NOT TO BE PUBLISHED

OPINION

TAYLOR, Judge.

Paul Smith brings this pro se appeal from a March 2, 2012, Order of the Whitley Circuit Court denying a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.

Smith was indicted upon the offenses of capital murder and robbery. Smith and his nephew, Travis Wagers, allegedly murdered the ex-husband of Smith's wife. Wagers entered a plea agreement with the Commonwealth and pleaded guilty to murder and robbery. Wagers received a total sentence of twenty-five years' imprisonment and agreed to testify against Smith. After Smith's indictment, a jury trial ensued. Smith was ultimately convicted of complicity to commit murder but acquitted of robbery. By final judgment, the circuit court sentenced Smith to fifty-years' imprisonment. His conviction was affirmed on direct appeal by the Kentucky Supreme Court in Smith v. Commonwealth, Appeal No. 2005-SC-000840-MR.

Smith then filed the instant RCr 11.42 motion alleging ineffective assistance of trial counsel. By order entered March 2, 2012, the circuit court denied Smith's RCr 11.42 motion without an evidentiary hearing. This appeal follows.

Smith contends that the circuit court erroneously denied his RCr 11.42 motion without an evidentiary hearing. To prevail upon a claim for ineffective assistance of trial counsel, appellant must demonstrate that counsel's performance was deficient and that such deficient performance resulted in prejudicial error. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). In this context, an error is prejudicial if there exists a reasonable probability that the outcome of the proceedings would have been different if not for counsel's deficient performance. Id. And, an evidentiary hearing is only required where movant's allegations cannot be resolved upon the face of the record. Fraser v. Com., 59 S.W.3d 448 (Ky. 2001).

In particular, Smith initially argues that trial counsel was ineffective for calling as a defense witness, Doyle Fox. During trial, Fox testified that he and Wagers were incarcerated together and that Wagers admitted to actually firing the gun that killed the victim. Fox also stated that Wagers said Smith was involved in and planned the murder of the victim. Smith contends that Wagers' testimony that Smith planned the murder was the sole evidence supporting his conviction upon complicity to commit murder. Smith believes if trial counsel had not called Fox to testify he would have been acquitted of all charges.

At trial, Wagers testified that Smith planned the murder and recruited Wagers to participate. Most importantly, Wagers further stated that it was Smith who shot and killed the victim. As the Commonwealth was seeking the death penalty against Smith, Fox's testimony was pivotal to Smith's defense as it directly implicated Wagers in the murder and specifically identified Wagers as the shooter. Thus, Fox's testimony was instrumental in Smith avoiding the death penalty sentence. Considering the whole, we are unable to conclude that trial counsel was deficient for calling Fox to testify. In fact, Fox's testimony may have saved Smith from the death penalty.

Smith also argues that trial counsel was deficient for preventing Smith from testifying on his own behalf at trial. Smith asserts that he repeatedly expressed to trial counsel his desire to testify and that he never waived such right. Smith specifically asserts that he would have testified to a different version of events than that presented by the prosecution. According to Smith's affidavit, he would have testified that Wagers killed the victim without his assistance and that he only learned of the murder after the fact.

Based upon the record, it is clear that trial counsel exercised sound trial strategy by advising Smith not to testify. In his affidavit, Smith acknowledged that trial counsel's decision not to call Smith as a witness was trial strategy. Smith was facing the death penalty, and trial counsel was attempting to prove that Wagers, rather than Smith, was the triggerman. Smith's trial counsel was undoubtedly attempting to save Smith from the death penalty. If Smith had testified, his testimony would have contradicted Fox's testimony and could have reasonably increased the likelihood of a murder/robbery conviction and, thus, imposition of the death penalty. Consequently, we reject Smith's contention that trial counsel was ineffective for advising Smith not to testify at trial.

Smith next contends that trial counsel was ineffective for failing to "present a trial strategy inclusive of a complicity defense." Smith's Brief at 14. In other words, Smith asserts that trial counsel did not adequately defend against the complicity to commit murder charge.

When challenging trial strategy, an appellant "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quotation omitted). And, even if appellant can overcome the strong presumption that trial counsel's strategy was sound he would still be required to satisfy the prejudice inquiry of Strickand; i.e., that there is a reasonable probability the outcome of the trial would have been different. Id.

In this case, Smith was indicted upon the offenses of capital murder and robbery. As Smith was facing the potential of receiving the death penalty, it could be considered sound strategy to vigorously defend the murder charge in order to avoid such penalty. To do so, trial counsel relied upon the testimony of Fox that Wagers actually shot the victim. However, Fox also testified that Smith was involved in and planned the murder. Considering that Smith faced the death penalty, it was reasonable trial strategy to call Fox as a witness and not to call Smith. Upon the whole, we cannot conclude trial counsel was deficient or that any prejudice resulted.

In sum, we conclude that the circuit court properly denied Smith's RCr 11.42 motion without an evidentiary hearing.

For the foregoing reasons, the Order of the Whitley Circuit Court is affirmed.

ALL CONCUR.