NOT TO BE PUBLISHED
OPINION
MAZE, Judge.
Stella Collins (Collins) appeals from an order of the Henry Circuit Court denying her motion to vacate, set aside, or correct her judgment of conviction pursuant to RCr1 11.42. She argues that she was entitled to a hearing on her allegations of ineffective assistance of counsel. However, we agree with the trial court that these allegations were conclusively refuted by the record. Hence, we affirm.
Collins was charged with the criminal abuse, between June 6 and June 24, 1991, and the subsequent murder, on June 24, 1991, of her twelve-year-old stepson, Otis Wayne Collins, Jr. (Wayne Jr.). The cause of death was determined to be traumatic asphyxia. At trial, the medical examiner noted a linear contusion on Wayne Jr.'s neck. Based upon this finding, he testified that Wayne Jr.'s death resulted from suffocation caused by placement of a linear object on his neck and exertion of pressure. In addition, the Commonwealth presented the testimony of Teresa Devore, a friend of Collins and her husband. She testified to witnessing a number of the acts of abuse, including the incident that led to Wayne Jr.'s death.
At the conclusion of the trial, the jury returned a verdict of guilty on the charges of intentional murder and first degree criminal abuse. On appeal, the Kentucky Supreme Court affirmed the conviction, but reversed and remanded due to errors in sentencing. Commonwealth v. Collins, 933 S.W.2d 811 (Ky. 1996). On remand, the jury sentenced Collins to life imprisonment on the murder conviction and ten years on the criminal abuse conviction. The Supreme Court affirmed that sentence on appeal. Collins v. Commonwealth, 973 S.W.2d 50(Ky. 1998).
In 2001, Collins filed a motion to set aside the conviction and sentence pursuant to RCr 11.42, alleging a number of grounds of ineffective assistance of counsel. The trial court appointed counsel for Collins. Counsel filed a supplemental motion raising additional issues, including that trial counsel was ineffective for failing to call an expert regarding a possible alternate cause of Wayne Jr.'s death. The matter then proceeded through an extended period of discovery, punctuated by several continuances and changes of counsel.
During this process, the trial court granted Collins's request for funds to obtain an expert supporting her allegations. Collins retained the services of Dr. N. K. Burki to review the medical records of Wayne Jr. Dr. Burki eventually filed a report expressing his opinion that Wayne, Jr. may have died from complications of Duchenne's Muscular Dystrophy. The disease weakens the large muscles around the hips and shoulders and progresses to other muscles, including the heart and lungs, and often leads to death by the mid to late teenage years. Dr. Burki stated that Wayne Jr.'s asphyxia may have been caused by the respiratory deterioration brought on by the disease.
In 2011, Collins's counsel filed a memorandum seeking an evidentiary hearing on two of the claims of ineffective assistance of counsel: (1) that trial counsel was ineffective for failing to obtain an expert witness supporting an alternate cause of Wayne Jr.'s death; and (2) that trial counsel was ineffective in failing to prepare and present mitigation evidence at the sentencing phase. The parties then introduced the medical and documentary evidence into the record, and the motion for an evidentiary hearing was submitted to the trial court.
On January 29, 2013, the trial court denied Collins's RCr 11.42 motion without a hearing. The trial court noted that, while Dr. Burki's opinion may have added another possible cause of Wayne Jr.'s asphyxia. He could not conclusively refute the medical evidence presented at trial showing that the cause of his death was strangulation. The court also noted that trial counsel actually solicited expert testimony regarding alternate causes of Wayne Jr.'s death and argued those possible causes to the jury. Based on these findings, the court found that Collins had failed to show that her trial counsel was deficient or that she had been prejudiced by her trial counsel's failure to retain an additional expert. The court also rejected Collins's claim that her trial counsel provided ineffective assistance during the sentencing phase. Collins requested and was granted the appointment of counsel on this appeal but the Department of Public Advocacy declined to represent her, stating that the appeal was not a proceeding that a reasonable person with adequate means would be willing to bring at her own expense. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967). KRS2 31.110(2)(c). This pro se appeal followed.
Collins raises a number of claims of ineffective assistance of counsel. However, her counsel abandoned most of these arguments while the motion was before the trial court. This Court will not consider a claim of error unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory. Shelton v. Commonwealth, 992 S.W.2d 849, 851 (Ky. App. 1998). Consequently, we may only consider the claims of ineffective assistance of counsel which Collins actually presented to the trial court.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that her counsel's performance was deficient and that, but for the deficiency, the outcome of the trial 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 trial court must conduct a hearing on an RCr 11.42 motion where the allegations raise material issues which cannot be conclusively resolved, i.e., conclusively proved or disproved, by examination of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001), citing Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky.1993), and Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Id. at 452-53. Where the trial court has denied an RCr 11.42 motion without a hearing, this Court's review is confined to whether the motion on its face states 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 (Ky. 2000), citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Collins primarily argues that her trial counsel was ineffective in failing to retain an expert on Duchenne's Syndrome to support an alternative cause of Wayne Jr.'s death. However, it is not necessary in all cases for trial counsel to hire a rebuttal expert to avoid being deemed ineffective. Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007), citing Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky. 2005). Although Dr. Burki expressed an opinion that Wayne Jr.'s asphyxia may have been the result of respiratory deterioration due to progression of the disease, he could not conclusively rebut the medical examiner's testimony. Moreover, the trial court noted that Collins's trial counsel presented this theory to the jury and cross-examined the medical examiner on this matter. Dr. Burki also offered no explanation to address the cause of the marks on Wayne Jr.'s neck. In light of all the evidence presented, we agree with the trial court that Collins failed to show a reasonable probability that the result of the trial would have been different if trial counsel had retained an expert witness.
Collins also argues that her trial counsel was ineffective for failing to present additional mitigation witnesses during the penalty phase. In particular, she contends that counsel should have called the child's father, Otis Wayne Collins, Sr., to testify about her relationship with Wayne Jr. The trial court pointed out that, at the time of Collins's resentencing, Collins Sr. was appealing his own conviction arising from these events. There is nothing in the record to indicate that he would have been available to testify on Collins's behalf. In addition, several witnesses appeared for Collins to testify about her care for and relationship with Wayne Jr. We agree with the trial court that Collins has failed to show either that her trial counsel's performance was deficient in these matters or that his actions affected the outcome of the sentencing.
Accordingly, the order of the Henry Circuit Court is affirmed.
ALL CONCUR.
