FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA R. GOODWINE,
JUDGE ACTION NO. 11-CR-00631
FOR APPELLANT: John Cherry, Pro Se LaGrange, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan
D. Morrow Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE.
Cherry appeals from the Fayette Circuit Court order denying
his motion for Kentucky Rule of Criminal Procedure (RCr)
11.42 relief. We affirm.
was convicted of one count each of murder, first-degree
wanton endangerment, second-degree unlawful imprisonment,
carrying a concealed deadly weapon, third-degree trafficking
in a controlled substance, trafficking in marijuana (less
than eight ounces), and possession of a controlled substance
not in its original container. Cherry was sentenced to life
imprisonment. His conviction was upheld on direct appeal in
Cherry v. Commonwealth, 458 S.W.3d 787 (Ky. 2015).
On August 27, 2015, Cherry filed a verified motion for RCr
11.42 relief, alleging that he received ineffective
assistance of trial counsel. Cherry also requested an
evidentiary hearing. Following a supplemented motion (wherein
it was alleged that Cherry received ineffective assistance of
counsel at the appellate level as well) and the
Commonwealth's response, the Fayette Circuit Court,
without holding an evidentiary hearing, entered its order
denying Cherry's requested relief on February 28, 2017.
Cherry appeals from that order.
facts underlying the convictions are repeated from the
Kentucky Supreme Court's opinion on direct appeal,
Cherry testified that the events in this case arose while he
was in the midst of a multiple-day "bender" that
took place from Friday, March 18, 2011, to early Sunday,
March 20, 2011. He testified that he did not sleep from the
time he awoke on Friday morning until he was booked into jail
after his arrest Sunday morning and that he had used copious
amounts of drugs during this period.
As part of the bender, Cherry spent Saturday evening and
early Sunday morning ingesting a variety of intoxicating
substances with friends. He began the night with his friend,
Mike Maudlin, with whom he went to a bar in Lexington. At
around 2:00 a.m., another friend, Richie Perez, picked them
up from the bar and drove them to Maudlin's home.
Throughout the night, Cherry and his friends drank alcohol,
smoked marijuana, used cocaine, and took prescription pills,
Shortly after arriving at Maudlin's, Cherry called his
cocaine dealer, who lived in a Hedgewood Court apartment in
the Woodhill subdivision. Cherry tried to get Maudlin or
Maudlin's roommate to drive him to Hedgewood Court, but
both declined. And Maudlin took a Klonopin and fell asleep
shortly thereafter. Cherry then called for a taxi from Yellow
Cab of Lexington. Amine Lemghaili was dispatched and arrived
at Maudlin's residence to pick up Cherry at 3:09 a.m.
At 3:19 a.m., Lemghaili's taxi pulled into the Hedgewood
Court parking lot. Due to inconsistencies between
Cherry's statements to police and testimony at trial,
what happened next is unclear, but it is undisputed that
Cherry killed Lemghaili by shooting him in the back of the
head with a .38-caliber revolver that belonged to Maudlin.
Around 3:20 a.m., a resident of Hedgewood Court heard a
gunshot followed by an engine accelerating. Surveillance
footage showed Cherry walking from Hedgewood Court across
some basketball courts toward Osage Court at 3:21 a.m.
Cherry's flight from the scene first led him to a
friend's house nearby. The friend was unhappy with Cherry
for coming to his house and knocking on his door at that
hour, and Cherry was forced to leave shortly after arriving.
At 3:40 a.m., Cherry called Perez, who also lived nearby on
Osage Court, but Perez did not answer. Sometime after making
this call, Cherry met up with another friend, "AK."
Because Cherry could not get in touch with Perez, he asked AK
to walk to Perez's house and tell Perez to come ...