NOT TO BE PUBLISHED

OPINION

WINE, Judge.

On September 21, 2006, a Boyd County grand jury indicted Timothy Scott Simpson for the offenses of murder and tampering with physical evidence. On February 14, 2007, a jury convicted Simpson of both offenses. The jury sentenced Simpson to life imprisonment for the murder and five years for tampering with physical evidence, to run consecutively. The trial court imposed the jury's sentence.

On direct appeal, the Kentucky Supreme Court affirmed the conviction, but directed that the sentences run concurrently as required by KRS 532.110(1)(c). In pertinent part, the Supreme Court found that the trial prosecutor made improper remarks during closing argument about two cell-mates of Simpson who were not called as witnesses at trial. However, the Court noted that the error was not preserved and did not rise to the level of palpable error. Timothy Lee Simpson v. Commonwealth, 2009 WL 1830803 (Ky. 2009),2 No. 2007-SC-000253-MR.

Thereafter, Simpson filed a motion to alter, amend or vacate his conviction and sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He argued that his trial counsel provided ineffective assistance by failing to object to the prosecutor's improper comments, by misadvising him concerning his right to testify, and by failing to explore issues related to his mental health. On April 6, 2010, the trial court conducted an evidentiary hearing on the motion. Simpson's trial counsel, Michael J. Curtis, testified at the hearing. Simpson also testified on his own behalf, and he called his mother, Linda Simpson, to testify. Following the hearing, the trial court ordered the release of Simpson's medical records.

On July 6, 2010, the trial court entered an order denying the motion. The trial court found that counsel's decision not to raise Simpson's sanity or competency as a defense was a reasonable trial strategy. The court further noted that these defenses were not an option considering that Simpson had denied any involvement in the murder. The court also found that Simpson had been advised of his right to testify by his counsel and directly by the court. Finally, the court concluded that Simpson was not prejudiced by his counsel's failure to object to the prosecutor's improper comments based on the "overwhelming" evidence of guilt. Simpson now appeals to this Court.

In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that, but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). 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, 104 S. Ct. at 2065. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690, 104 S. Ct. at 2066.

The burden is on the movant to overcome a strong presumption that counsel's performance was constitutionally sufficient. Id. at 689, 104 S. Ct. at 2065; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). When an evidentiary hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to make findings on the material issues of fact, which we review under a clearly erroneous standard. Kentucky Rules of Civil Procedure (CR) 52.01; Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001).

Simpson primarily argues that his trial counsel failed to object to the improper statements by the Commonwealth during its closing argument. We recognize that the Supreme Court's review of this issue under palpable error standard on direct appeal does not preclude Simpson from raising an ineffective assistance claim in a subsequent RCr 11.42 proceeding. Leonard v. Commonwealth, 279 S.W.3d 151, 157 (Ky. 2009). A direct appeal allegation of palpable error is fundamentally a different claim than a collateral attack. Consequently, a claim of the latter may be maintained even after the former has been addressed on direct appeal, so long as they are actually different issues. Id. at 158, citing Martin v. Commonwealth, 207 S.W.3d 1, 4-5 (Ky. 2006).

But in the direct appeal of this case, the Supreme Court addressed the controlling issue in this case — whether Simpson was unfairly prejudiced by the prosecutor's statements. During his opening statement, the prosecutor stated that he intended to call William Easton, who would testify that Simpson had confessed in jail to the murder. The prosecutor further informed the jury that two other inmates would testify to Simpson's jailhouse confession. But while the Commonwealth did call Easton as a witness at trial, it never presented the testimony of the two other inmates.

However, the prosecutor referred to the other inmates in his closing statements, telling the jury that the other inmates would have included details which Easton could not have known unless Simpson had actually made the confession. Simpson's counsel objected to the statement on other grounds, but failed to note that the prosecutor referred to facts which were not in evidence. The Supreme Court concluded that the prosecutor's remarks were

In this case, we may assume that defense counsel's failure to object to the improper statements was deficient. Thus, we must turn to the second prong of the Strickland test — whether Simpson was prejudiced by his trial counsel's deficient performance. In measuring prejudice for purposes of ineffective assistance of counsel, the relevant inquiry is whether "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." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

On direct appeal, the Supreme Court concluded that the prosecutorial misconduct was not flagrant given the "overwhelming evidence" against Simpson. Thus, the Court concluded that the error was not palpable because there was no "probability of a different result or error so fundamental as to threaten [Appellant's] entitlement to due process of law." (Citations omitted). Given this finding, we must conclude that the Supreme Court considered and rejected the same issue which Simpson raises in his collateral attack of his conviction. Since the Supreme Court found on direct appeal that Simpson was not unfairly prejudiced by the prosecutor's improper comments, we cannot find that the result would have been different had his trial counsel objected to the comments for reasons different from those stated during the trial.

Simpson also argues that his trial counsel failed to explore defenses related to his mental state at the time of the shooting. Simpson contends that his trial counsel never talked to him about defenses based on his mental illness. Given the bizarre statements which Simpson made shortly after the shooting, his long history of mental health issues, and his mother's comments and reports to trial counsel, Simpson maintains that trial counsel should have secured an evaluation of Simpson to determine his sanity and competency to stand trial.

But prior to trial, Simpson told the trial court that his trial counsel had discussed the issue of competency with him and he expressly stated that he did not want to raise the issue. Trial counsel also testified that he did not believe that an insanity defense was appropriate because Simpson never admitted that he had killed the decedent. Without such an admission, counsel concluded that Simpson would not have been entitled to a jury instruction on lack of criminal responsibility. Finally, the trial court noted that Simpson had not identified any exculpatory evidence in the medical records produced for this proceeding.

Although Simpson takes issue with the trial court's findings, he does not point to any evidence of record which would compel a different conclusion. Therefore, the trial court's factual findings are not clearly erroneous. Considering these findings, Simpson has failed to show that his trial counsel had reasonable grounds to question his competency to stand trial, to request a competency evaluation, or to further investigate any defenses related to Simpson's mental health. Therefore, the trial court properly denied Simpson's motion for relief from his conviction pursuant to RCr 11.42.

Accordingly, the order of the Boyd Circuit Court denying Simpson's RCr 11.42 motion is affirmed.

All Concur.