Michael Elmore v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: June 25, 2026
• Docket: 2024-SC-0536
• Status: Unpublished

Opinion

IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION”

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED. RENDERED: JUNE 25, 2026 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0536-MR

MICHAEL ELMORE APPELLANT

ON APPEAL FROM OLDHAM CIRCUIT COURT V. HONORABLE JERRY CROSBY, II, JUDGE NO. 23-CR-00100

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Michael Anthony Elmore moved to withdraw his guilty plea before

sentencing. After holding an evidentiary hearing at which Elmore and the

attorney who represented him testified, the trial court denied Elmore’s motion.

He now appeals as a matter of right.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 2023, an Oldham County grand jury indicted Elmore on

multiple charges: first degree rape, first degree burglary, kidnapping (adult),

first degree strangulation, intimidating a participant in the legal process, fourth

degree assault (dating violence), third degree terroristic threatening, and

second degree criminal mischief. These charges carried a maximum prison

term of sixty years. The indictment alleged Elmore went to A.S.’s residence late at night on

March 4, 2023, after she had told him not to come, forced a window open by

breaking plastic clips, entered, took A.S.’s phone, restrained her, and placed

his hand over her nose, mouth, and throat while issuing threats. After Elmore

left, A.S. went to the police.

The pretrial process included mediation. Hon. Julie Barr represented

Elmore and participated in mediation that produced a negotiated plea. Elmore

agreed to plead guilty to second degree burglary and first degree strangulation,

with the Commonwealth recommending ten years on each count to run

consecutively (a total of twenty years), and dismissing the remaining charges—

including rape and kidnapping.

On April 16, 2024, the trial court conducted a Boykin colloquy. 1 Elmore

stated he had discussed the case with counsel, understood the constitutional

rights he was waiving, and was satisfied with counsel’s advice. He confirmed

his plea was free, knowing, voluntary, and intelligent. He admitted breaking the

window clips at A.S.’s residence, entering through the window, and placing his

hand over the victim’s mouth in a way that impaired her breathing. The trial

court accepted the plea, noting Elmore’s allocution satisfied the elements of the

offenses.

Before sentencing, Elmore retained new counsel and moved to withdraw

his plea, claiming his prior counsel did not advise him of lesser included

1 Boykin v. Alabama, 395 U.S. 238 (1969).

2 offenses (specifically criminal trespass), did not investigate or advise him

regarding extreme emotional disturbance (EED), entered the plea with

incomplete discovery, failed to adequately represent him at mediation, and did

not warn him about anticipated statutory changes under House Bill 5 that

could affect parole eligibility for first degree strangulation. He asserted that, but

for these errors, he would have gone to trial.

The trial court held an evidentiary hearing on August 15, 2024. Elmore

testified that at mediation Ms. Barr lacked an updated summary of facts and

that, after the mediator spoke with the prosecutor, he was told to “pick two”

charges he thought he was guilty of—an instruction he says reinforced his

belief that entering through a window necessarily meant burglary. He asserted

he believed he had permission to enter because he and A.S. were “back

together,” and he lacked any intent to commit a crime upon entry, and alleged

his attorney did not connect this to potential defenses or lesser included

offenses at trial.

Elmore testified he was never advised about criminal trespass, did not

understand the difference between trespass and burglary, and did not know he

could ask a jury to consider a lesser offense. He further said counsel did not

review the “meat and bones” of a jury trial or possible jury instructions, leaving

him with the belief he had no viable trial path and therefore no leverage in

mediation.

Regarding mental health, Elmore reported a history of PTSD, bipolar

disorder, and depression. Despite knowing this, counsel did not obtain his

3 medical records, did not seek a mental health evaluation, and did not discuss

EED—which he believed could have been relevant to his conduct. He also

stated discovery was incomplete at the time of his plea, pointing to DNA

information first disclosed at the August 15, 2024, hearing that had not been

available to him or counsel beforehand.

Elmore described a misunderstanding between probation and shock

probation, saying he believed shock probation would be available and that the

Commonwealth would not oppose it. He testified he would not have signed the

mediation agreement had he known otherwise. Finally, he testified that counsel

did not warn him about House Bill 5, and he said he would have insisted on

trial had he known that first degree strangulation could carry 85% parole

eligibility.

His prior attorney testified at the hearing. Her testimony conflicted with

Elmore’s portrayal in several respects. She testified she discussed the elements

of the charged offenses with Elmore and reviewed evidence with him, including

photographs of the broken window clips and whether the evidence sufficed to

prove burglary. She acknowledged she did not specifically recall discussing

criminal trespass or using lesser included language in a jury trial context.

However, she maintained she had done the necessary investigation for

mediation and that “nothing was left unturned” for purposes of securing a plea.

Barr acknowledged she knew Elmore had PTSD but did not obtain his

records, did not secure a mental health expert, and did not discuss EED with

him. She could not recall whether she had provided discovery to Elmore prior

4 to the plea and that certain discovery—including DNA—was disclosed later.

Even so, Barr testified the case was months from trial at the time of the plea,

that she was not then ready for trial, and that she did not discuss jury

instructions because the case was in negotiation mode.

She believed she had exhausted what was needed for mediation, which

produced a favorable offer. She informed the mediator that Elmore was

habitually allowed at A.S.’s residence, though she did not present EED,

criminal trespass, or license to enter as formal defenses during mediation. She

conceded she did not discuss House Bill 5 with Elmore. While she knew that it

could affect punishment for strangulation, it was pending during mediation

and when Elmore pled guilty.

After the hearing, the trial court found that Elmore’s plea was voluntary

under the totality of the circumstances, relying in part on his Boykin

declarations and allocution admitting conduct satisfying offense elements. The

court also found no ineffective assistance of counsel, concluding Barr

discussed the charged offenses and elements and secured a favorable plea

dismissing serious counts and reducing burglary from first to second degree.

The court concluded that Elmore failed to show he would have insisted on trial

but for counsel’s alleged deficiencies.

The court denied Elmore’s motion to withdraw his plea and entered

judgment consistent with the plea agreement. Elmore is appealing the denial of

his motion to withdraw the guilty plea.

5 II. ANALYSIS

A. The Standard for Withdrawing a Guilty Plea Under RCr 8.10 When the Defendant Alleges Ineffective Assistance of Counsel.

Kentucky Rules of Criminal Procedure (RCr) 8.10 provides that, “[a]t any

time before judgment the court may permit the plea of guilty or guilty but

mentally ill, to be withdrawn and a plea of not guilty substituted.” A motion to

withdraw a guilty plea is generally addressed to the sound discretion of the

trial court. However, that discretion exists only after the court determines that

the plea was entered voluntarily. Williams v. Commonwealth, 229 S.W.3d 49,

51 (Ky. 2007); Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002). If the

plea was involuntary, the defendant is entitled to withdrawal as a matter of

right and the trial court “must” grant the motion. Porter v. Commonwealth, 394

S.W.3d 382, 385–86 (Ky. 2011).

Because a guilty plea waives several fundamental constitutional rights,

due process requires that a valid plea be knowing, intelligent, and

voluntary. Haight v. Commonwealth, 760 S.W.2d 84, 87–88 (Ky. 1988)

(citing Boykin v. Alabama, 395 U.S. 238 (1969)). Likewise, the Due Process

Clause demands an affirmative, on the record showing of voluntariness before

the plea may be accepted. Edmonds v. Commonwealth, 189 S.W.3d 558, 565

(Ky. 2006).

Where a defendant moves to withdraw a guilty plea prior to judgment

and alleges that the plea was entered involuntarily, the trial court must

conduct a hearing to determine voluntariness. Williams, 229 S.W.3d at

51; Porter, 394 S.W.3d at 385. If, following that hearing, the court finds the

6 plea involuntary, the court has no discretion and must grant the

motion. Porter, 394 S.W.3d at 385–86.

Voluntariness is assessed under the totality of the circumstances

surrounding the plea. Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001).

The trial court is in the best position to determine whether the

defendant exhibited reluctance, misunderstanding, involuntariness, or

incompetence. Porter, 394 S.W.3d at 386. A plea that is the actual product of

threats or promises is involuntary. Johnson v. Commonwealth, 412 S.W.3d

157, 164 (Ky. 2013). Statements made by a defendant under oath during the

plea colloquy carry a strong presumption of verity, and they are significant

evidence of voluntariness. Edmonds, 189 S.W.3d at 569. Because voluntariness

is a factual determination, appellate courts review a trial court’s finding for

clear error, upholding the ruling where supported by substantial

evidence. Porter, 394 S.W.3d at 386; Commonwealth v. Pridham, 394 S.W.3d

867, 875 (Ky. 2012).

If the trial court concludes that the defendant entered the plea

knowingly, intelligently, and voluntarily, then the decision whether to allow

withdrawal rests within the court’s sound discretion. Greene v. Commonwealth,

475 S.W.3d 626, 630 (Ky. 2015). A denial of such a motion is reviewed for

abuse of discretion, which occurs when the ruling is arbitrary, unreasonable,

unfair, or unsupported by sound legal principles. Edmonds, 189 S.W.3d at

570; Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

7 When a defendant challenges the voluntariness of a guilty plea on

grounds of ineffective assistance, the trial court must “juxtapose” the

presumption of voluntariness inherent in a proper plea colloquy with

the analysis of Strickland v. Washington, 466 U.S. 668 (1984). Bronk, 58

S.W.3d at 486-87. This inquiry involves two components. The court first

evaluates whether counsel’s performance fell outside the wide range of

professionally competent assistance. Strickland, 466 U.S. at 687;

Commonwealth v. Tigue, 459 S.W.3d 372, 391 (Ky. 2015). The defendant must

show prejudice by demonstrating a reasonable probability that, but for

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

going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Tigue, 459 S.W.3d at

391. The defendant must show that rejecting the plea bargain would have been

rational under the circumstances. Padilla v. Kentucky, 559 U.S. 356, 372

(2010); Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012).

B. Elmore Entered His Plea Voluntarily.

The record supports the trial court’s finding that Elmore’s plea was

voluntary. Elmore participated in a full Boykin colloquy, affirming that he had

discussed his case with counsel, understood the constitutional rights he was

waiving, was satisfied with counsel’s advice, and was entering his plea freely,

knowingly, and intelligently. He then admitted facts satisfying the offense

elements—breaking the window clips to gain entry and placing his hand over

the victim’s mouth in a manner that impeded breathing. The trial court’s

written findings recite these sworn admissions, expressly concluding the plea

8 was made “freely, voluntarily, intelligently, and knowingly,” and that Elmore

“was making no claim of innocence.”

Elmore’s post plea assertions of misunderstanding do not overcome the

“strong presumption of verity” attached to solemn declarations in open court,

particularly where, as here, the trial court observed his demeanor and made

specific findings that he was satisfied with the mediation process, had the

opportunity to discuss the case and his rights with counsel, and entered his

plea because he was guilty. On this record, the voluntariness determination is

supported by substantial evidence and is not clearly erroneous.

C. Elmore’s Counsel Was Not Ineffective.

1. Elmore failed to establish deficient performance of counsel.

Having concluded that the trial court did not clearly err in finding

Elmore’s plea voluntary, we next review the court’s rejection of his ineffective

assistance claims for abuse of discretion. Under this standard, we do not

reweigh testimony or second guess credibility determinations. Rather, we

assess whether the court’s ultimate ruling on counsel’s performance was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Greene, 475 S.W.3d at 630; Edmonds, 189 S.W.3d at 570.

Elmore argues counsel’s actions were deficient in four principal respects:

(1) she failed to advise him about the lesser included offense of criminal

trespass; (2) she failed to investigate a potential defense of EED or advise him

about the impact of his mental health issues; (3) she advised him to enter into

the plea agreement knowing that discovery was incomplete and she was

9 unprepared for trial; and (4) she failed to warn him about potential parole

eligibility consequences under House Bill 5.

The evidence supports the trial court’s rejection of each theory. As to the

burglary elements and lesser included offenses, the court credited counsel’s

testimony that she discussed the elements of the charged offenses with Elmore,

reviewed photographs of the broken window clips, and evaluated whether the

evidence sufficed to prove burglary. Counsel did not specifically recall using the

label “criminal trespass,” but the court found she fulfilled her obligation to

explain the charges and legal framework relevant to mediation. Given this

finding, the court reasonably concluded that counsel’s performance did not fall

outside the wide range of professionally competent assistance.

Regarding considering EED and conducting a mental health

investigation, the trial court accurately observed that EED is legally

unavailable as a defense to burglary or first degree strangulation. Given that

Elmore pled to those offenses and the remaining counts—including rape and

kidnapping—would not have been mitigated by EED, the court acted well

within its discretion in determining that counsel’s failure to pursue an

inapplicable defense was not deficient. Counsel’s lack of broader mental health

inquiries, while not exhaustive, did not render her mediation focused

representation constitutionally ineffective.

As to discovery and trial preparation, counsel testified that additional

discovery (including DNA evidence) surfaced after the plea, that she was not

fully prepared for trial at the mediation stage, and that she did not discuss jury

10 instructions because the case remained in negotiation posture. The trial court

accepted her explanation that the case was months from trial and that she had

conducted the investigation necessary to engage in mediation and secure a

favorable plea. On this record, the court did not abuse its discretion by

concluding that counsel’s performance during mediation was reasonable.

Finally, the trial court correctly determined that counsel’s failure to warn

about House Bill 5 did not constitute deficient performance. House Bill 5

became effective months after the plea, and it was unclear whether it would

apply to him. Counsel’s performance must be evaluated at the time advice was

given, and the court appropriately concluded that her failure to anticipate how

a future legislative change would affect Elmore did not fall below professional

norms.

2. Elmore failed to establish prejudice.

The trial court also found that Elmore failed to establish Strickland’s

prejudice prong—a finding we review for abuse of discretion. Under Hill v.

Lockhart, Elmore had the burden to show a reasonable probability that, but for

counsel’s alleged errors, he would have insisted on going to trial, and that

doing so would have been rational under the circumstances. 474 U.S. at 58–

59.

The trial court concluded that Elmore’s claim of prejudice was not

persuasive, emphasizing that he faced multiple Class B felonies—including

rape and kidnapping—and that counsel secured a plea reducing burglary from

first to second degree and dismissing the most serious charges. The resulting

11 twenty-year sentence on two Class C felonies was a significantly favorable

resolution compared to the sixty-year sentence he risked receiving had he gone

to trial, been convicted, and sentenced to the maximum term. Additionally,

with the dismissal of the rape charge, Elmore was not designated a sex offender

and avoided all the collateral impacts that follow that designation.

The court also relied on Elmore’s answers at the plea hearing. Elmore

acknowledged breaking the window clips, entering through the window, and

restraining the victim in a manner that impeded her breathing, which provided

a factual basis for his guilty plea. He affirmed satisfaction with counsel and

expressed no reluctance to proceed. These facts reasonably undercut his later

assertion that he would have rejected the plea and insisted on going to trial.

Elmore’s claim regarding a trespass defense does not undermine the trial

court’s conclusion. The court found that, regardless of his claims about

permission to enter, the surrounding conduct—taking the victim’s phone,

immediately restraining her, and placing his hand over her nose, mouth, and

throat—supported an inference of criminal intent at entry or while remaining

unlawfully. Given that evidence, the court was well within its discretion to

conclude that knowledge of a lesser included trespass theory would not have

made rejection of the plea a rational choice.

Nor did the trial court act unreasonably in rejecting Elmore’s reliance on

House Bill 5. House Bill 5 became effective after the plea, and the court

properly recognized that post plea legislative change cannot retroactively create

prejudice for a previously voluntary plea. Finally, because EED is legally

12 inapplicable to the charges driving the plea agreement, the trial court correctly

determined that failure to pursue it could not have meaningfully influenced his

decision to plead guilty.

The trial court’s conclusion that Elmore failed to satisfy the prejudice

prong of Strickland was supported by the record and fully consistent with the

governing legal standards. It was not an abuse of discretion.

III. CONCLUSION

Elmore entered a knowing, intelligent, and voluntary plea. He received

effective assistance of counsel when pleading guilty. We affirm his conviction.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Shannon Renee Dupree Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Kristin Leigh Conder Assistant Attorney General