RENDERED: MARCH 22, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1285-MR
DIONTRE MARTIN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CR-001046-003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Appellant Diontre Martin (“Martin”) appeals the order of
the Jefferson Circuit Court denying his Kentucky Rule of Criminal Procedure
(“RCr”) 11.42 motion to vacate, set aside, or correct his sentence, which claimed
ineffective assistance of counsel.
I. FACTUAL AND PROCEDURAL HISTORY
In February 2012, Martin and two co-defendants committed a home
invasion robbery while armed with handguns. The Louisville Metropolitan Police
Department was dispatched to the scene, and Officer Lamont Washington
(“Officer Washington”) pursued Martin and the two co-defendants upon arrival.
During the pursuit, Martin fired three rounds from his handgun at Officer
Washington, striking him in the upper-left chest and on his thumb, causing serious
physical injury.
In July 2014, Martin pled guilty to attempted murder and three counts
of first-degree robbery (the home invasion involved three victims). The
Commonwealth recommended a sentence of 20 years for each count, to run
concurrently for a total of 20 years, which the circuit court accepted. The day
before Martin entered his plea, one of his co-defendants, Dominique Gosnell
(“Gosnell”), pled guilty to three counts of second-degree robbery, second-degree
burglary, second-degree assault, fleeing or evading police, possession of a handgun
by a minor, and theft by unlawful taking over $500. Gosnell received sentences of
15 years and two years, to run consecutively for a total of 17 years. Two months
later, the other co-defendant, Donald Jackson (“Jackson”), pled guilty to three
counts of facilitation to robbery and received a sentence of ten years, probated for
five years.
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In August 2015, Martin, pro se, filed an RCr 11.42 motion to vacate,
set aside, or correct his sentence, claiming his trial counsel was ineffective. The
motion asserted that trial counsel advised him to plead guilty without investigating
the facts of the case; that he had no choice but to plead guilty because of his
counsel’s performance; and he alleged eight instances of trial counsel’s
ineffectiveness. Martin requested an evidentiary hearing concerning any material
issues which could not be conclusively disproved by an examination of the record.
Martin also asked the circuit court to appoint him counsel and provide time for that
counsel to supplement his motion, if necessary. Additionally, Martin submitted an
affidavit from Gosnell stating that Martin was wrongly accused because he had
been pressured to go to the victims’ house in February 2014; he had been
intoxicated during the incident; and he did not take anything from the victims.
Gosnell stated that he would be willing to testify to Martin’s innocence “in the
future.”
The next month, the circuit court appointed counsel to assist with
Martin’s RCr 11.42 motion,1 and two years later, in 2017, a private attorney
entered an appearance for Martin.2 That attorney then withdrew in 2021, and the
1
Once the circuit court appointed the attorney, the record was silent until Martin hired private
counsel.
2
Likewise, after Martin hired private counsel, the record was silent until that attorney withdrew.
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circuit court again appointed counsel to assist Martin. In July 2022, the newly
appointed counsel reviewed the motion and record and found that Martin had
sufficiently pled his claims. As such, that counsel filed a notice of submission on
the pleadings, asking the circuit court to consider Martin’s RCr 11.42 motion and
provide the relief requested.
Upon review, the circuit court denied Martin’s motion without an
evidentiary hearing, finding his claims were insufficiently alleged or otherwise
disproved by the record. In its order, the circuit court explained that Martin failed
to specifically state the grounds on which he was challenging his sentence because
Martin’s pleading included only “scant factual support and mostly amount[ed] to
bald allegations.” Nevertheless, the circuit court analyzed each of Martin’s eight
arguments pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), but still found each to be meritless. Martin appealed,
claiming the circuit court should have conducted an evidentiary hearing and that
his post-conviction counsel was ineffective for failing to supplement his motion.
II. STANDARD OF REVIEW
An evidentiary hearing is required for an RCr 11.42 motion only when
“there is a material issue of fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the record.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted).
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On appeal, this Court must determine whether the allegations
contained in the RCr 11.42 motion are “conclusively refuted by the record” and
whether, “if true, would invalidate the conviction.” Lewis v. Commonwealth, 411
S.W.2d 321, 322 (Ky. 1967) (citations omitted). An evidentiary hearing is not
required where “the face of the record as a whole” refutes the allegations. Sparks
v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citation omitted).
As to Martin’s claims of ineffective assistance of post-conviction
counsel, he recognizes those issues were not properly preserved and requests
palpable error review. RCr 10.26 provides that
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a new
trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
III. ANALYSIS
Martin claims the circuit court erred when it failed to hold an
evidentiary hearing on his RCr 11.42 motion. Additionally, Martin argues his
post-conviction counsel from 2015 was ineffective because the counsel represented
him for two years and never supplemented his RCr 11.42 motion. Likewise,
Martin argues that the private counsel he hired in 2017 was ineffective because that
counsel never supplemented the motion, although he represented Martin for four
years.
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A. Trial Counsel
First, Martin claims the circuit court erred when it failed to hold an
evidentiary hearing on his RCr 11.42 motion regarding trial counsel. Specifically,
Martin claims that a hearing was required to prove he “intelligently entered” the
plea agreement. In such cases, our Supreme Court has found, “the voluntariness of
[a] plea depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases[.]” Roach v. Commonwealth, 384 S.W.3d
131, 140 (Ky. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88
L. Ed. 2d 203 (1985)).
To prove that counsel’s advice met that standard, and “to be entitled
to relief under RCr 11.42, the movant must ‘state specifically the grounds on which
the sentence is being challenged and the facts on which the movant relies in
support of such grounds.’” Id. (quoting RCr 11.42(2)). As such, “[c]onclusory
allegations that counsel was ineffective without a statement of the facts upon
which those allegations are based do not meet the rule’s specificity standard and so
‘warrant a summary dismissal of the motion.’” Id. (citations omitted).
Our Supreme Court has been clear that an RCr 11.42 motion does not
require a hearing when the claims are refuted by the record. Sanborn v.
Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151, 158-59 (Ky. 2009). “A hearing is
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also unnecessary where the allegations, even if true, would not be sufficient to
invalidate the conviction.” Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky.
1998) (citing Brewster v. Commonwealth, 723 S.W.2d 863, 865 (Ky. App. 1986)).
Likewise, if the claims are not alleged with the requisite particularity, the circuit
court “cannot tell whether an evidentiary hearing is necessary” and dismissal of the
motion is warranted without a hearing. Roach, 384 S.W.3d at 140.
As the circuit court detailed in its order denying Martin’s motion, each
of the eight allegations either lacked requisite particularity or was refuted by the
record. First, Martin claimed his trial counsel was ineffective because she failed to
call witnesses who would have testified that Martin had no part in the crime other
than being present while intoxicated. As the circuit court noted, aside from
Gosnell, Martin failed to specify who he would have called to testify and what they
would have said, which was not sufficient to prove ineffectiveness. See Williams
v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011) (RCr 11.42 movant failed to
specify what evidence the witnesses would have provided, which was fatal to his
claim that counsel was ineffective for failing to subpoena them.).
Martin referenced only Gosnell, who, according to his affidavit,
would testify “in the future” that Martin was intoxicated while participating in the
robbery and had kept no proceeds from the crime. Despite that assertion, Martin
provided no evidence, and the affidavit did not state, that Gosnell would have
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agreed to testify before Martin had entered his guilty plea in 2014 and that if he
had agreed, Martin’s trial counsel knew of such testimony. Indeed, Gosnell
specified that he would testify “in the future.” Further, Gosnell’s affidavit
referenced only Martin’s participation in the robbery, not Martin’s participation in
the attempted murder of the police officer, which was the primary reason for
Martin’s stiffer penalty than his co-defendants.
As such, the face of the record refuted that Gosnell was willing to
testify on Martin’s behalf prior to entering the plea agreements; therefore, trial
counsel did not fail to call witnesses – namely, Gosnell – who would have testified
that Martin “had no part in the crime other than being present while intoxicated.”
Likewise, Gosnell did not state he would testify regarding the attempted murder
charge, so testimony regarding only the robbery would not have invalidated
Martin’s sentence and thereby did not rise to the level of “ineffective.” See
Bowling, 981 S.W.2d at 549.
Second, Martin asserted that trial counsel was ineffective because she
failed to move to suppress Gosnell’s and Jackson’s inculpatory statements against
him on the basis that they were coerced. However, Martin failed to cite any
inculpatory statements or instances of coercion with any particularity. Similarly, in
Roach, the defendant claimed in his RCr 11.42 motion that “the girlfriend’s
consent was ‘coerced.’” Roach, 384 S.W.3d at 140. The defendant simply
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asserted that “the police somehow threatened the girlfriend, but he fail[ed] to allege
the threat with any particularity, and it is that level of factual specificity that
RCr 11.42(2) requires[.]” Id. Therefore, our Supreme Court found that the
defendant’s motion “did not satisfy [the] specificity requirement, [and] it was
subject to “summary dismissal[.]” Id. Likewise, here, Martin failed to allege the
inculpatory statements – much less the “coercion” – with any particularity, and that
claim was subject to dismissal without a hearing.
Third, Martin claimed that his trial counsel failed to consult with an
independent ballistics expert before trial, whom he claims would have testified that
Martin “only had 1 of 3 components of alleged gunshot residue on his person,
which tended to show that he had not fired a weapon [that day].” Again, Martin
failed to assert the claim with requisite particularity. See id. Martin simply
speculated as to what an independent ballistics expert might have concluded and
testified. Martin did not indicate whether such expert existed, much less whether
any expert had reviewed the evidence and shared Martin’s assertions.
Additionally, at trial, the Commonwealth’s ballistics witness testified that it could
not determine whether Martin had fired a gun the day of the incident because its
gunshot residue analysis was inconclusive. It is unlikely that a second witness
testifying to a similar result would have invalidated the outcome of the case. See
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Bowling, 981 S.W.2d at 549. Again, Martin’s allegation did not meet the standard
for ineffectiveness.
Fourth, Martin claimed that trial counsel had failed to file a motion in
limine3 regarding the facts that: (1) only one of three alleged witnesses picked
Martin as the alleged perpetrator; and (2) Martin had no “fruits of the alleged
robbery.” The circuit court noted that those “facts” were not submitted to the jury;
however, if they had been, it likely would have been the Commonwealth who
would have filed a motion in limine regarding them. Indeed, even if those
assertions could have been substantiated, they would not have been subject to
exclusion by a motion in limine. Alternatively, such assertions during a plea
colloquy would have been irrelevant, as the circuit court needed to determine only
whether the plea was voluntary, knowing, and intelligent. As such, the record, as
well as relevant legal concepts, refuted this assertion.
Fifth, Martin asserted that his trial counsel had failed to investigate the
plea agreements of Gosnell and Jackson, which would have shown that “they had
received better deals” than Martin. Instead, Martin claimed, trial counsel led him
to believe that Gosnell and Jackson were serving 85% sentences,4 when they were
actually serving 20% sentences. However, the record indicated that Martin had
3
Motions in limine seek exclusion of evidence from being presenting during trial.
4
Sentences in which the defendants would serve 85% before being eligible for parole.
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admitted to a more serious crime – attempted murder of a police officer; therefore,
knowing his co-defendants’ plea agreements, which contained charges regarding
only the robbery, would not have been useful for comparison. Further, Martin
failed to assert how additional knowledge of his co-defendants’ plea agreements
would have affected his willingness to take his own plea. Martin’s decision to
plead guilty was independent from the co-defendants,’ and the Commonwealth was
not required to offer similar penalties to each defendant. Again, the record refuted
Martin’s assertion.
Sixth, Martin claimed his trial counsel was ineffective because she
misinformed him that Gosnell and Jackson were prepared to testify against him;
however, Martin failed to make that allegation with requisite particularity. While
Gosnell’s affidavit stated he was willing to testify in support of Martin in 2022, it
did not state that he was unwilling to testify against Martin in 2014. Further, the
circuit court noted that the Commonwealth could have called Gosnell or Jackson to
testify at trial regardless of whether they had prepared to do so because the plea
agreements extended the opportunity to testify against one another in exchange for
shorter sentences. Therefore, the record disproved that telling Martin that his co-
defendants could testify against him was “misinformation.” As the circuit court
stated, it likely would have been ineffective if Martin’s trial counsel had not told
him Gosnell and Jackson were prepared to testify against him.
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Seventh, Martin asserted that his trial counsel failed to have Martin
psychologically evaluated, despite his history of mental and emotional issues.
However, again, Martin failed to adequately articulate the mental or emotional
issues he had, their relevance to the case, and what an expert could have testified to
regarding the same. Such assertion, therefore, lacked the requisite specificity
RCr 11.42 requires. See Roach, 384 S.W.3d at 140.
Eighth, and finally, Martin claimed his trial counsel was ineffective
for refusing to step aside as counsel when Martin’s family told her that they wished
to hire private counsel. However, Martin failed to present any specific facts to
support that claim: he provided no evidence that he had hired private counsel, and
no counsel entered an appearance on his behalf. A mere statement that the family
wished to hire private counsel was not sufficient grounds for a public defender to
move to withdraw. Again, the assertion was disproved by the record.
The circuit court carefully reviewed each of Martin’s allegations and
properly dismissed each based on the face of the record. See Sanborn, 975 S.W.2d
at 909. As such, an evidentiary hearing was not required. See Bowling, 981
S.W.2d at 550-51.
B. Post-Conviction Counsel
Next, Martin argues that his post-conviction counsel was ineffective
for failing to supplement his RCr 11.42 motion. Specifically, Martin claims his
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post-conviction counsel should have raised three new claims for his original
RCr 11.42 motion: that trial counsel failed to inform him of (1) the lesser-included
offense of attempted robbery, (2) the provisions of double jeopardy, and (3) the
elements of attempted murder.
Although Martin introduces the claim against his post-conviction
counsel, his brief largely focuses on those three new claims for ineffective
assistance of his trial counsel. However, the merits of the claims against his trial
counsel are not properly before this Court because Martin did not raise them before
the circuit court. See Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999)
(“[a] new theory of error cannot be raised for the first time on appeal.”). Instead,
the sole issue is whether there is a valid claim that Martin’s post-conviction
counsel was ineffective. Appellant concedes that this issue was not preserved, and
requests palpable error review.
First, Martin acknowledges that Kentucky Courts do not recognize
ineffective assistance of post-conviction counsel as a valid claim. Therefore, he
asks this Court to implement federal law, which allows claimants to pursue such
claims “as a basis for cause and prejudice for the failure to preserve issues of
ineffective assistance of counsel.”
However, our Supreme Court previously addressed a similar issue in
Bowling, 981 S.W.2d 545. There, it clarified that
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[t]he purpose of an RCr 11.42 proceeding is to review a
judgment and sentence for constitutional validity of the
proceedings prior to judgment or in the sentence and
judgment itself. The rule simply provides for a collateral
attack on the sentence. RCr 11.42(1). Assuming that this
issue [regarding effectiveness of post-conviction counsel]
could be considered under RCr 11.42, Appellant concedes
that it was not presented to the trial court for consideration.
In the absence of palpable error affecting Appellant’s
rights, this issue is not reviewable on appeal. Todd v.
Commonwealth, Ky., 716 S.W.2d 242 (1986).
Notwithstanding the procedural deficiency, Appellant’s
argument is without merit. In Coleman v. Thompson, 501
U.S. 722, 752, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640
(1991), the United States Supreme Court held that “[t]here
is no constitutional right to an attorney in state post-
conviction proceedings. Consequently, a petitioner cannot
claim constitutionally ineffective assistance of counsel in
such proceedings.” (citations omitted); See also Murray
v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d
1 (1989).
Bowling, 981 S.W.2d at 552.
As an intermediate appellate court, we are bound by our Supreme
Court’s decision in Bowling. See Kentucky Supreme Court Rule 1.030(8)(a) (“The
Court of Appeals is bound by and shall follow applicable precedents established in
the opinions of the Supreme Court and its predecessor court.”). Therefore, we, too,
must find that Martin does not have a valid claim regarding his post-conviction
counsel.
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IV. CONCLUSION
The Jefferson Circuit Court did not err when it denied Martin’s
RCr 11.42 motion without a hearing. Additionally, Martin’s claim that post-
conviction counsel was ineffective is without merit. As such, the order of the
Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Diontre Martin, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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