the memorandum filed in support of the motion, counsel for Hall
argued trial counsel had been ineffective for failing to object to the testimony of a
hotel housekeeper. The housekeeper testified she threw away a blood-stained
bedsheet after cleaning the room in which the two had stayed. Further, it was
alleged that trial counsel had been ineffective by failing to present any mitigating
evidence concerning a history of abuse suffered by Hall and possible mental illness
during the penalty phase of his trial.
The trial court denied relief, without holding an evidentiary hearing,
finding that the record conclusively established Hall was not entitled to any relief.
The court referred to the opinion of the Kentucky Supreme Court, which pointed
out that the testimony of the housekeeper was brief, and the evidence of guilt was
overwhelming. As to the failure to present any evidence in mitigation, the court
run consecutively with a life sentence. See v. Commonwealth, 746 S.W.2d 401, 403-04 (Ky. 1988). While the trial court erred in ordering Hall’s sentences to run consecutively, the relief requested by Hall of a new sentencing hearing is inappropriate. Rather, the appropriate remedy is the remand of this case to the trial court for entry of a corrected judgment clarifying that Hall’s sentences are to run concurrently with each other.
Hall v. Commonwealth, No. 2015-SC-000714-MR, 2018 WL 898651, at *6 (Ky. Feb. 15, 2018).
-3- held that the vague allegations that the outcome may have been different if counsel
had called witnesses in mitigation were insufficient for a finding of ineffectiveness.
STANDARD OF REVIEW
We review the factual findings of the trial court for clear error. The
conclusions of law drawn therefrom are reviewed de novo. Ford v.
Commonwealth, 628 S.W.3d 147, 156 (Ky. 2021). On appeal, allegations of
ineffective assistance of counsel are reviewed in a two-part test. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test was
adopted by the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37
(Ky. 1985).
The first prong requires the appellant to show that the performance by
counsel was objectively deficient. The second prong requires a showing that that
deficient performance resulted in actual prejudice such that there exists a strong
probability that the outcome of the matter would have been more favorable to the
appellant without the instance of ineffectiveness. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064.
ANALYSIS
Whether an RCr 11.42 movant is entitled to an evidentiary hearing
regarding his claim of ineffectiveness is determined under a two-part test. First,
the movant must show that the “alleged error is such that the movant is entitled to
-4- relief under the rule.” Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001).
So, the trial court must assume that the factual allegations in the motion are true,
and only after such determination may turn to the question of whether there “has
been a violation of a constitutional right, a lack of jurisdiction, or such a violation
of a statute as to make the judgment void and therefore subject to collateral attack.”
Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky. 1974)). If that determination is
answered in the affirmative, then an evidentiary hearing is only required when the
motion raises “an issue of fact that cannot be determined on the face of the record.”
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
The trial court determined that the allegations made by Hall could be
refuted by the record. We do not disagree as the allegations were refuted by
review of the record alone.
Next, we address Hall’s allegation that trial counsel was ineffective
for failing to present evidence in mitigation during the sentencing phase. The trial
court found that the allegation of ineffectiveness was not made with sufficient
specificity in the motion. We agree with the trial court.
The motion filed in the trial court simply alleged that counsel failed to
make reasonable investigations into mitigation evidence that could be presented to
the sentencing jury. There is an acknowledgement that trial counsel’s investigator
-5- conducted investigations into the charges Hall faced but alleges that the
investigator was never tasked with searching for any evidence in mitigation.
However, even if we were to find that counsel’s performance fell
below the range of reasonable performance, and we are not, we cannot say that
there was any prejudice realized from the lack of mitigation evidence presented.
Hall had a significant criminal history and was found to be a persistent felony
offender in the first degree. With that finding, the range of sentence was twenty
years to fifty years, or life. The jury recommended a life sentence, which was
imposed by the trial court. Given the seriousness of the allegations, it is mere
speculation that but for the failure to offer mitigation evidence, the sentence
recommended would have been less than life.
Further, the only specifics Hall points to are his troubled childhood of
being raised by an abusive and alcoholic father and his difficulties while in jail
awaiting trial. However, the psychologist who evaluated him for competency and
criminal responsibility prior to the trial found that he was feigning deficits and
psychological symptoms and that he was malingering. Further, Hall offers no
specificity as to witnesses or testimony which could have been presented at the
sentencing which might have been mitigating. As the Commonwealth points out,
it could have been counsel’s reasoned choice not to present this mitigation
-6- evidence as such would have invited rebuttal evidence which counsel thought
would not be in Hall’s best interest.
Even if we could find that counsel’s performance was deficient, which
we cannot, we could not disagree with the trial court’s conclusion that Hall was not
prejudiced. The evidence of his guilt of a heinous crime was overwhelming. The
victim’s testimony certainly supported the life sentence Hall received. When his
prior crimes in other jurisdictions are considered – personal crimes including
kidnapping, abduction, assault, and battery – they further support the sentence
received. No prejudice can be assumed.
Hall’s last allegation of error involves counsel’s failure to object to
the testimony of the housekeeper employed at the hotel where the sexual assault
took place and her testimony that she threw away blood-stained sheets she took
from the room. We agree that an objection should have been made to the
description of the sheet as it was not in evidence and there was no way of proving
that the blood found on the sheets had any connection to the sexual assault
allegation. However, we cannot find that but for the short testimony of the
housekeeper, Hall would have been acquitted. The testimony of the victim,
coupled with Hall’s confession during his interrogation, was more than sufficient
evidence upon which to find guilt.
-7- CONCLUSION
We agree with the trial court’s order that Hall was not entitled to relief
pursuant to RCr 11.42. He was not prejudiced by the performance of counsel such
that it can be held, but for any deficient performance of counsel, he would have
been found not guilty or sentenced to a lesser sentence. The trial court’s order is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Elias Kang-Bartlett Daniel Cameron Jacquelyn Bryant-Hayes Attorney General of Kentucky LaGrange, Kentucky Christina L. Romano Assistant Attorney General Frankfort, Kentucky
-8-