RENDERED: JULY 2, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0432-MR
TERRELL TYRONE CLARK APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOHN GRISE, JUDGE ACTION NO. 20-CR-00170
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, A. JONES, AND MOYNAHAN, JUDGES.
JONES, A., JUDGE: Terrell Tyrone Clark appeals from a March 3, 2025, order of
the Warren Circuit Court summarily denying his Kentucky Rule of Criminal
Procedure (RCr) 11.42 motion to vacate his guilty plea and consequent sentence of
imprisonment. We affirm. I. BACKGROUND
At approximately 5:30 a.m. on December 25, 2019, deputies
responded to a report of a stabbing at an apartment on East Heights Avenue in
Bowling Green. Upon arriving at the apartment complex, a deputy encountered a
naked black male, later identified as Clark, standing in a grassy area. Clark was
visibly injured and covered in blood. He was screaming loudly, behaving
erratically, and appeared highly agitated. As Clark began walking away from one
of the deputies, he repeatedly shouted that he wanted the deputies to shoot
someone. He then stated that he was going to kill himself, formed his hand into
the shape of a gun, pointed it first toward an unidentified object and then toward
his own head, and repeatedly yelled, “bang.” When a deputy asked Clark what had
happened, Clark responded that the deputy would need to ask Jesus because Jesus
knew. The deputy then escorted Clark to an ambulance, and he was transported to
a hospital for treatment.
The deputies subsequently interviewed Jeffery Lay and Teri Fulcher,
the residents of the apartment where the stabbing occurred. They reported that,
earlier that morning, someone knocked on their door. When Fulcher opened it, an
unknown, naked black man, later identified as Clark, forced his way inside and
began striking her in the face. Fulcher, who was visibly upset during the interview,
stated that she feared Clark intended to sexually assault her because he was naked.
-2- Lay, who had been in the rear of the apartment, came forward after hearing the
disturbance to defend Fulcher. As he approached, Clark made a comment to the
effect that “something is about to happen” and then struck Lay in the face. Lay
used a pocketknife to defend himself and Fulcher. After Lay stabbed Clark several
times, Clark fled the apartment. Lay later observed Clark throwing objects at the
window of a different apartment unit. The deputies photographed blood on the
living room floor, a Christmas present, and Lay’s clothing and arms. They also
collected Lay’s clothing and the knife as evidence.
The deputies next interviewed Isaiah Myles and Vonqueshia
Gatewood, who resided in the apartment unit Lay had identified as the one at
which Clark was throwing objects. Clark also resided in that apartment with
Myles and Gatewood. Gatewood stated that earlier that morning Clark had poured
salsa on the floor and damaged the back door of the apartment. Later, while she
and Myles were asleep, she heard what she initially believed to be a car alarm. She
soon discovered, however, that the noise was Clark repeatedly sounding the horn
of his vehicle. Myles and Gatewood further stated that they were later awakened
by several loud bangs at their front door. When Myles went to investigate, he
encountered Clark, who was naked, covered in blood, and speaking nonsensically.
Myles followed Clark, but when Clark suddenly advanced toward him in an
aggressive manner, he kicked Clark to keep him away.
-3- Based on the above, Clark was indicted on February 5, 2020, for
Assault First Degree, a Class B felony for which imprisonment ranges from ten to
twenty years1 (for his alleged attack on Fulcher); Assault Fourth Degree2 (for his
alleged attack on Lay); Burglary First Degree, a Class B felony3 (for his alleged
forced entry into Lay and Fulcher’s apartment and ensuing assaults); Indecent
Exposure Second Degree;4 Menacing;5 Disorderly Conduct Second Degree;6 and
Public Intoxication.7 If tried and convicted of those charges, Clark could have
been sentenced to prison for as long as forty-five years8 and, considering his
Assault First Degree and Burglary First Degree charges, would have been deemed
a violent offender9 with very limited parole eligibility.10
1 See Kentucky Revised Statute (KRS) 508.010; KRS 532.060(2)(b). 2 KRS 508.030. 3 KRS 511.020. 4 KRS 510.150. 5 KRS 508.050. 6 KRS 525.060. 7 KRS 525.100. 8 Clark acknowledged this point in his Alford plea. 9 See KRS 439.3401(1)(b)1. & 7. 10 See KRS 439.3401(4).
-4- However, on April 15, 2021, Clark accepted the Commonwealth’s
plea offer and entered an Alford11 plea to the amended charges of second-degree
assault and second-degree burglary, both Class C felonies.12 The Commonwealth
recommended a total sentence of fifteen years’ imprisonment, consisting of
consecutive sentences of ten years for the amended charges of second-degree
assault and five years for second-degree burglary, and opposed probation.
Notably, the version of KRS 439.3401 in effect at the time did not classify either
amended offense as a violent offense requiring enhanced parole eligibility
restrictions.
Before accepting Clark’s plea, the circuit court conducted a Boykin
colloquy. 13 In response to the circuit court’s questions, Clark affirmed the terms
of the plea agreement and his understanding of the rights he was waiving by
entering the plea. After Clark waived preparation of a presentence investigation
report, the circuit court entered judgment in accordance with the plea agreement.
11 North Carolina v. Alford, 400 U.S. 24 (1970). 12 See KRS 508.020 and KRS 511.030. 13 Due process requires a trial court to make an affirmative showing, on the record, that a guilty plea is voluntary and intelligent before it may be accepted. Boykin v. Alabama, 395 U.S. 238, 242 (1969). The purpose of this showing is “to make sure [the defendant] has a full understanding of what the plea connotes and of its consequence[,]” including the constitutional rights that are waived by a guilty plea. Id. at 243-44.
-5- In April 2024, Clark then sought an evidentiary hearing and relief
from his conviction pursuant to RCr 11.42. The trial court summarily denied his
motion. This appeal followed.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding.” Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159
(Ky. 2009) (citation 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 v. Washington, 466 U.S. 668, 687 (1984);
accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
Regarding the first of those two prongs, “[a] deficient performance
contains errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.” Commonwealth v.
McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (internal quotation marks and
citation omitted). Moreover, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
-6- circumstances, the challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (internal quotation marks omitted). As further stated in
Strickland, “the court should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 690.
As to the second Strickland prong, the movant must show a
“reasonable probability” that the outcome of the proceeding would have been
different, but for his counsel’s deficient performance. Bowling v. Commonwealth,
981 S.W.2d 545, 551 (Ky. 1998). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Teague v. Commonwealth,
428 S.W.3d 630, 633 (Ky. App. 2014) (citation omitted). To establish prejudice in
the context of a guilty plea, as here, the movant must demonstrate “a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Stiger v. Commonwealth, 381 S.W.3d 230,
237 (Ky. 2012) (internal quotation marks and citations omitted). To elaborate:
[A]t the pleading stage it is movant’s burden to allege specific facts which, if true, would demonstrate prejudice. A conclusory allegation to the effect that absent the error the movant would have insisted upon a trial is not enough. The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution’s case, or the realistic potential for a lower sentence.
-7- Id. (footnote and citation omitted).
“In reviewing an RCr 11.42 proceeding, the appellate court reviews
the trial court’s factual findings for clear error while reviewing the application of
its legal standards and precedents de novo.” Ford v. Commonwealth, 628 S.W.3d
147, 156 (Ky. 2021) (citation omitted). “If an evidentiary hearing is not held, as is
the present case, our review is limited to whether the motion on its face states
grounds that are not conclusively refuted by the record and which, if true, would
invalidate the conviction.” Smith v. Commonwealth, 438 S.W.3d 392, 394 (Ky.
App. 2014) (internal quotation marks and citation omitted).
III. ANALYSIS
On appeal, Clark first argues that, prior to accepting the
Commonwealth’s plea offer, trial counsel failed to provide him with or review
discovery materials with him and that, had he been afforded the opportunity to
review the discovery, he would not have entered a guilty plea. However, the
circuit court properly rejected this claim because it amounts to nothing more than a
conclusory allegation. See Stiger, 381 S.W.3d at 237; RCr 11.42(2). As the circuit
court explained in its dispositive order, “[e]ven if it were error for trial counsel not
to review the discovery tapes with the defendant, the defendant does not identify
what content, and how that content, would support a conclusion that the
-8- defendant’s decision to reject the plea bargain and go to trial would have been
rational.”
Next, Clark argues that during his Boykin colloquy, he informed the
circuit court that he felt “forced into this plea deal, not by the judge, but by the
racist criminal justice system that has been unfavorable towards African
Americans.” Appellant’s Brief at 3. Clark asserts the circuit court accordingly
should have granted his RCr 11.42 motion. However, the circuit court properly
rejected this argument pursuant to RCr 11.42(2). Its explanation, which we adopt,
was as follows:
Just like during the plea colloquy, the defendant does not make any assertions that his plea was induced by trial counsel’s or a state actor’s threats, misrepresentations, or improper promises. Thus, to the extent that the defendant views his plea as being motivated by “a racist criminal justice system,” or the lack of review of the discovery DVDs, that motivation alone is not one that renders his plea involuntary. But furthermore, the record does not reflect that the defendant, despite his belief about the criminal justice system, “did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.” [Brady v. United States, 397 U.S. 742, 750 (1970)]. None of the defendant’s assertions, even if taken as true, negate the voluntariness of his Alford plea.
Next, Clark argues that trial counsel rendered ineffective assistance by
failing to present mitigating evidence of mental illness. Specifically, he contends
that “[i]f the allegations by Teri Fulcher, Jeffery Lay, and the Warren County
-9- Sheriffs [sic] Department are accurate, there has to be a [sic] some form of
explanation for why Appellant would enter a complete stranger’s home while
completely naked.” Appellant’s Brief at 4.
To the extent Clark is arguing his alleged offenses might have been
the product of mental illness, such 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). Furthermore, RCr 11.42
motions are not vehicles for conducting further discovery or fishing expeditions.
Prescott v. Commonwealth, 572 S.W.3d 913, 926 (Ky. App. 2019).
That aside, the circuit court did not address this argument, and Clark
provides no indication of where or how he preserved it for review. Neither
omission is surprising because our review of the record reveals that Clark never
raised this claim below. In his unverified RCr 11.42 motion, Clark did not assert
that mental illness may have caused him to commit the alleged offenses; indeed, he
has consistently maintained his innocence. The closest he came to raising the issue
was a single statement that “I have a documented mental illness that is
characterized by indecisiveness at all times.” Accordingly, we decline to address
this argument further because “[o]ur jurisprudence will not permit an appellant to
-10- feed one kettle of fish to the trial judge and another to the appellate court.” Owens
v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (citation omitted).
Next, Clark asserts:
[I]t was in the interest of justice to ensure if Appellant truly felt forced into accepting a plea of guilty for crimes in [sic] which he did not commit. Coupled with the fact that Appellant suffered injuries (such as stab wounds) with no evidence that Appellant had actually assaulted Terri Fulcher as there were no form of markings on Appellants [sic] hands to asserts [sic] as much. Although, Jeffery Lay did have wounds on his hands. However, his statement is that he only engaged potentially lethal force by way of the pocket knife that he had just received as a Christmas gift. Appellant asserts that the Warren Circuit Court abused its discretion when it erroneously allowed Appellant to enter a plea of guilty to charges in which he felt forced to take.
Appellant’s Brief at 4-5.
To the extent Clark argues the circuit court abused its discretion by
“erroneously allow[ing] [him] to enter a plea of guilty,” the circuit court properly
declined to consider that claim because it does not relate to any alleged deficiency
in counsel’s performance. As for the remainder of his argument, Clark essentially
contends that trial counsel was ineffective because, rather than negotiating a plea
agreement, counsel should have accepted his claim of innocence, pursued an
alternative-perpetrator defense, and advised him to proceed to trial. Specifically,
Clark suggests that he could have been viewed as the victim because Jeffery Lay
stabbed him between six and eight times. Additionally, Lay may have been the
-11- perpetrator of Fulcher’s injuries because Lay, unlike Clark, sustained injuries to his
hands during the incident.
The circuit court properly rejected this argument. As it explained,
Clark failed to identify any facts that would have supported a viable alternative-
perpetrator defense or rendered it rational for him to reject the plea offer and
proceed to trial. The mere fact that Lay stabbed Clark multiple times during the
incident, or that Lay sustained injuries to his hands while Clark did not, does not
reasonably support the conclusion that Lay assaulted Fulcher or that Clark was the
victim rather than the aggressor. On the contrary, the evidence indicated that Clark
unlawfully entered the victims’ residence, attacked Fulcher, and was stabbed by
Lay while Lay was defending himself and Fulcher. Under these circumstances,
counsel’s decision to negotiate a favorable plea agreement rather than pursue a
speculative alternative-perpetrator theory was objectively reasonable. Likewise,
Clark has failed to demonstrate that rejecting the plea offer and proceeding to trial
would have been a rational course of action. Stiger, 381 S.W.3d at 237.
Next, Clark argues that trial counsel rendered ineffective assistance by
failing to challenge whether the allegations against him supported the elements of
second-degree assault. According to Clark, counsel “made no effort to remedy the
injustice[.]” Appellant’s Brief at 5. However, Clark did not raise this claim in the
-12- circuit court, nor does he request palpable error review. Accordingly, we will not
address it. See Couch v. Commonwealth, 686 S.W.3d 172, 182 (Ky. 2024).
Clark’s final allegation regarding trial counsel’s performance is a bare
assertion that counsel abandoned him during critical stages of the criminal
proceedings. The circuit court summarily rejected that claim, concluding that it
was refuted by the record, which demonstrated that counsel negotiated a favorable
plea agreement on Clark’s behalf and actively represented him throughout the plea
and sentencing proceedings. We agree. Clark’s allegation is unsupported by the
record and amounts to little more than a repackaging of the arguments discussed
above.
Clark also contends that he received ineffective assistance from
counsel appointed to represent him in post-conviction proceedings, including those
relating to his RCr 11.42 motion and a motion to withdraw his Alford plea that he
later voluntarily withdrew. We need not address the particulars of these arguments
because they are unpreserved, Clark does not request palpable error review, and, in
any event, they are not legally cognizable. There is no constitutional right to
counsel in post-conviction proceedings and, therefore, no corresponding claim for
ineffective assistance of post-conviction counsel. Bowling, 981 S.W.2d at 552;
Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010).
-13- Finally, Clark argues the circuit court erred by denying his request for
an evidentiary hearing. However, as discussed above, his RCr 11.42 motion
consisted largely of conclusory allegations, speculation, and claims that were either
refuted by the record or insufficient to warrant relief even if accepted as true.
Accordingly, the circuit court did not err in denying the motion without an
evidentiary hearing. Smith, 438 S.W.3d at 394.
IV. CONCLUSION
For the reasons discussed above, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Terrell Tyrone Clark, pro se Russell Coleman Wheelwright, Kentucky Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
-14-