NOT TO BE PUBLISHED

OPINION

NICKELL, Judge.

Theron Cosby has appealed from the Henderson Circuit Court's denial of his pro se motion for post-conviction relief pursuant to RCr1 11.42 without first convening an evidentiary hearing. Following a careful review, we affirm.

Cosby was indicted by the Henderson County Grand Jury on charges of rape in the first degree2 and being a persistent felony offender in the second degree (PFO II)3 resulting from events occurring on September 3, 2007. The victim and Cosby had been dating for some time prior to that day. While in her car, Cosby indicated his desire to have intercourse with the victim. Disregarding her refusal, Cosby had intercourse with her, at one point twisting her arm. Following the sex act, the victim flagged down a passing police officer and told him she wanted Cosby out of her vehicle. She then went to a nearby hospital where a rape kit was collected and she made more statements to a different officer.

Cosby was initially represented by appointed counsel but he expressed his desire to retain private counsel. Trial of the matter was continued due to discovery issues. Just prior to the scheduled trial date, Cosby obtained counsel and the trial was continued again to permit counsel to prepare Cosby's defense. Following a brief period of further discovery, on April 1, 2008, Cosby entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a reduced charge of rape in the third degree4 and the PFO II charge was dismissed. Cosby was sentenced to five years' imprisonment with a mandatory term of five years' conditional discharge.

On July 11, 2011, Cosby filed a pro se RCr 11.42 motion seeking an order vacating his conviction and sentence, in which he alleged: 1) he was innocent of the crime charged; 2) his counsel was ineffective for failing to conduct an adequate pretrial investigation; 3) his counsel was ineffective in advising him to enter a guilty plea as the Commonwealth lacked sufficient evidence to garner a conviction on any charge; and, 4) the cumulative effect of the alleged errors required the requested relief. He further requested appointment of counsel and an evidentiary hearing. The trial court denied Cosby's motions on July 29, 2011, without convening the requested hearing. Cosby's subsequent motion to reconsider was likewise denied. These consolidated appeals followed.

Cosby now contends his counsel was ineffective in failing to conduct an adequate pretrial investigation and in advising him to enter a guilty plea "to a crime he was innocent of and he would have likely been acquitted of at trial." He argues even if his allegations taken separately do not justify the relief sought, the cumulative effect of counsel's alleged deficiencies mandates relief, and the trial court erred in not so finding. Finally, he contends the trial court erred in failing to convene an evidentiary hearing prior to issuing its ruling as his motion for RCr 11.42 relief raised issues of fact that could not be conclusively determined from the face of the record. The Commonwealth contends counsel's actions were based on tactical decisions rather than incompetence or ineffectiveness and further, that no hearing was required as Cosby's allegations were all refuted on the face of the record.

Prior to reviewing the arguments presented, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).

To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):

Bowling, at 411-12. Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might have been considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

On the issue of whether an evidentiary hearing is necessary, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling. Under Fraser, Cosby is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved on the face of the record. Further, we note that in determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452-53. We review the arguments of the parties with these standards in mind.

The crux of Cosby's allegation of trial counsel's ineffectiveness centers on the failure to interview the victim who recanted her statement to police that she had been raped. He states the victim, if given the opportunity, would have testified she had not, in fact, been raped and that she and Cosby were engaged in an ongoing sexual relationship prior to the date of the alleged rape. He further believes counsel should have interviewed a police officer who would have verified the victim's recantation of her allegation. Cosby argues had counsel conducted a full investigation including interviewing these potential witnesses, he would have recognized the Commonwealth did not have sufficient evidence to convict him at trial and would therefore not have advised Cosby to enter a guilty plea. Cosby states that had he been aware of the lack of evidence against him, he would not have entered a guilty plea, but instead would have insisted on going to trial.

A careful review of the record clearly refutes Cosby's allegations and supports a determination that counsel's decision not to interview the victim and the police officer were not the result of incompetency, but rather constituted a strategic decision. In his RCr 11.42 motion, Cosby advised the trial court his counsel had been contacted by the victim and told of Cosby's innocence. At multiple times in his motion, Cosby reiterates that his counsel was aware of the evidence of his "actual innocence" of the charged crime. In light of his own statements, we conclude the strong presumption of constitutionally effective counsel is bolstered as is the supposition that the decision not to interview a potentially unreliable or unbelievable witness was the result of sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Counsel was clearly aware of the facts of the case and we can discern no prejudice from the alleged failure to interview these two witnesses.

Cosby's assertion that counsel's ineffective assistance changed the outcome of the plea process is likewise without merit. A court must be highly deferential in reviewing defense counsel's performance and should avoid second-guessing counsel's actions based on hindsight. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). In assessing counsel's performance the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; Commonwealth v. Tamme, 83 S.W.3d 465, 470 (Ky. 2002); Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). "`A defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" Sanborn v. Commonwealth, 975 S.W.2d 905, 911 (Ky. 1998) (quoting McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997)). To establish actual prejudice, a movant must show reasonable probability the outcome of the proceeding would have been different or was rendered fundamentally unfair and unreliable. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Bowling, 80 S.W.3d at 411-12. When a movant has plead guilty, the Strickland standard of review is slightly modified, in that the movant must first show his counsel's performance was deficient, and then show "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986).

Having discerned no deficient performance, Cosby has clearly failed to satisfy the first prong of the Strickland test, and there is thus no basis for relief. Further, Cosby cannot show the actions of his counsel erroneously induced him to enter a guilty plea rather than proceeding to trial. Cosby was keenly aware of the allegations and the facts supporting the charges levied against him, which even a cursory review of the record reveals. In addition, a review of his plea colloquy reveals Cosby's plea was knowingly, voluntarily and intelligently entered. Contrary to Cosby's contentions, counsel's advice was plainly within the range of competence demanded in criminal matters, Hill, 474 U.S. at 56, 106 S.Ct. at 369, and cannot reasonably be said to have undermined the validity of Cosby's plea. Thus, we likewise cannot conclude the outcome of the plea process was destabilized by any of counsel's actions.

Finally, Cosby contends the trial court erred in ruling on his motion without first holding the requested evidentiary hearing. We disagree. A movant is not automatically entitled to an evidentiary hearing on an RCr 11.42 motion; there must be an issue of fact which cannot be determined on the face of the record. Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993). "Where the movant's allegations are refuted on the face of the record as a whole, no evidentiary hearing is required." Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citing Hopewell v. Commonwealth, 687 S.W.2d 153, 154 (Ky. App. 1985)). Our review indicates the trial court was correct in finding Cosby's allegations are clearly refuted on the face of the record, and thus the trial court did not err in refusing to hold an evidentiary hearing.

After examination of the record, the trial court correctly concluded RCr 11.42 relief in this case was unwarranted. For the reasons stated herein, the judgment of the Henderson Circuit Court denying post-conviction relief is affirmed.

ALL CONCUR.