RENDERED: OCTOBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0760-MR
JOHN MCGUFFIN APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 14-CR-00076
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: John T. McGuffin (“McGuffin”) appeals the Grayson
Circuit Court’s order denying his motions for an evidentiary hearing and to vacate
the judgment under RCr1 11.42. After careful review, we affirm.
BACKGROUND
On November 15, 2013, in a controlled buy set up by the Leitchfield Police Department, a confidential informant purchased what he believed was two grams of 1 Kentucky Rules of Criminal Procedure. methamphetamine from McGuffin. A second controlled buy was carried out on January 15, 2014, with the same confidential informant purchasing what he thought was one gram of methamphetamine.
McGuffin v. Commonwealth, No. 2015-CA-000553-MR, 2016 WL 4575639, at *1
(Ky. App. Sept. 2, 2016). McGuffin was indicted for trafficking in a controlled
substance in the first degree (two or more grams of methamphetamine)2 and being
a persistent felony offender in the first degree (“PFO I”).3
Prior to trial, McGuffin’s counsel filed a notice indicating he intended
to use testimony and information from cases involving Bobby Skaggs, Brandy Lee,
Kimberly Holderman, Chad Clemons, and Acey Meredith. Record (“R.”) at 123.
At the outset of trial, McGuffin’s counsel presented the trial court with a list of
potential witnesses for the defense, which included Jacob Hayes, Kimberly
Holderman, Bobby Skaggs, Brandy Lee, Krishna “KeeKee” Rye,4 and Laura
Ferguson. R. at 134. However, trial counsel then informed the trial court he would
not be calling those witnesses because they remained under indictment and trial
counsel had been informed by their counsel that none would testify. Video Record
(“V.R.”) at 2/25/2019, 9:01:50.
2 Kentucky Revised Statutes (KRS) 218A.1412(1)(b), a Class C felony. 3 KRS 532.080(3). 4 McGuffin refers to this individual as KiKi Rye throughout his filings in the trial court and brief.
-2- At trial, the Commonwealth presented testimony from several
witnesses, including Detective Brandon Cook of the Leitchfield Police Department
and Greater Hardin County Drug Task Force. Detective Cook testified to
arranging the two controlled buys of methamphetamine from McGuffin using
Donald Russell, a confidential informant. Detective Cook arranged for audio
recording of both controlled buys. Both recordings were played for the jury.
Russell also testified at trial to purchasing methamphetamine from McGuffin on
the two occasions arranged by Detective Cook. McGuffin’s trial counsel did not
present testimony from any witnesses at trial.
Ultimately, the jury found McGuffin guilty of both charges and he
was sentenced by the trial court to imprisonment for twelve years. This Court
affirmed McGuffin’s conviction on direct appeal. McGuffin, 2016 WL 4575639, at
*1. The Supreme Court of Kentucky denied McGuffin’s motion for discretionary
review on March 14, 2018. McGuffin v. Commonwealth, No. 2016-SC-000533-D.
McGuffin filed his motion to vacate his sentence under RCr 11.42 and
for an evidentiary hearing on October 15, 2018. In his motion, McGuffin alleged
several grounds for ineffective assistance of counsel, including trial counsel’s
failure to conduct a proper pre-trial investigation and subpoena four witnesses:
Brandy Lee, Christy Russell, KiKi Rye, and Jacob Hayes. The trial court denied
McGuffin’s motion on grounds that it was untimely filed under RCr 11.42(10) and
-3- insufficiently specific under RCr 11.42(2). The trial court later denied McGuffin’s
motion to alter, amend, or vacate the judgment. This appeal followed.
STANDARD OF REVIEW
A successful claim of ineffective assistance of counsel must survive
the twin prongs of “performance” and “prejudice.” 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).
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).
A movant is not automatically entitled to an evidentiary hearing on his
motion under RCr 11.42. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky.
1993). “An evidentiary hearing is not necessary to consider issues already refuted
-4- by the record in the trial court. Conclusionary allegations which are not supported
with specific facts do not justify an evidentiary hearing because RCr 11.42 does
not require a hearing to serve the function of discovery.” Hodge v.
Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
We review a trial court’s judgment on an RCr 11.42 motion for abuse
of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014).
ANALYSIS
McGuffin raises three arguments on appeal: (1) the trial court
improperly denied his motion for being untimely; (2) the trial court erred in
denying his motion because it lacked specificity; and (3) he should be granted
leniency in compliance with procedural rules because he is appearing pro se.
First, McGuffin timely filed his motion pursuant to RCr 11.42. “Any
motion under this rule shall be filed within three years after the judgment becomes
final[.]” RCr 11.42(10). A final judgment is the “conclusive judgment in the case,
whether it be the final judgment of the appellate court on direct appeal or the
judgment of the trial court in the event no direct appeal was taken.” Palmer v.
Commonwealth, 3 S.W.3d 763, 764 (Ky. App. 1999). McGuffin’s conviction did
not become final until the Supreme Court of Kentucky denied his motion for
-5- discretionary review on March 14, 2018. McGuffin then filed his motion under
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RENDERED: OCTOBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0760-MR
JOHN MCGUFFIN APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 14-CR-00076
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: John T. McGuffin (“McGuffin”) appeals the Grayson
Circuit Court’s order denying his motions for an evidentiary hearing and to vacate
the judgment under RCr1 11.42. After careful review, we affirm.
BACKGROUND
On November 15, 2013, in a controlled buy set up by the Leitchfield Police Department, a confidential informant purchased what he believed was two grams of 1 Kentucky Rules of Criminal Procedure. methamphetamine from McGuffin. A second controlled buy was carried out on January 15, 2014, with the same confidential informant purchasing what he thought was one gram of methamphetamine.
McGuffin v. Commonwealth, No. 2015-CA-000553-MR, 2016 WL 4575639, at *1
(Ky. App. Sept. 2, 2016). McGuffin was indicted for trafficking in a controlled
substance in the first degree (two or more grams of methamphetamine)2 and being
a persistent felony offender in the first degree (“PFO I”).3
Prior to trial, McGuffin’s counsel filed a notice indicating he intended
to use testimony and information from cases involving Bobby Skaggs, Brandy Lee,
Kimberly Holderman, Chad Clemons, and Acey Meredith. Record (“R.”) at 123.
At the outset of trial, McGuffin’s counsel presented the trial court with a list of
potential witnesses for the defense, which included Jacob Hayes, Kimberly
Holderman, Bobby Skaggs, Brandy Lee, Krishna “KeeKee” Rye,4 and Laura
Ferguson. R. at 134. However, trial counsel then informed the trial court he would
not be calling those witnesses because they remained under indictment and trial
counsel had been informed by their counsel that none would testify. Video Record
(“V.R.”) at 2/25/2019, 9:01:50.
2 Kentucky Revised Statutes (KRS) 218A.1412(1)(b), a Class C felony. 3 KRS 532.080(3). 4 McGuffin refers to this individual as KiKi Rye throughout his filings in the trial court and brief.
-2- At trial, the Commonwealth presented testimony from several
witnesses, including Detective Brandon Cook of the Leitchfield Police Department
and Greater Hardin County Drug Task Force. Detective Cook testified to
arranging the two controlled buys of methamphetamine from McGuffin using
Donald Russell, a confidential informant. Detective Cook arranged for audio
recording of both controlled buys. Both recordings were played for the jury.
Russell also testified at trial to purchasing methamphetamine from McGuffin on
the two occasions arranged by Detective Cook. McGuffin’s trial counsel did not
present testimony from any witnesses at trial.
Ultimately, the jury found McGuffin guilty of both charges and he
was sentenced by the trial court to imprisonment for twelve years. This Court
affirmed McGuffin’s conviction on direct appeal. McGuffin, 2016 WL 4575639, at
*1. The Supreme Court of Kentucky denied McGuffin’s motion for discretionary
review on March 14, 2018. McGuffin v. Commonwealth, No. 2016-SC-000533-D.
McGuffin filed his motion to vacate his sentence under RCr 11.42 and
for an evidentiary hearing on October 15, 2018. In his motion, McGuffin alleged
several grounds for ineffective assistance of counsel, including trial counsel’s
failure to conduct a proper pre-trial investigation and subpoena four witnesses:
Brandy Lee, Christy Russell, KiKi Rye, and Jacob Hayes. The trial court denied
McGuffin’s motion on grounds that it was untimely filed under RCr 11.42(10) and
-3- insufficiently specific under RCr 11.42(2). The trial court later denied McGuffin’s
motion to alter, amend, or vacate the judgment. This appeal followed.
STANDARD OF REVIEW
A successful claim of ineffective assistance of counsel must survive
the twin prongs of “performance” and “prejudice.” 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).
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).
A movant is not automatically entitled to an evidentiary hearing on his
motion under RCr 11.42. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky.
1993). “An evidentiary hearing is not necessary to consider issues already refuted
-4- by the record in the trial court. Conclusionary allegations which are not supported
with specific facts do not justify an evidentiary hearing because RCr 11.42 does
not require a hearing to serve the function of discovery.” Hodge v.
Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
We review a trial court’s judgment on an RCr 11.42 motion for abuse
of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014).
ANALYSIS
McGuffin raises three arguments on appeal: (1) the trial court
improperly denied his motion for being untimely; (2) the trial court erred in
denying his motion because it lacked specificity; and (3) he should be granted
leniency in compliance with procedural rules because he is appearing pro se.
First, McGuffin timely filed his motion pursuant to RCr 11.42. “Any
motion under this rule shall be filed within three years after the judgment becomes
final[.]” RCr 11.42(10). A final judgment is the “conclusive judgment in the case,
whether it be the final judgment of the appellate court on direct appeal or the
judgment of the trial court in the event no direct appeal was taken.” Palmer v.
Commonwealth, 3 S.W.3d 763, 764 (Ky. App. 1999). McGuffin’s conviction did
not become final until the Supreme Court of Kentucky denied his motion for
-5- discretionary review on March 14, 2018. McGuffin then filed his motion under
RCr 11.42 on October 15, 2018, well within the three-year limitation.
Although McGuffin timely filed his motion, the trial court did not
abuse its discretion in denying it for lack of specificity under RCr 11.42(2). A
motion filed under RCr 11.42 must “state specifically the grounds on which the
sentence is being challenged and the facts on which the movant relies in support of
such grounds.” RCr 11.42(2). “Conclusory allegations that counsel was
ineffective without a statement of the facts upon which those allegations are based
do not meet the rule’s specificity standard and so warrant a summary dismissal of
the motion.” Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (citations
omitted).
McGuffin vaguely argues his trial counsel failed to interview,
subpoena, or question three witnesses who were present during the controlled buys
but does not specify what testimony those witnesses would give or how he was
prejudiced by his trial counsel’s failure to subpoena them. He states only that
Brandy Lee could have testified that Russell tampered with evidence without
specifying what that evidence is or in what manner said evidence was tampered
with. He then alleges KiKi Rye and Christy Russell could have given testimony
contradicting Donald Russell’s testimony. Again, he does not specify what
testimony Rye or Russell would have given or how it would contradict Donald
-6- Russell’s testimony. Failure to “specify precisely what exculpatory or mitigating
evidence” witnesses would have provided is fatal to a claim that the movant was
“prejudiced by the ostensible lack of investigation by counsel of those witnesses.”
Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011). Without explanation
of the specific evidence the three potential witnesses may have provided, we
cannot find the trial court erred in denying McGuffin’s motion without an
evidentiary hearing.
Furthermore, we note McGuffin raised several additional grounds for
ineffective assistance of counsel in his motion before the trial court but, apart from
the single argument addressed above, he abandoned those arguments on appeal.
“Arguments not pursued on appeal are deemed waived.” Garland v.
Commonwealth, 458 S.W.3d 781, 785 (Ky. 2015) (citations omitted). Therefore,
we need not address any other grounds McGuffin raised before the trial court.
Finally, McGuffin broadly argues he should have been granted
leniency as to compliance with procedural and substantive requirements because
he is appearing pro se. “A new theory of error cannot be raised for the first time
on appeal.” Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). This
argument is unpreserved for our review because McGuffin did not first raise it
before the trial court. Therefore, we will not address it herein.
-7- CONCLUSION
For the foregoing reasons, we affirm the order of the Grayson Circuit
Court denying McGuffin’s motion for relief under RCr 11.42.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
John T. McGuffin, pro se Daniel Cameron Burgin, Kentucky Attorney General of Kentucky
Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
-8-