RENDERED: AUGUST 15, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0383-MR
LARRY WILLIAMSON APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 14-CR-00083
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
JONES, A., JUDGE: Larry Williamson appeals from the Gallatin Circuit Court’s
order denying his motion to vacate his sentence pursuant to RCr1 11.42. Because
the motion raises an issue which cannot be resolved on the face of the record, we
affirm in part, vacate in part, and remand for an evidentiary hearing.
1 Kentucky Rules of Criminal Procedure. I. BACKGROUND
A summary of the underlying incident in this case may be found in
this Court’s published opinion stemming from Williamson’s direct appeal:
On November 10, 2014, Williamson was indicted on two counts of rape in the second degree, one count of sodomy in the second degree and one count of sexual abuse in the first degree. The victim was Williamson’s stepsister. Previously, the victim lived with her mother and stepfather (who was her uncle, the brother of her father). During the summer of 2014 when the crimes were alleged to have occurred, the victim, who was twelve years old, was living with her stepmother (Williamson’s mother) and her father (Williamson’s stepfather). During this time, Williamson lived with his wife and grandparents.
Fourteen jurors were selected to hear the evidence, with two alternate jurors to be dismissed before deliberations.
Williamson testified in his defense along with his mother and stepfather. Part of his defense was that he was seldom around the victim in the summer when the crimes were alleged to have been committed.
After deliberations, the jury found Williamson guilty on all counts and recommended he be sentenced to a total of fifteen years.
Williamson v. Commonwealth, 601 S.W.3d 469, 471 (Ky. App. 2019). We
affirmed Williamson’s conviction and sentence on direct appeal. Id. at 477.
Acting pro se, Williamson filed a timely motion to vacate his
conviction and sentence pursuant to RCr 11.42. He raised three claims of
-2- ineffective assistance in that initial motion: (1) trial counsel failed to conduct a
reasonable investigation of the Commonwealth’s witness, Tony Beach; (2) trial
counsel failed to put on avowal evidence of two other potential suspects; and (3)
trial counsel failed to call potential alibi witnesses. After the trial court appointed
the Department of Public Advocacy (DPA) to represent Williamson, DPA counsel
filed a supplemental RCr 11.42 motion which added two additional ineffective
assistance claims: (1) trial counsel failed to investigate a defense grounded in
Williamson’s intellectual disability, including the failure to hire an expert for trial;
and (2) trial counsel failed to move for a mistrial, a new trial, or an admonition
after the trial court excused a juror, Juror 402, in the middle of trial.
This second supplemented issue requires some further explanation.
After the close of evidence, but prior to closing arguments of counsel, the trial
court learned that Juror 402 had failed to accurately answer questions during voir
dire; the juror’s private knowledge of Williamson, if it had been properly
disclosed, may have led to a valid challenge for cause. Williamson, 601 S.W.3d at
471-72. After conferring with counsel, the trial court elected to effectively dismiss
Juror 402 prior to deliberations by predesignating her as an alternate. Id. at 473.
The trial court specifically instructed Juror 402 not to discuss her personal
knowledge of Williamson with the other jurors. Id. at 472. We reviewed the issue
for palpable error on direct appeal and held that “the brief delay in excusing Juror
-3- 402 cannot be shown to have had an adverse effect on the outcome of the trial,
much less constitute manifest injustice, as there is absolutely no evidence that Juror
402 shared her ‘insider knowledge’ with anyone else on the jury.” Id. at 473.
After receiving the Commonwealth’s response to the RCr 11.42
motions, as well as Williamson’s reply, the trial court entered an order denying the
RCr 11.42 motions without granting an evidentiary hearing. 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
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 prongs
-4- of Strickland must be met before relief is warranted under RCr 11.42. “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.
Although Williamson presented five broad categories of issues in his
two RCr 11.42 motions, as outlined above, he effectively abandons the first three
issues, those first raised in his pro se motion, by failing to present arguments
related to those issues in his brief. “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). As a result, Williamson
retains two surviving issues on appeal. First, Williamson contends his trial counsel
was ineffective for failing to move for a new trial, mistrial, or jury admonition
when Juror 402 was permitted to remain on the jury. In its order denying relief,
the trial court found that Williamson’s issues surrounding Juror 402 were “based
upon assumption and speculation” (Record (R.) at 458) because there was no
evidence Juror 402 had ever disclosed any information to the jury.
We agree with the trial court that this issue is entirely grounded in
speculation. The trial court directly and unequivocally admonished Juror 402 that
she was forbidden from disclosing her personal knowledge to the other jurors.
Williamson, 601 S.W.3d at 472. Williamson argues that Juror 402 had the
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RENDERED: AUGUST 15, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0383-MR
LARRY WILLIAMSON APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 14-CR-00083
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
JONES, A., JUDGE: Larry Williamson appeals from the Gallatin Circuit Court’s
order denying his motion to vacate his sentence pursuant to RCr1 11.42. Because
the motion raises an issue which cannot be resolved on the face of the record, we
affirm in part, vacate in part, and remand for an evidentiary hearing.
1 Kentucky Rules of Criminal Procedure. I. BACKGROUND
A summary of the underlying incident in this case may be found in
this Court’s published opinion stemming from Williamson’s direct appeal:
On November 10, 2014, Williamson was indicted on two counts of rape in the second degree, one count of sodomy in the second degree and one count of sexual abuse in the first degree. The victim was Williamson’s stepsister. Previously, the victim lived with her mother and stepfather (who was her uncle, the brother of her father). During the summer of 2014 when the crimes were alleged to have occurred, the victim, who was twelve years old, was living with her stepmother (Williamson’s mother) and her father (Williamson’s stepfather). During this time, Williamson lived with his wife and grandparents.
Fourteen jurors were selected to hear the evidence, with two alternate jurors to be dismissed before deliberations.
Williamson testified in his defense along with his mother and stepfather. Part of his defense was that he was seldom around the victim in the summer when the crimes were alleged to have been committed.
After deliberations, the jury found Williamson guilty on all counts and recommended he be sentenced to a total of fifteen years.
Williamson v. Commonwealth, 601 S.W.3d 469, 471 (Ky. App. 2019). We
affirmed Williamson’s conviction and sentence on direct appeal. Id. at 477.
Acting pro se, Williamson filed a timely motion to vacate his
conviction and sentence pursuant to RCr 11.42. He raised three claims of
-2- ineffective assistance in that initial motion: (1) trial counsel failed to conduct a
reasonable investigation of the Commonwealth’s witness, Tony Beach; (2) trial
counsel failed to put on avowal evidence of two other potential suspects; and (3)
trial counsel failed to call potential alibi witnesses. After the trial court appointed
the Department of Public Advocacy (DPA) to represent Williamson, DPA counsel
filed a supplemental RCr 11.42 motion which added two additional ineffective
assistance claims: (1) trial counsel failed to investigate a defense grounded in
Williamson’s intellectual disability, including the failure to hire an expert for trial;
and (2) trial counsel failed to move for a mistrial, a new trial, or an admonition
after the trial court excused a juror, Juror 402, in the middle of trial.
This second supplemented issue requires some further explanation.
After the close of evidence, but prior to closing arguments of counsel, the trial
court learned that Juror 402 had failed to accurately answer questions during voir
dire; the juror’s private knowledge of Williamson, if it had been properly
disclosed, may have led to a valid challenge for cause. Williamson, 601 S.W.3d at
471-72. After conferring with counsel, the trial court elected to effectively dismiss
Juror 402 prior to deliberations by predesignating her as an alternate. Id. at 473.
The trial court specifically instructed Juror 402 not to discuss her personal
knowledge of Williamson with the other jurors. Id. at 472. We reviewed the issue
for palpable error on direct appeal and held that “the brief delay in excusing Juror
-3- 402 cannot be shown to have had an adverse effect on the outcome of the trial,
much less constitute manifest injustice, as there is absolutely no evidence that Juror
402 shared her ‘insider knowledge’ with anyone else on the jury.” Id. at 473.
After receiving the Commonwealth’s response to the RCr 11.42
motions, as well as Williamson’s reply, the trial court entered an order denying the
RCr 11.42 motions without granting an evidentiary hearing. 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
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 prongs
-4- of Strickland must be met before relief is warranted under RCr 11.42. “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.
Although Williamson presented five broad categories of issues in his
two RCr 11.42 motions, as outlined above, he effectively abandons the first three
issues, those first raised in his pro se motion, by failing to present arguments
related to those issues in his brief. “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). As a result, Williamson
retains two surviving issues on appeal. First, Williamson contends his trial counsel
was ineffective for failing to move for a new trial, mistrial, or jury admonition
when Juror 402 was permitted to remain on the jury. In its order denying relief,
the trial court found that Williamson’s issues surrounding Juror 402 were “based
upon assumption and speculation” (Record (R.) at 458) because there was no
evidence Juror 402 had ever disclosed any information to the jury.
We agree with the trial court that this issue is entirely grounded in
speculation. The trial court directly and unequivocally admonished Juror 402 that
she was forbidden from disclosing her personal knowledge to the other jurors.
Williamson, 601 S.W.3d at 472. Williamson argues that Juror 402 had the
-5- opportunity to taint the jury, but he admits “there is nothing in the record that
proves” she did so. (Appellant’s Brief at 22.) 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). The trial court did not
err in denying relief on this issue.
Williamson’s second issue is not so easily dismissed. Williamson
contends his trial counsel was ineffective for failing to investigate his intellectual
disability and the subsequent putative errors which followed, including the failure
to hire an expert to testify about the effect of his disability on competency and
criminal responsibility. The trial court relied heavily on our decision in Vincent v.
Commonwealth, 584 S.W.3d 762 (Ky. App. 2019), referring to the principles that
defense counsel should be afforded “great discretion in trying a case, especially
with regard to trial strategy and tactics[,]” id. at 770 (internal quotation marks
omitted) (quoting Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998)) and
“[i]t is not the function of this Court to usurp or second guess counsel’s trial
strategy.” Id. at 771 (internal quotation marks omitted) (quoting Commonwealth v.
York, 215 S.W.3d 44, 48 (Ky. 2007)).
A crucial distinction, however, between this case and Vincent is that
the trial court in Vincent conducted an evidentiary hearing before arriving at the
-6- conclusion that defense counsel employed a reasonable trial strategy. Id. at 767.
Here, the trial court elected to disbelieve Williamson’s assertions that counsel was
ineffective for failing to investigate or otherwise avail himself of experts for trial
without a hearing on the matter. “A hearing is required if there is a material issue
of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved,
by an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d 448, 452
(Ky. 2001) (citations omitted). The motivations of counsel in undertaking one
strategy over another are often not discernible without an evidentiary hearing. In
similar fashion, a review of whether these strategic decisions were reasonable also
typically requires the sort of illumination that an evidentiary hearing provides.
“The trial judge may not simply disbelieve factual allegations in the absence of
evidence in the record refuting them.” Id. at 452-53 (citation omitted).
In an attempt to support the proposition that trial counsel’s decisions
regarding Williamson’s intellectual disability were a matter of strategy, the
Commonwealth attached an affidavit from Williamson’s defense counsel to its
response to the RCr 11.42 motion. In this affidavit, defense counsel gave reasons
why he believed Williamson was competent and asserted his ability to “make a
determination of whether someone is incompetent or not, without being a medical
doctor.” (R. at 409.) However, an affidavit is not a substitute for an evidentiary
hearing in this context. In Knuckles v. Commonwealth, 421 S.W.3d 399, 401 (Ky.
-7- App. 2014), we considered this issue and concluded that “[t]he Commonwealth’s
supplementation of the record by providing the circuit court affidavits was
essentially an admission that the record was insufficient for resolution of [the
defendant’s] motion.” Here, the Commonwealth attempted to inject evidence of
trial counsel’s strategic choices into the trial court’s record. “Attaching an
affidavit alleging facts not in the record was one method of demonstrating that an
evidentiary hearing was necessary.” Id. at 402 (citing Commonwealth v. Elza, 284
S.W.3d 118, 122 (Ky. 2009)). In our view, the trial court’s denial of an evidentiary
hearing on this issue was erroneous.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s order regarding
the issues surrounding Juror 402. We vacate the portion of the trial court’s order
regarding trial counsel’s purported failures to investigate and hire experts
regarding Williamson’s purported intellectual disability, and we remand for an
evidentiary hearing on this matter pursuant to Fraser.
ALL CONCUR.
-8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Martina L. Lytle Russell Coleman Chelsea M. Clem Attorney General of Kentucky Assistant Public Advocates Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-9-