RENDERED: SEPTEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1058-MR
RANDALL F. WHITWORTH APPELLANT
APPEAL FROM CALDWELL CIRCUIT COURT v. HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 17-CR-00199
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND K. THOMPSON, JUDGES.
GOODWINE, JUDGE: Randall F. Whitworth (“Whitworth”) appeals from the
Caldwell Circuit Court’s order denying his motion to vacate, set aside, or correct
his sentence under RCr1 11.42. After careful review, finding no error, we affirm.
1 Kentucky Rules of Criminal Procedure. Whitworth was arrested and charged with several offenses stemming
from a controlled buy at his house in Caldwell County. On February 26, 2019, a
jury found Whitworth guilty of first-degree trafficking in a controlled substance,2
trafficking in marijuana,3 and possession of drug paraphernalia.4 The jury found
Whitworth guilty of all charges and recommended a total sentence of fifteen years’
imprisonment. On April 3, 2019, the trial court entered the judgment and sentence,
consistent with the jury’s recommendations. On direct appeal, this Court affirmed
Whitworth’s conviction. Whitworth v. Commonwealth, No. 2019-CA-000568-MR,
2020 WL 1970599 (Ky. App. Apr. 24, 2020).
On March 16, 2021, Whitworth filed a pro se RCr 11.42 motion
alleging ineffective assistance of counsel, along with motions to proceed in forma
pauperis, for an evidentiary hearing, and for appointment of counsel. On August
17, 2021, the circuit court entered an order denying RCr 11.42 relief and all other
motions.
Whitworth filed a pro se notice of appeal, a motion to proceed in
forma pauperis, and a motion for appointment of counsel. The circuit court
2 Kentucky Revised Statutes (“KRS”) 218A.1412(1)(b) (Class C felony). 3 KRS 218A.1421(3)(b) (Class D felony). 4 KRS 218A.500(2) (Class A misdemeanor).
-2- granted Whitworth’s motion to proceed in forma pauperis and denied his motion
for appointment of counsel.
On appeal, Whitworth argues trial counsel was ineffective in: (1)
failing to call several witnesses to testify on his behalf; (2) investigating and
presenting a defense at trial; and (3) refusing to allow him to testify at trial.
Additionally, Whitworth argues the circuit court erred in denying his request for an
evidentiary hearing.
“The Sixth Amendment entitles criminal defendants to the ‘effective
assistance of counsel’ – that is, representation that does not fall ‘below an objective
standard of reasonableness’ in light of ‘prevailing professional norms.’” Bobby v.
Van Hook, 558 U.S. 4, 7, 130 S. Ct. 13, 16, 175 L. Ed. 2d 255 (2009) (per curiam)
(quoting Strickland v. Washington, 466 U.S. 668, 686, 688, 104 S. Ct. 2052, 2066,
80 L. Ed. 2d 674 (1984) (internal quotation marks omitted)). A successful petition
for relief under RCr 11.42 for ineffective assistance of counsel must survive the
twin prongs of “performance” and “prejudice” provided in Strickland, 466 U.S.
668, 104 S. Ct. 2052; accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
The “performance” prong of Strickland requires that:
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.
-3- 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 Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted. “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. To
establish ineffective assistance of counsel under both Strickland prongs, “the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Parrish, 272 S.W.3d
at 168 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065) (internal quotation
marks omitted). “Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284
(2010). We review counsel’s performance under Strickland de novo. McGorman,
489 S.W.3d at 736.
First, Whitworth argues trial counsel was ineffective in failing to call
several witnesses to testify on his behalf at the suppression hearing and trial. He
argues counsel failed to call Detective Trent Fox and David Oliver to testify on his
-4- behalf at the suppression hearing. He asserts their testimony would have proven
the detective lied about Oliver living in Whitworth’s home. His argument on
appeal is an impermissible attempt “to feed one can of worms to the trial judge and
another to the appellate court.” Henson v. Commonwealth, 20 S.W.3d 466, 470
(Ky. 1999).
Below, Whitworth argued, “[c]ounsel was ineffective for not proving
to the jury during [Detective Fox’s] testimony and in Movant’s brief[5] Detective
Trent Fox had admitted to lying about David Oliver living at [Whitworth’s] home.”
Record (“R.”) at 223. The circuit court found this issue was addressed in
Whitworth’s motion to suppress and on direct appeal. The circuit court further
found the jury could have chosen not to believe Detective Fox’s testimony about
Oliver living in Whitworth’s home.
On appeal, Whitworth argues trial counsel should have called
Detective Fox and Oliver to testify at the suppression hearing. The
Commonwealth points out that both Detective Fox and Oliver did testify at the
suppression hearing. Instead of proving that Detective Fox lied, their testimony
called Oliver’s credibility into question. As this argument is unpreserved,
Whitworth did not request review for palpable error under RCr 10.26, and the facts
do not support his argument, we will not address this argument further.
5 It is unclear what “brief” Whitworth referred to in his RCr 11.42 motion.
-5- Whitworth also argues counsel failed to call Jonathan Hoover, Robin
Duff, David Oliver, and Denzel Aldridge to testify on his behalf at trial. On
appeal, Whitworth asserts these witnesses would have testified that he was not
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RENDERED: SEPTEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1058-MR
RANDALL F. WHITWORTH APPELLANT
APPEAL FROM CALDWELL CIRCUIT COURT v. HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 17-CR-00199
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND K. THOMPSON, JUDGES.
GOODWINE, JUDGE: Randall F. Whitworth (“Whitworth”) appeals from the
Caldwell Circuit Court’s order denying his motion to vacate, set aside, or correct
his sentence under RCr1 11.42. After careful review, finding no error, we affirm.
1 Kentucky Rules of Criminal Procedure. Whitworth was arrested and charged with several offenses stemming
from a controlled buy at his house in Caldwell County. On February 26, 2019, a
jury found Whitworth guilty of first-degree trafficking in a controlled substance,2
trafficking in marijuana,3 and possession of drug paraphernalia.4 The jury found
Whitworth guilty of all charges and recommended a total sentence of fifteen years’
imprisonment. On April 3, 2019, the trial court entered the judgment and sentence,
consistent with the jury’s recommendations. On direct appeal, this Court affirmed
Whitworth’s conviction. Whitworth v. Commonwealth, No. 2019-CA-000568-MR,
2020 WL 1970599 (Ky. App. Apr. 24, 2020).
On March 16, 2021, Whitworth filed a pro se RCr 11.42 motion
alleging ineffective assistance of counsel, along with motions to proceed in forma
pauperis, for an evidentiary hearing, and for appointment of counsel. On August
17, 2021, the circuit court entered an order denying RCr 11.42 relief and all other
motions.
Whitworth filed a pro se notice of appeal, a motion to proceed in
forma pauperis, and a motion for appointment of counsel. The circuit court
2 Kentucky Revised Statutes (“KRS”) 218A.1412(1)(b) (Class C felony). 3 KRS 218A.1421(3)(b) (Class D felony). 4 KRS 218A.500(2) (Class A misdemeanor).
-2- granted Whitworth’s motion to proceed in forma pauperis and denied his motion
for appointment of counsel.
On appeal, Whitworth argues trial counsel was ineffective in: (1)
failing to call several witnesses to testify on his behalf; (2) investigating and
presenting a defense at trial; and (3) refusing to allow him to testify at trial.
Additionally, Whitworth argues the circuit court erred in denying his request for an
evidentiary hearing.
“The Sixth Amendment entitles criminal defendants to the ‘effective
assistance of counsel’ – that is, representation that does not fall ‘below an objective
standard of reasonableness’ in light of ‘prevailing professional norms.’” Bobby v.
Van Hook, 558 U.S. 4, 7, 130 S. Ct. 13, 16, 175 L. Ed. 2d 255 (2009) (per curiam)
(quoting Strickland v. Washington, 466 U.S. 668, 686, 688, 104 S. Ct. 2052, 2066,
80 L. Ed. 2d 674 (1984) (internal quotation marks omitted)). A successful petition
for relief under RCr 11.42 for ineffective assistance of counsel must survive the
twin prongs of “performance” and “prejudice” provided in Strickland, 466 U.S.
668, 104 S. Ct. 2052; accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
The “performance” prong of Strickland requires that:
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.
-3- 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 Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted. “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. To
establish ineffective assistance of counsel under both Strickland prongs, “the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Parrish, 272 S.W.3d
at 168 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065) (internal quotation
marks omitted). “Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284
(2010). We review counsel’s performance under Strickland de novo. McGorman,
489 S.W.3d at 736.
First, Whitworth argues trial counsel was ineffective in failing to call
several witnesses to testify on his behalf at the suppression hearing and trial. He
argues counsel failed to call Detective Trent Fox and David Oliver to testify on his
-4- behalf at the suppression hearing. He asserts their testimony would have proven
the detective lied about Oliver living in Whitworth’s home. His argument on
appeal is an impermissible attempt “to feed one can of worms to the trial judge and
another to the appellate court.” Henson v. Commonwealth, 20 S.W.3d 466, 470
(Ky. 1999).
Below, Whitworth argued, “[c]ounsel was ineffective for not proving
to the jury during [Detective Fox’s] testimony and in Movant’s brief[5] Detective
Trent Fox had admitted to lying about David Oliver living at [Whitworth’s] home.”
Record (“R.”) at 223. The circuit court found this issue was addressed in
Whitworth’s motion to suppress and on direct appeal. The circuit court further
found the jury could have chosen not to believe Detective Fox’s testimony about
Oliver living in Whitworth’s home.
On appeal, Whitworth argues trial counsel should have called
Detective Fox and Oliver to testify at the suppression hearing. The
Commonwealth points out that both Detective Fox and Oliver did testify at the
suppression hearing. Instead of proving that Detective Fox lied, their testimony
called Oliver’s credibility into question. As this argument is unpreserved,
Whitworth did not request review for palpable error under RCr 10.26, and the facts
do not support his argument, we will not address this argument further.
5 It is unclear what “brief” Whitworth referred to in his RCr 11.42 motion.
-5- Whitworth also argues counsel failed to call Jonathan Hoover, Robin
Duff, David Oliver, and Denzel Aldridge to testify on his behalf at trial. On
appeal, Whitworth asserts these witnesses would have testified that he was not
dealing drugs on the night in question, and only Whitworth lived in his house. The
circuit court found all of the witnesses listed above “are convicted felons.
Considering their limited credibility, a decision not to call or subpoena witnesses is
a reasonable trial strategy.” R. at 246. “It is not the function of this Court to usurp
or second guess counsel’s trial strategy.” Commonwealth v. York, 215 S.W.3d 44,
48 (Ky. 2007) (quoting Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009)). Thus, we agree with the circuit court that it was reasonable trial strategy
not to call convicted felons to testify on Whitworth’s behalf.
Second, Whitworth argues trial counsel was ineffective in his
preparation and presentation of a defense at trial. The Commonwealth argues these
are general allegations that are unsupported by the record. Below and on appeal,
Whitworth failed to specify what counsel could have done differently to better
defend him. “We will not search the record to construct [appellant’s] argument for
him, nor will we go on a fishing expedition to find support for his underdeveloped
arguments.” Prescott v. Commonwealth, 572 S.W.3d 913, 923 (Ky. App. 2019).
-6- Thus, we cannot conclude the circuit court erred in denying Whitworth’s RCr
11.42 motion.
Third, Whitworth argues trial counsel was ineffective in refusing to
allow him to testify at trial. The Commonwealth argues Whitworth knowingly and
voluntarily chose not to testify. Below, the circuit court found “there is no
indication that [Whitworth] did not understand that he could testify, despite advice
of counsel. He made a knowing, intelligent, and voluntary waiver of his right to
testify.” R. at 247.
Whitworth’s argument lacks merit. He merely argues counsel refused
to allow him to testify. Whitworth makes no argument that counsel failed to
properly inform him of this right to testify. Thus, the circuit court did not err in
finding Whitworth voluntarily waived his right to testify at trial.
Finally, Whitworth argues the circuit court erred in denying his
request for an evidentiary hearing. “[A]n evidentiary hearing is not required when
the record refutes the claim of error or when the allegations, even if true, would not
be sufficient to invalidate the conviction.” Cawl v. Commonwealth, 423 S.W.3d
214, 218 (Ky. 2014). As discussed throughout this Opinion, Whitworth failed to
present any arguments supported by the record. The record clearly reflects that his
arguments lack merit. Thus, the circuit court correctly found he was not entitled to
an evidentiary hearing.
-7- For the foregoing reasons, we affirm the order of the Caldwell Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Randall F. Whitworth, pro se Daniel Cameron Lexington, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
-8-