NOT TO BE PUBLISHED
OPINION
MAZE, Judge.
Appellant, Edward Lewis, appeals from the Fayette Circuit Court's dismissal of his claims pursuant to RCr1 11.42, asserted in an effort to vacate his 2013 conviction and sentence on two counts of robbery in the second degree. Lewis also appeals from the imposition of a filing fee for his RCr 11.42 motion. While we find no fault in the trial court's decision concerning Lewis's claims of ineffective assistance of counsel, the court erred in imposing a filing fee. Therefore, we affirm in part, reverse in part, and remand.
Background
The underlying facts of Lewis's case are as follows:
On March 8, 2011, Shawn Thomas was working at a Thornton's convenience store in Lexington, Kentucky, when Lewis approached the counter and stated "give me all the money." Lewis's right hand was located inside his coat pocket. Startled, Thomas stepped away from the counter. Thomas returned to the counter, at which time Lewis propped his hand, still inside his jacket pocket, up on the counter and again demanded money. Thomas testified that he believed Lewis to possess a gun and as a result was in fear for his life. Thomas gave Lewis the money from the register and Lewis left. Thomas then called the police who arrived at the store and began an investigation. While viewing the store's surveillance footage, several officers recognized Lewis as the robber, because they had encountered him earlier in the evening waiving down vehicles and attempting to obtain crack cocaine.
The following evening, Daniel Robinson, upon returning home from a convenience store, was shoved and robbed by Lewis. Robinson chased Lewis and demanded the return of the money that had been stolen from his pocket. After overcoming Lewis, Robinson and his cousin, Samuel Clark, restrained Lewis until the police arrived. Lewis was subsequently arrested, charged with robbery in the second degree and alcohol intoxication, and transported to the Fayette County Detention Center. Thereafter, while speaking with detectives, Lewis admitted to robbing the Thornton's store the evening before but stated that he did not have a gun while doing so.
Lewis was subsequently indicted for two counts of robbery in the second degree, alcohol intoxication, and being a persistent felony offender [PFO] in the first degree. The evidence presented at trial included the testimony of Thomas, Robinson, Clark, and several police officers. Additionally, the Thornton's surveillance video was played for the jury. Lewis offered no opposing evidence. Following the Commonwealth's case, Lewis moved for a directed verdict and argued that there was insufficient evidence to support a charge of second-degree robbery because there was no evidence that Lewis had used, or threatened to use, force during the Thornton's robbery. Lewis's motion was denied.
Lewis v. Commonwealth, 399 S.W.3d 795, 796 (Ky. App. 2013). The jury found Lewis guilty of both robberies and not guilty of the intoxication charge.
At the sentencing phase of Lewis's trial, the jury found Lewis guilty of being a PFO in the first degree. After recommending a sentence of five years' imprisonment on the first count of robbery and ten years on the second, the jury enhanced Lewis's sentence to ten and fifteen years, respectively, to run concurrently for a total of fifteen years' imprisonment. Lewis appealed his conviction and sentence directly to this Court, arguing that insufficient evidence existed to sustain the verdict. We affirmed Lewis's conviction. See Lewis, supra.
On May 20, 2013, Lewis filed a motion to vacate his conviction and sentence pursuant to RCr 11.42. In his motion, Lewis alleged that his trial counsel provided constitutionally deficient assistance by "failing to know the relevant law,"2 failing to interview "important witnesses," failing to assert a defense of intoxication, and failure to review the evidence of the case. Lewis further requested court-appointed counsel, an evidentiary hearing, and in forma pauperis status. The trial court denied the latter motion and required Lewis to pay a filing fee of $171.00 for his RCr 11.42 motion. Upon payment of this fee, the trial court appointed Lewis counsel from the Department of Public Advocacy.
More than a month later, Lewis's appointed counsel filed a Motion to Withdraw, stating that "this post-conviction proceeding is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense." The trial court granted the motion and Lewis proceeded pro se.
In a February 3, 2014 order overruling Lewis's motion to vacate and denying the request for an evidentiary hearing, the trial court found Lewis's several allegations of ineffective assistance to be "vague, ambiguous, [and] lack[ing] specificity[.]" The trial court also found that the trial record directly contradicted each of Lewis's allegations. Lewis now appeals from this order.
Standard of Review and the Strickland3 Standard
The primary issue upon review of the denial of an RCr 11.42 motion without a hearing is whether the motion on its face stated grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). A trial court's decision on this question and its findings regarding a movant's substantive claims of ineffective assistance are mixed questions of law and fact; hence, they are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). The reviewing court may set aside the trial court's fact determinations if they are clearly erroneous. Id., citing CR4 52.01.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. More specifically,
[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Id. at 687, S.Ct. at 2064. The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Id. at 688-89, S.Ct. at 2065. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690, S.Ct. at 2066. Overall, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 669, S.Ct. at 2055.
Secondly, to prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, S.Ct. at 2068. With this standard of review and well-established benchmark for assessing RCr 11.42 claims in mind, we proceed to Lewis's allegations of ineffective assistance.
Analysis
On appeal, Lewis primarily cites to trial counsel's alleged failure to assert a defense of intoxication at trial as evidence of counsel's ineffectiveness. Both before the trial court and on appeal, Lewis portrays this as his "only viable defense." However, the trial court correctly observed that the record renders this allegation of ineffectiveness patently unpersuasive.
The video record establishes that Lewis's trial counsel raised Lewis's intoxication during one or both robberies in his opening statement; cross-examined witnesses concerning Lewis's apparent intoxication; requested and received a jury instruction on the defense of intoxication on one count of robbery; requested but was denied the same instruction on the second count; objected to that denial; and raised the defense of intoxication during his closing argument. Given these facts, we would be hard-pressed to find a record which more "conclusively refuted" an allegation of ineffective assistance. Baze, 23 S.W.3d at 622. On this claim, Lewis fell well short of his legal burden, and an evidentiary hearing was not required.
Lewis next argues that his trial counsel rendered ineffective assistance by "failing to review the evidence of the case." Lewis also alleges that his trial counsel rendered ineffective assistance by failing to "interview important witnesses." However, these allegations of error also fell short of Lewis's burden.
RCr 11.42(2) requires that a movant's motion "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." "Conclusory allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Both in his initial motion and on appeal, Lewis was unable to identify specific instances of his counsel's supposed lack of familiarity with the facts and evidence of his case. Similarly, Lewis failed to identify the "important" witnesses counsel allegedly failed to interview, what information they could have provided, or how their testimony would have influenced the outcome of his trial. In the absence of this information, we conclude, as the trial court did, that Lewis's allegation of ineffective assistance on these grounds lacks the requisite specificity under RCr 11.42. Hence, that allegation fails, and a hearing was not required.
Lewis next argues that his trial counsel was ineffective in failing to raise issues and assert defenses related to a photo array police conducted during which one witness initially identified someone other than Lewis as the culprit in one of the robberies. However, Lewis failed to raise this allegation of ineffective assistance before the trial court. Therefore, it is not preserved for appellate review, and we decline to review it for the first time on appeal. See Bowling v. Commonwealth, 80 S.W.3d 405, 419 (Ky. 2002).
Finally, Lewis appeals the trial court's decision to overrule his motion to proceed in forma pauperis and to impose the $171.00 filing fee on Lewis's RCr 11.42 motion. Lewis argues that the Kentucky Rules of Civil Procedure did not permit the trial court to impose such a filing fee. The Commonwealth notably agrees with Lewis on this issue, as do we.
CR 3.02 provides, in pertinent part,
(1) The filing fees for a civil case in Circuit Court (including original actions of administrative agencies, special districts or boards) shall be paid to the circuit clerk at the time the case is filed and shall be $115.00, except as provided below:
(a) There shall be no filing fees for proceedings for a writ of habeas corpus, proceedings under RCr 11.42, and mental health proceedings under KRS Chapters 202A, 202B and 387.
CR 3.02(1)(a). The clear language of this rule prohibited the trial court from imposing a filing fee on Lewis's RCr 11.42 motion.
In overruling Lewis's motion to proceed in forma pauperis, the trial court found that Lewis was not indigent because Lewis routinely deposited funds into his inmate account and his account had an average monthly balance of more than $350.00. While we cannot fault the trial court's finding as to Lewis's indigency, the unequivocal language of CR 3.02(1) renders that finding irrelevant. Imposition of the filing fee constituted error, and it requires remand.
Conclusion
On the substantive issue of Lewis's claims under RCr 11.42, the trial court was correct in concluding that those claims lacked legal merit and did not warrant an evidentiary hearing. However, the trial court erroneously imposed a filing fee for Lewis's motion. Hence, we affirm in part, we reverse in part, and we remand to the Fayette Circuit Court for entry of an appropriate order refunding Lewis the sum of $171.00.
ALL CONCUR.
