RICHARD L. CRABTREE APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
FROM CARTER CIRCUIT COURT HONORABLE REBECCA K. PHILLIPS,
JUDGE ACTION NO. 11-CR-00121-001
FOR APPELLANT: Euva D. Blandford Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken
W. Riggs Assistant Attorney General Frankfort, Kentucky
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
L. Crabtree appeals from an order of the Carter Circuit Court
denying his request for post-conviction relief pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.
a jury trial held in January 2012, Crabtree was convicted of
burglary in the first degree, in violation of Kentucky
Revised Statute (KRS) 511.020, and sentenced to twenty
years' imprisonment. His conviction was affirmed on
direct appeal to the Kentucky Supreme Court. Crabtree v.
Commonwealth, 2012-SC-000330-MR, 2014 WL 5410221 (Ky.
Oct. 23, 2014).
filed a pro se motion for RCr 11.42 relief on April
27, 2015. Counsel was appointed to represent him, and a
supplemental motion was filed on Crabtree's behalf. The
Carter Circuit Court held a hearing on the motion and entered
its order denying Crabtree's motion on November 16, 2016.
This appeal followed.
raises two allegations of ineffective assistance of counsel,
first by trial counsel and later by appellate counsel, for
failing to object to or raise as an issue, respectively,
certain representations made by counsel for the Commonwealth
during the penalty phase of the trial. When making his
closing argument, counsel for the Commonwealth first advised
the jury (correctly) that Crabtree, if convicted, would be
eligible for parole after serving twenty percent (20%) of his
sentence. The prosecutor then made inaccurate statements to
the jury regarding good time credits. Specifically, he stated
that good time credit earned was applied prior to parole
eligibility and then advised the jury that a two-year
sentence "isn't exactly what we consider two
trial counsel appeared as a witness for the RCr 11.42
hearing. When asked why she didn't object to the
prosecutor's statements during closing argument of the
penalty phase, trial counsel stated she had no direct memory
but speculated that she may have been distracted by Crabtree
because of his "propensity to talk during the
begin by reciting the relevant standards of review, namely:
The applicable standard of review in RCr 11.42
post-conviction actions is well-settled in the Commonwealth.
Generally, in order to establish a claim for ineffective
assistance of counsel, a movant must meet the requirements of
a two-prong test by proving that: 1) counsel's
performance was deficient and 2) the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311,
92 L.Ed.2d 724 (1986). In Fraser v. Commonwealth, 59
S.W.3d 448, 452 (Ky. 2001) (citations omitted), the Supreme
Court stated, "[a]fter the answer is filed, the trial
judge shall determine whether the allegations in the motion
can be resolved on the face of the record, in which event an
evidentiary hearing is not required. A hearing is required if
there is a material issue of fact that cannot be conclusively
resolved, i.e., conclusively proved or disproved, by
an examination of the record."
Clark v. Commonwealth, 476 S.W.3d 895, 897-98 (Ky.
appeal, our standard of review is enunciated in
Commonwealth v.McGorman, 489 ...