RENDERED: MARCH 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0255-MR
JEFFREY L. ROHRBACK APPELLANT
APPEAL FROM MASON CIRCUIT COURT
v. HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 14-CR-00058
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EASTON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Jeffrey Rohrback entered a conditional plea of guilty in
Mason Circuit Court to one count of rape in the first degree. Consistently with his
plea, and pursuant to a December 1, 2015 judgment, the circuit court sentenced
him to a total of twenty years’ imprisonment. Rohrback now appeals a January 8,
2020 order of the circuit court denying his Kentucky Rule of Criminal Procedure
(RCr) 11.42 motion to vacate the December 1, 2015 judgment. Upon review, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
In Rohrback v. Commonwealth, No. 2015-SC-000696-MR, 2017 WL
3634330 (Ky. Aug. 24, 2017), the Kentucky Supreme Court set forth much of the
relevant history of this matter:
On March 31, 2014, Maysville Police Department
Detective Jered Muse visited Rohrback’s apartment as
part of an investigation into the alleged rape and sexual
abuse of a ten-year-old girl. Detective Muse requested
that Rohrback accompany him to the police station,
which was across the street from Rohrback’s apartment.
Rohrback agreed and the pair walked back to the police
station for questioning.
At the beginning of the interview, Detective Muse
informed Rohrback that he was free to leave and
informed him of his Miranda[1] rights. Approximately
one hour into the interview, the topic of a polygraph
examination came up. At that point, Rohrback stated that
“I want to go. I want to leave.” However, Detective
Muse continued to question Rohrback. At the end of the
interview, Detective Muse asked if he could photograph
Rohrback’s apartment. Rohrback agreed and the two
walked over to the apartment together.
Several hours later, Rohrback returned to the lobby
of the police station and requested to speak with
Detective Muse. Once in the interview room, Detective
Muse reminded Rohrback that he was free to leave at any
time. Miranda warnings were not repeated by Detective
Muse for Rohrback’s second interview. After making
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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several incriminating statements, Rohrback concluded
the interview and returned home.
Shortly thereafter, Detective Muse again visited
Rohrback’s apartment and asked him if he was willing to
write a letter of apology to the victim. Subsequently,
Rohrback accompanied Detective Muse to the police
station where he wrote a letter of apology, which
included incriminating statements. After completing the
letter, Rohrback was arrested by Detective Muse.
In April 2014, Rohrback was indicted by the
Mason County grand jury for two counts of first-degree
rape, two counts of first-degree sexual abuse, and for
being a second-degree persistent felony offender. After
indictment, Rohrback moved to suppress his oral and
written statements to Detective Muse arguing that they
were obtained in violation of “[his] Miranda Rights,
Right to Counsel and Right to Remain Silent.” The
circuit court held a hearing to consider Rohrback’s
claims. After hearing testimony from Detective Muse,
the circuit court concluded that Rohrback was not in
custody when interviewed by the police and as such
denied the motion to suppress.[FN]
[FN] At the suppression hearing, the circuit
court also heard testimony concerning a
statement Rohrback made to a social worker
from the Cabinet for Health and Family
Services. That statement was determined to
be inadmissible at trial as Rohrback had not
been Mirandized and was subjected to a
custodial interview by a state actor at the
Mason County Detention Center.
After the denial of his motion to suppress,
Rohrback withdrew his plea of not guilty and entered a
conditional guilty plea. Rohrback pled guilty to a single
count of first-degree rape. The remaining charges were
dismissed. For this offense, the Commonwealth
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recommended a total sentence of twenty years, and the
circuit court sentenced Rohrback accordingly.
Id. at *1-2.
In his direct appeal before the Kentucky Supreme Court, Rohrback
argued the circuit court erred by denying his motion to suppress and his additional
motion to enforce what he asserted was a more favorable “plea agreement” he had
entered with the Commonwealth by and through Detective Muse. The Court
rejected both of Rohrback’s arguments, explaining: (1) his motion to suppress had
been properly denied because he had not been in custody when he made his
incriminating statements at issue; and (2) his subjective belief that he had
negotiated a plea agreement with Detective Muse was unreasonable. Id. at *2-6.
Rohrback later moved to vacate his sentence pursuant to RCr 11.42,
arguing his trial counsel had been deficient in representing him. Rohrback was
provided with appointed counsel and the circuit court held a full evidentiary
hearing to resolve the numerous allegations of his motion. After considering the
evidence presented – which primarily consisted of Rohrback’s own testimony and
the testimony of his trial counsel, Paul Cox – the circuit court entered a detailed
order denying Rohrback’s motion. This appeal followed. The specifics of the
circuit court’s order, as well as other relevant details, will be discussed in our
analysis.
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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). An RCr 11.42 motion “is limited to issues that were
not and could not be raised on direct appeal.” Id.
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, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d
37, 39-40 (Ky. 1985). As explained by the Kentucky Supreme Court, “[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 circumstances, the challenged action might be considered sound trial
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strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (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, 104 S.
Ct. at 2066.
As to the second Strickland prong, the defendant has the duty to
“affirmatively prove prejudice.” Id. at 693, 104 S. Ct. at 2067. In the context of a
guilty plea:
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.
Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (citations and footnote
omitted).
Where, as here, the trial court conducts an evidentiary hearing
regarding the claim of ineffective assistance of counsel, RCr 11.42(6) requires the
court to “make findings determinative of the material issues of fact and enter a
final order accordingly.” Cawl v. Commonwealth, 423 S.W.3d 214, 216 (Ky.
2014). “[W]hen reviewing a trial court’s findings of fact following an RCr 11.42
evidentiary hearing, an appellate court utilizes the clearly erroneous standard set
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forth in Kentucky Rules of Civil Procedure (CR) 52.01. Findings of fact are not
clearly erroneous if supported by substantial evidence. Even though claims of
ineffective assistance of counsel are subject to de novo review, a reviewing court
should defer to the determination of facts made by the trial judge.” Saylor v.
Commonwealth, 357 S.W.3d 567, 570-71 (Ky. App. 2012) (citations omitted).
ANALYSIS
In his RCr 11.42 motion, Rohrback presented what the circuit court
regarded as nine different claims of ineffective assistance of counsel. In its
dispositive order of January 8, 2020, the circuit court summarized and addressed
each of his claims as follows:
I. That Trial Counsel was Ineffective when Counsel
Failed to Confer with the Defendant Without Undue
Delay and As Necessary.
Honorable Paul W. Cox, Jr., a staff attorney with the
Department of Public Advocacy since 2000, was
assigned this case due to a conflict with the local
Department of Public Advocacy’s Office. Mr. Cox
testified that he met with the Defendant shortly after he
received the case file, met in person with Defendant
between 5-10 times, and conferred with Defendant more
times by phone. Additionally, Defendant admitted in his
guilty plea colloquy on September 23, 2015 that he had
all the time he felt necessary to talk with his attorney and
was fully satisfied with the services his attorney
performed. Defendant’s assertion that his counsel failed
to meet with him is not credible. Counsel prior to Mr.
Cox had done extensive work on the case, which was
reviewed by Mr. Cox.
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II. That Trial Counsel was Ineffective when Counsel
Failed to Request for Bill of Particulars.
It is clear from the record that the Commonwealth
provided the information which fairly informed the
Defendant of his charges and the circumstances. See
page 29 of the record, “Commonwealth’s Discovery
Response”, which includes the Case Report from the
Maysville Police Department, Copy of Grand Jury
Testimony, Written Statement from Jeffrey Rohrback and
Lisa Hampton, Medical Exam from the Buffalo Trace
Children’s Advocacy Center, and Interviews and
Photographs. Additionally, more of the information was
fleshed out in the suppression hearing testimony and
supplemental discovery as shown by the record.
III. That Trial Counsel was Ineffective when Counsel
Failed to Seek, Interview, and Take Depositions of the
Commonwealth’s Witnesses as well as Witnesses for
the Defense.
Defendant has shown no way any more investigation
would have resulted in any different outcome. There was
no alibi suggested by Defendant. Defendant confessed.
Defendant’s counsel extensively questioned the Detective
who interviewed the Defendant, and questioned the
social worker at the suppression hearing. The 10 year old
victim was not interviewed, but undoubtably would not
have been allowed to interview by her mother. Mr. Cox
had “limited success” when he attempted to contact the
victim’s mother. The Court believes defense counsel was
very aware of what each witness would say.
IV. That Trial Counsel was Ineffective when Counsel
Failed to Utilize Expert Assistance in Preparing for
Trial as well as Cross-Examination of the
Commonwealth’s Witnesses.
The record is replete with requests and orders for expert
assistance which, even if requested by prior counsel,
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were available to Mr. Cox. Mr. Cox testified that in his
30 year attorney experience and recent extensive
experience with false confession law, any false
confession assertion would have been pointless. False
confession didn’t fit the facts of this case. The Court
finds Counsel’s performance was not deficient due to any
lack of use of experts.
V. That Trial Counsel was Ineffective when Counsel
Failed to do Pre-Trial Investigation into the
Defendant’s case at hand; Further, when Counsel
Failed to Properly Advise Mr. Rohrback of Viable
Defense.
A. The testimony of counsel reflects extensive pretrial
investigation, going over taped statements, carefully
reviewing the file, talking with the previous attorney,
inquiring of the investigating witnesses at the suppression
hearing. The Court believes Mr. Cox was as ready as he
could be or was well on his way to being ready for trial,
had Defendant not entered a guilty plea.
B. Defendant does not list what “viable defense” his
attorney should have advised him of. Defendant
confessed several times.
VI. That Trial Counsel was Ineffective when Counsel
Failed to Advocate for Mr. Rohrback Against the
Commonwealth’s Allegations at Hand.
The allegation is too vague to address with specificity.
VII. That Trial Counsel was Ineffective when
Counsel Failed to Fully Explain to Mr. Rohrback Any
Possible Defenses; Further, When Counsel Failed to
Fully Explain to Mr. Rohrback of his Rights he would
Waive if he Accepted a Plea.
A. Counsel was sure he explained to Defendant what the
Commonwealth would have to prove – based upon him
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doing so in every case – and “absolutely” went over it
very carefully repeated times. Counsel was sure he went
over very carefully what their defense strategy would be.
B. Counsel and Defendant certified on the Motion to
Enter Guilty Plea (9/23/2015) and Transcript that
Defendant’s constitutional rights were fully explained,
including that Defendant knew the charges and any
defenses to them.
C. Defendant acknowledged in his plea colloquy that he
knew he was receiving 20 years, and that he would not be
eligible for parole until he had served 85% of the
sentence. Any other collateral consequences (though
none are specified, and this aspect of the motion failed
for that reason) pale in comparison to the 85% (17 year)
minimum service acknowledged by the Defendant.
VIII. That Trial Counsel Failed to Protect the Rights
of his Client.
The Court believes Mr. Cox protected the rights of his
client, obtaining the minimum sentence on a single
charge, having the Persistent Felony Offender charge
dismissed, and preserving his client’s right to appeal the
Circuit Court’s pretrial rulings regarding suppression of
statements.
IX. That Trial Counsel’s Cumulative Errors Resulted
in the Entry of an Unconstitutional Conviction.
The Court does not believe trial counsel’s errors, if any,
cumulatively violated Defendant’s constitutional rights.
In sum, the circuit court denied Rohrback’s RCr 11.42 motion after
determining Rohrback had failed to survive either the “performance” or
“prejudice” prongs provided in Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
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On appeal, Rohrback largely restates, without further elaboration, the
nine claims he offered below that the circuit court boldfaced and underlined in its
order set forth above. Upon review, the circuit court’s findings with respect to
each of those claims are consistent with Cox’s testimony, the record, and the
circuit court’s sound discretion and fact-finding role; and it is enough to state that
they are not indicative of clear error. CR 52.01.
However, Rohrback also presents several other claims that are
distinctly different from what he offered during the evidentiary hearing. His initial
set of these claims – which he now asserts under the auspices of what the circuit
court determined were his claims I, V, VI, VIII, and IX – stems from
approximately three minutes of Cox’s testimony that Rohrback did not cross-
examine during the evidentiary hearing. Before discussing the specifics of these
claims, it is necessary to review the testimony in question:
COUNSEL: Do you recall when you first met with Mr.
Rohrback regarding the case?
COX: I do not recall the exact date. Shortly after I got
the file.
COUNSEL: And do you recall what your first
appearance was here in court on the case?
COX: The date? No.
COUNSEL: I believe the record will speak for itself on
that.
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COX: I, you know, I haven’t reviewed those records in,
it’s been a few years now. To try to recall the exact date
is, for me, it’s an impossibility.
COUNSEL: I understand. Um, do you know
approximately how many times you met with or spoke
with Mr. Rohrback?
COX: I didn’t count. I would estimate, you know,
somewhere between five and ten times.
COUNSEL: And were those in person or via telephone?
COX: Those would be in person. And on the phone, um,
more.
COUNSEL: And the in-person visits, did they take place
here in the courthouse?
COX: It would be the courthouse and jail.
COUNSEL: Did you review the discovery and the
evidence that would be used against Mr. Rohrback with
him?
COX: Very carefully.
COUNSEL: And where did that take place?
COX: My office.
COUNSEL: And did you explain each charge that Mr.
Rohrback had been charged with, and what the
Commonwealth would have to prove, to convict him of
those?
COX: You know, I’m sure I did, based upon what I do
with every case. I’m gonna have to go on my, um, I
don’t remember the exact date and time and location that
we carefully went over it, but I know that I do that on a
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regular, on every, especially a serious case like this, I’ll
take an extra amount of time to break it down. And with
Mr. Rohrback, I think we went over and over some areas
repeatedly that, that we were interested in.
COUNSEL: Did you discuss, um, what the maximum
penalties would be?
COX: Absolutely.
COUNSEL: And, um, did you discuss what your defense
strategy would be with him?
COX: More than once, very carefully.
(Emphasis added.)
Rohrback’s first argument is based upon his interpretation of the
foregoing exchange and what he believes was a contradiction in Cox’s testimony
demonstrating, in his view, that he and Cox did not review any aspect of his case
together. In his brief, he argues:
A.) “THE ONLY PLACE” Hon. Paul Cox was adament
[sic] and positive about having discussions with Mr.
Rohrback was in “MY OFFICE” [VR 8/14/2019 4:13-
4:22.]
...
B.) Hon. Paul Cox testified, he did not explain each
charge and did not discuss what the Commonwealth
would have to prove to convict Mr. Rohrback of the
charges. When asked if he did, Mr. Cox testified answer
[sic] was “NO” [VR 8/14/2019 4:26-4:35.]
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C.) Mr. Cox could not have discussed the maximum
penalties of each charge, because he testified that he did
not explain each charge with Mr. Rohrback. Further, Mr.
Rohrback was never present in Mr. Cox’s office to
discuss anything. Therefore, Mr. Cox’s testimony at [VR
8/14/2019 5:16-5:30] could not have taken place.
D.) According to Mr. Cox’s own testimony, any
important and vital conversations regarding Mr.
Rohrback’s case could only have taken place in Mr.
Cox’s office.
E.) The Trial Record shows no motions put forth by
Hon. Paul Cox, and does not show any orders issued by
the Trial Court, to have Mr. Rohrback transported to
Hon. Paul Cox’s office.
(Footnotes omitted.)
But, there are at least two flaws in Rohrback’s argument which render
it meritless. First, part “B.)” is founded entirely upon Rohrback’s
misrepresentation of the record. When asked, “did you explain each charge that
Mr. Rohrback had been charged with, and what the Commonwealth would have to
prove, to convict him of those?” Cox did not say “No.” Rather, as emphasized
above, Cox prefaced his answer with “you know,” and then testified he believed he
did so based upon his usual practice.
Second, with respect to the remaining four parts of his argument, Cox
never testified he met with Rohrback in his office. Cox testified he only met with
Rohrback at “the courthouse and jail.” True, Cox also indicated he “review[ed] the
discovery and the evidence that would be used against Mr. Rohrback with him,”
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and did so in his office. However, Cox further testified he frequently
communicated with Rohrback by telephone. Accordingly, it is reasonable to infer
that Cox (1) had a telephone in his office and (2) used that telephone to call
Rohrback at the jail to discuss and review the discovery and the evidence pertinent
to Rohrback’s case. If Rohrback desired further clarification, he could have cross-
examined Cox on this point. As noted, he chose not to do so; and his speculation
about what cross-examination might have revealed provides no basis for reversing.
We now proceed to Rohrback’s second argument with respect to
Cox’s above-stated testimony. He contends that call logs from the jail where he
was housed during the pendency of his underlying charges demonstrate Cox spoke
with him fewer than what Cox testified was “between five and ten times.” He
concedes, however, that he did not adduce the aforementioned call logs below.
Accordingly, we cannot review this or any other argument Rohrback now asserts
based upon these call logs, as “an appellate court cannot consider items that were
not first presented to the trial court.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky.
App. 2012).
Moving on, Rohrback’s next additional argument – which he also
offers under the umbrella of his claims I, V, VI, VIII, and IX – is that he told Cox
on several occasions that he wished to proceed to trial, but that Cox nevertheless
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coerced him into accepting the Commonwealth’s plea offer. In his brief, he
describes how Cox managed to do so:
Mr. Rohrback states, Mr. Cox overwhelmed his
free will on September 23, 2015, by intentionally holding
any and all information regarding Mr. Rohrback’s
transport to Rowan County Courthouse at 9am [TR 1,
144]. Mr. Cox deceived him, ambushed him, with a
meeting between Cox, the Commonwealth Attorney and
a retired Judge, the morning of September 23, 2015, with
intent to overwhelm and scare Mr. Rohrback into taking
a plea deal, for the purpose of making good on his
opening statement to the Trial Court on 7/10/2015 when
Mr. Cox stated, “Well, I mean I want to pursue potential
plea options.” [VR 7/10/2015 11:05:46].
As Mr. Rohrback states in his affidavit [Exhibit 1],
Mr. Cox never told him he was being transported to
Rowan County Courthouse. Never told him he was
going to be confronted by a retired Judge. Further, Mr.
Rohrback states in his Affidavit [Exhibit 1], he became
“so scared . . . I thought I would pee myself” and “scared
to death” when he found out where he was going and was
confronted with a retired Judge. And became “scared
and confused” when the Judge told him, “if he was over
my case he would find me guilty of the crime and lock
me up for a long time.”
After being ambushed by an unforeseen meeting
and “scared” into taking a plea deal by a retired Judge,
Mr. Rohrback was immediately transported back to
Mason Circuit Court where, Mr. Rohrback, “scared to
death” and “confused,” unknowingly and unintelligently
agreed to and signed a guilty plea deal because “he only
took the plea deal because I did not feel that I had any
other choice.” [Exhibit 1].
Mr. Rohrback was not in his right mind when he
agreed to and signed the guilty plea deal. Mr. Cox could
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not have discussed anything about the plea deal or
informed Mr. Rohrback of the possible consequences or
rights Mr. Rohrback would give up, if Mr. Rohrback
signed the plea deal.
With that said, there are three notable aspects of this argument. First,
it gleans the entirety of its evidentiary support from an affidavit (Exhibit 1) that
Rohrback attached to his RCr 11.42 memorandum and filed of record on August 9,
2018 – over a year prior to the August 14, 2019 evidentiary hearing. Second,
Rohrback cites no testimony or other evidence adduced at the evidentiary hearing
in support of this argument, nor does he identify when, during the evidentiary
hearing, he made this argument. Indeed, this Court has reviewed the entirety of the
evidentiary hearing; and there, Rohrback did not make this argument at all or
mention his prior affidavit. Third, and of equal import, the circuit court made no
findings and did not otherwise address this argument in its dispositive order.
Consequently, we are not authorized to address this argument. Absent the
introduction of evidence to support an allegation made in an RCr 11.42 hearing,
the issue is properly deemed to have been waived. King v. Commonwealth, 408
S.W.2d 204, 205 (Ky. 1966). Moreover, because the circuit court made no
findings relative to this argument, and because Rohrback filed no post-judgment
motion requesting findings, this argument cannot serve as a basis for reversing or
remanding. See RCr 11.42(6).
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Next, Rohrback faults Cox for failing to retain two expert witnesses,
Drs. Fabian and Guertin. Regarding the former expert, Cox testified he considered
retaining Dr. John Fabian, a neuropsychologist, to evaluate Rohrback’s mental
health out of an “abundance of caution” because Rohrback had made claims that
the incriminating statements he had provided the police were not accurate. In his
brief, Rohrback does not explain why retaining Dr. Fabian was necessary for his
case, or how Dr. Fabian would have affected the outcome. Accordingly, this
cannot serve as a basis of error.
As for the latter expert, Rohrback’s only mention or description of Dr.
Stephen Guertin during these RCr 11.42 proceedings prior to this appeal was
limited to the following nebulous statement set forth in Rohrback’s August 9,
2018, RCr 11.42 memorandum:
Funding was sought, and obtained, for several experts by
Hon. Sara Fightmaster, prior of her being forced off Mr.
Rohrback’s case for a conflict. One such expert was a
Pediatric Expert, Dr. Stephen Guertin, MD., who was
very damaging to the Commonwealth’s expert, Dr. Ross
as well as the Commonwealth’s case.
Rohrback waived further review of this issue by failing to mention or
make any argument regarding Dr. Guertin during the evidentiary hearing. King,
408 S.W.2d at 205. The circuit court also made no findings relative to this
argument, and Rohrback filed no post-judgment motion requesting findings. See
RCr 11.42(6). Indeed, the first substantive discussion Rohrback has presented
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regarding Dr. Guertin has been in this appeal. Specifically, he filed a motion with
this Court to take “judicial notice” of a “transfer memo” that his prior counsel
purportedly gave to Cox when Cox was appointed to represent him in 2015, which
discussed Dr. Guertin in depth – a “transfer memo” Rohrback never adduced
below. Because Rohrback made no argument before the circuit court regarding Dr.
Guertin or this transfer memo, we are not at liberty to address this aspect of
Rohrback’s appeal, either. Oakley, 391 S.W.3d at 380.
Rohrback also argues Cox was ineffective “when counsel failed to
supress [sic] defendants statements.” Over the next two pages of his brief,
Rohrback then proceeds to reargue why, in his view, the incriminating statements
at issue in his direct appeal before the Kentucky Supreme Court should have been
suppressed. However, as indicated at the beginning of this Opinion, Cox attempted
to suppress Rohrback’s statements. His lack of success – which appears to be the
extent of Rohrback’s complaint in this regard2 – does not indicate he was
ineffective. “A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
2
Rohrback’s memory may also have played an initial role in his assertion of this argument.
During the RCr 11.42 evidentiary hearing, Rohrback testified he did not recall that Cox had, as
the record demonstrates, moved to suppress his incriminating statements. Nor did he recall, as
the record demonstrates, that he attended the suppression hearing with Cox. Rohrback later
acknowledged during his testimony that he was in the courtroom with Cox during the
suppression hearing, but he insisted that he still could not remember watching the recording or
hearing the audio of his confession at that time.
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circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
And, “the test for effectiveness is not whether counsel could have done more, but
rather whether counsel’s errors undermined the reliability of the trial.” Baze v.
Commonwealth, 23 S.W.3d 619, 625 (Ky. 2000), overruled on other grounds by
Leonard, 279 S.W.3d 151 (citations omitted). We discern no ineffective assistance
by trial counsel on this claim.
Lastly, Rohrback asserts that each of his claims set forth above
demonstrate that Cox failed to provide him “conflict-free” assistance of counsel.
We disagree. As discussed, each of his claims set forth above is either unpreserved
or lack merit.
CONCLUSION
We have reviewed the breadth of Rohrback’s claims. In sum, the
circuit court committed no error below; and the additional arguments Rohrback
presents on appeal present no basis for invalidating the circuit court’s decision to
deny his RCr 11.42 motion. Accordingly, we AFFIRM.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jeffrey L. Rohrback, pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Melissa A. Pile
Assistant Attorney General
Frankfort, Kentucky
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