RENDERED: OCTOBER 1, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0899-MR
TRENDON GORMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 16-CR-00631
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Trendon Gorman (“Appellant”) appeals from an order
of the McCracken Circuit Court denying his motion to vacate a judgment pursuant
to Kentucky Rules of Criminal Procedure (“RCr”) 11.42. He argues that he
received ineffective assistance of counsel when his trial attorney gave him
incorrect advice regarding his sentence, parole eligibility, and the defenses he was waiving. In addition, he argues his trial counsel was ineffective when counsel
failed to investigate the victim’s recantation and failed to have his competency
evaluated. Appellant also argues that he was improperly denied an evidentiary
hearing. For the reasons addressed below, we find no error and affirm the order on
appeal.
FACTS AND PROCEDURAL HISTORY
On October 31, 2016, Appellant was charged with two counts of
sodomy in the first degree.1 The charges arose from an allegation that Appellant
had sexual contact with a ten-year-old boy on October 5 and October 6, 2016.
Appellant was seventeen years old at the time of the offenses and was certified as a
youthful offender.
On January 30, 2017, Appellant entered a guilty plea to both amended
charges of first degree sexual abuse, victim under twelve2 in exchange for the
Commonwealth’s recommended sentence of eight years in prison on each count to
be run concurrently. Appellant participated in the guilty plea colloquy
acknowledging that he understood the charges, was not coerced into pleading
guilty, and was happy with his lawyer’s representation. Appellant also
acknowledged that pursuant to the plea agreement, he would be subject to a five-
1 Kentucky Revised Statutes (“KRS”) 510.070. 2 KRS 510.110.
-2- year conditional discharge, would be required to register as a sex offender for life,
and would be required to complete the sex offender treatment program. As part of
the plea, Appellant waived his right under the uniform juvenile code to be
sentenced as a juvenile. On May 5, 2017, Appellant was sentenced to eight years
in prison as recommended by the Commonwealth.
Appellant, pro se, then moved to vacate his sentence pursuant to RCr
11.42. He argued that he should not be required to register as a sex offender under
Kentucky Revised Statute (“KRS”) 17.500(5) as required by the plea agreement
because he was a juvenile when he committed the offenses. He also argued that
his trial counsel incorrectly told him that he would be paroled after serving twenty
percent of his sentence, and that counsel was ineffective in failing to investigate a
reported recantation by the victim. Lastly, Appellant argued that his counsel was
ineffective in failing to request a competency examination. The matter proceeded
in McCracken Circuit Court, resulting in an order denying the motion entered on
June 19, 2020. This appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, though counsel, now argues that the circuit court
committed reversible error in failing to conclude that his trial counsel gave him
incorrect advice regarding his sentence, parole eligibility, and the requirement that
he complete the sex offender treatment program. Appellant asserts that his counsel
-3- gave ineffective assistance in advising Appellant that he would be required to serve
only twenty percent of his eight-year sentence and failed to advise him of the
defenses he was waiving. Specifically, Appellant asserts that during his juvenile
transfer hearing, his trial counsel asked no significant questions of the
Commonwealth’s witnesses, presented no evidence, and made no arguments to
keep Appellant’s case in the juvenile system. Appellant also contends that his
counsel improperly failed to investigate the victim’s recantation and was
ineffective in failing to request a competency evaluation. Finally, Appellant argues
that the circuit court erred in denying him an evidentiary hearing on the RCr 11.42
motion. He requests an opinion vacating his conviction or remanding the matter
for an evidentiary hearing.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
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 the defendant 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.
-4- Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
Id. at 691-92, 104 S. Ct. at 2066-67 (citation omitted). “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The defendant must show that
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 a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068. Additionally, “a hearing is required only if there is an issue of fact
which cannot be determined on the face of the record.” Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
As for Appellant’s claim that he would have rejected the plea offer
and gone to trial but for the advice that counsel gave him on sentencing, parole
eligibility, and his juvenile status, he must allege facts that if true would
-5- demonstrate that the decision to reject the plea would have been rational. Stiger v.
Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). In addressing this issue, the
McCracken Circuit Court determined that the rejection of the plea offer based on
counsel’s sentencing, parole eligibility, and juvenile status advice would not have
been rational. Prior to the plea offer, Appellant was faced with the prospect of life
in prison with a minimum parole eligibility of twenty years. With the plea,
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RENDERED: OCTOBER 1, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0899-MR
TRENDON GORMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 16-CR-00631
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Trendon Gorman (“Appellant”) appeals from an order
of the McCracken Circuit Court denying his motion to vacate a judgment pursuant
to Kentucky Rules of Criminal Procedure (“RCr”) 11.42. He argues that he
received ineffective assistance of counsel when his trial attorney gave him
incorrect advice regarding his sentence, parole eligibility, and the defenses he was waiving. In addition, he argues his trial counsel was ineffective when counsel
failed to investigate the victim’s recantation and failed to have his competency
evaluated. Appellant also argues that he was improperly denied an evidentiary
hearing. For the reasons addressed below, we find no error and affirm the order on
appeal.
FACTS AND PROCEDURAL HISTORY
On October 31, 2016, Appellant was charged with two counts of
sodomy in the first degree.1 The charges arose from an allegation that Appellant
had sexual contact with a ten-year-old boy on October 5 and October 6, 2016.
Appellant was seventeen years old at the time of the offenses and was certified as a
youthful offender.
On January 30, 2017, Appellant entered a guilty plea to both amended
charges of first degree sexual abuse, victim under twelve2 in exchange for the
Commonwealth’s recommended sentence of eight years in prison on each count to
be run concurrently. Appellant participated in the guilty plea colloquy
acknowledging that he understood the charges, was not coerced into pleading
guilty, and was happy with his lawyer’s representation. Appellant also
acknowledged that pursuant to the plea agreement, he would be subject to a five-
1 Kentucky Revised Statutes (“KRS”) 510.070. 2 KRS 510.110.
-2- year conditional discharge, would be required to register as a sex offender for life,
and would be required to complete the sex offender treatment program. As part of
the plea, Appellant waived his right under the uniform juvenile code to be
sentenced as a juvenile. On May 5, 2017, Appellant was sentenced to eight years
in prison as recommended by the Commonwealth.
Appellant, pro se, then moved to vacate his sentence pursuant to RCr
11.42. He argued that he should not be required to register as a sex offender under
Kentucky Revised Statute (“KRS”) 17.500(5) as required by the plea agreement
because he was a juvenile when he committed the offenses. He also argued that
his trial counsel incorrectly told him that he would be paroled after serving twenty
percent of his sentence, and that counsel was ineffective in failing to investigate a
reported recantation by the victim. Lastly, Appellant argued that his counsel was
ineffective in failing to request a competency examination. The matter proceeded
in McCracken Circuit Court, resulting in an order denying the motion entered on
June 19, 2020. This appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, though counsel, now argues that the circuit court
committed reversible error in failing to conclude that his trial counsel gave him
incorrect advice regarding his sentence, parole eligibility, and the requirement that
he complete the sex offender treatment program. Appellant asserts that his counsel
-3- gave ineffective assistance in advising Appellant that he would be required to serve
only twenty percent of his eight-year sentence and failed to advise him of the
defenses he was waiving. Specifically, Appellant asserts that during his juvenile
transfer hearing, his trial counsel asked no significant questions of the
Commonwealth’s witnesses, presented no evidence, and made no arguments to
keep Appellant’s case in the juvenile system. Appellant also contends that his
counsel improperly failed to investigate the victim’s recantation and was
ineffective in failing to request a competency evaluation. Finally, Appellant argues
that the circuit court erred in denying him an evidentiary hearing on the RCr 11.42
motion. He requests an opinion vacating his conviction or remanding the matter
for an evidentiary hearing.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
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 the defendant 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.
-4- Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
Id. at 691-92, 104 S. Ct. at 2066-67 (citation omitted). “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The defendant must show that
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 a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068. Additionally, “a hearing is required only if there is an issue of fact
which cannot be determined on the face of the record.” Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
As for Appellant’s claim that he would have rejected the plea offer
and gone to trial but for the advice that counsel gave him on sentencing, parole
eligibility, and his juvenile status, he must allege facts that if true would
-5- demonstrate that the decision to reject the plea would have been rational. Stiger v.
Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). In addressing this issue, the
McCracken Circuit Court determined that the rejection of the plea offer based on
counsel’s sentencing, parole eligibility, and juvenile status advice would not have
been rational. Prior to the plea offer, Appellant was faced with the prospect of life
in prison with a minimum parole eligibility of twenty years. With the plea,
Appellant received eight years in prison with a minimum parole eligibility of
twenty percent. We find no error in the circuit court’s conclusion that Appellant
would not have rationally rejected the plea offer and gone to trial but for counsel’s
purportedly deficient advice. Rather, Appellant chose the rational option by
avoiding the risk of a decades-long prison sentence. In addition, Appellant
expressly acknowledged as part of the guilty plea colloquy that by accepting the
plea, he understood that he would be a registered sex offender for life and would
have to complete the sex offender treatment program. We find no error.
As to Appellant’s assertion that counsel improperly failed to
investigate the victim’s recantation, we also find no error. The victim originally
told his grandmother that Appellant made him perform a sex act. According to a
McCracken County Sheriff’s report, the victim subsequently told his grandmother
that he was only joking about the allegation after she told him he could no longer
go to Appellant’s house to play video games. Appellant argues that his trial
-6- counsel should have investigated this matter more thoroughly, and that such an
investigation might have resulted in a different outcome.
Trial counsel has a duty to conduct a reasonable investigation of the
law and the facts. Commonwealth v. Rank, 494 S.W.3d 476, 485 (Ky. 2016). But
as noted by the circuit court, vague claims of an improper failure to investigate are
insufficient to warrant an evidentiary hearing and justify summary dismissal of the
RCr 11.42 proceeding.
Appellant has acknowledged that his trial counsel was aware of the
purported recantation months before Appellant chose to plead guilty. He does not
allege what a further investigation would have accomplished. Again, had he
rejected the plea offer to pursue what he characterizes as the victim’s recantation,
Appellant would have risked a jury trial, a guilty verdict, and a much longer term
of imprisonment. A mere conclusory claim that the outcome of the proceeding
would have been different but for the alleged error, taken alone, is not sufficient to
support a finding of ineffective assistance. Stiger, 381 S.W.3d at 237. We find no
error.
Appellant next argues that he received ineffective assistance when his
trial counsel failed to have him evaluated to determine his competency. He directs
our attention to the “Referral to County Attorney” form found at page 11 of the
record, which indicates that Appellant received a score of eight on the “GAIN-SS”
-7- mental health screening. The notation on the form states that a score of six or
higher indicates that the individual “needs assessment for further
counseling/treatment.” Appellant also asserts that he is bipolar and has attention
deficit hyperactivity disorder (“ADHD”). He argues that these facts should have
signaled to his trial counsel that he may not be competent to understand the legal
proceedings or to make informed decisions. Appellant cites case law and statutory
law for the requirement that the proceedings shall be stayed for a determination of
competency if there are reasonable grounds to believe that the defendant lacks the
capacity to appreciate the nature and consequences of the proceeding and/or to
participate in his defense. Appellant asserts that such grounds existed prior to his
acceptance of the plea agreement and that trial counsel did not provide effective
assistance in failing to seek a competency hearing.
[A] defendant is competent if he can consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. . . . [A] competent defendant can make a reasoned choice among the alternatives available to him when confronted with such crucial questions as whether he should testify, waive a jury trial, cross-examine witnesses, put on a defense, etc.
Commonweath v. Wooten, 269 S.W.3d 857, 864 (Ky. 2008) (internal quotation
marks and citation omitted). The question before us, then, is not whether
Appellant’s GAIN-SS score, bipolar illness, and ADHD entitle him to a
-8- competency hearing, but whether he has a reasonable degree of understanding of
the proceedings and can make reasoned choices among the alternatives available to
him. Id. When questioned during the guilty plea hearing, Appellant’s trial counsel
stated that he spoke with Appellant for about four hours and Appellant “very
intelligently went over all his evidence, showed very good reasoning, and he
understands it.” Appellant, when questioned, stated that he had no problems
understanding what was happening at the hearing. In addition, the circuit court
noted that Appellant readily pleaded guilty, was very satisfied with counsel’s
representation, and that there was no evidence that Appellant was coerced or failed
to understand the consequences of his plea.
We have no basis for concluding that Appellant’s trial counsel failed
to provide competent representation in not seeking a competency hearing. Further,
Appellant has not shown that the failure to question his competency prejudiced the
proceedings against him. Appellant failed to prove the elements of Strickland,
supra, and we find no error.
Lastly, Appellant argues that the circuit court committed reversible
error in failing to conduct an evidentiary hearing. An evidentiary hearing is
required on an RCr 11.42 motion when there is a material issue of fact which
cannot be conclusively proved or disproved by an examination of the record.
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Appellant does not
-9- reveal with specificity, however, which issue of material fact requires more than
reference to the record. Rather, he points in general terms to “various instances of
ineffective assistance of counsel” which he asserts require a hearing. We find no
error in the McCracken Circuit Court’s conclusion that the issues before it were
justiciable by reference to the record and without an evidentiary hearing.
CONCLUSION
Appellant did not demonstrate that his trial counsel made errors so
serious that he was not functioning as the “counsel” guaranteed to Appellant by the
Sixth Amendment. Further, Appellant failed to show the deficient performance
prejudiced the defense, i.e., that counsel’s errors were so serious as to deprive him
of a fair proceeding. Finally, all issues of material fact could be proved or
disproved by reference to the record; therefore, Appellant was not entitled to an
evidentiary hearing. For these reasons, we affirm the order of the McCracken
Circuit Court denying Appellant’s motion for RCr 11.42 relief from judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-10-