NOT TO BE PUBLISHED

OPINION

TAYLOR, Judge.

Larry Lee Hughes brings this appeal from a January 11, 2012, Order of the McCracken Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm in part, vacate in part, and remand.

On July 27, 2005, Hughes was arrested for various drug related crimes following an undercover operation conducted by the McCracken County Sheriff's Department. Following his arrest, a McCracken County Grand Jury indicted Hughes upon sundry offenses. A jury trial followed, and Hughes was found guilty of first-degree trafficking in a controlled substance, possession of drug paraphernalia, and first-degree persistent felony offender. By judgment entered November 14, 2006, Hughes was sentenced to a total of twenty-years' imprisonment. Hughes' conviction and sentence of imprisonment was affirmed on direct appeal by the Kentucky Supreme Court in Appeal No. 2006-SC-000746-MR.

In 2009, Hughes filed a pro se RCr 11.42 motion alleging various grounds for ineffective assistance of trial counsel. Counsel was appointed and filed a supplement to Hughes' pro se RCr 11.42 motion. By Order entered January 11, 2012, the circuit court denied the RCr 11.42 motion without an evidentiary hearing. This appeal follows.

Hughes contends that the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. Hughes claims that his trial counsel rendered ineffective assistance, thus entitling him to relief under RCr 11.42.

Upon review of a trial court's denial of an RCr 11.42 motion without an evidentiary hearing, we must initially determine whether there exists a "material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001). If a material issue of fact exists that cannot be conclusively resolved upon the face of the record, the circuit court must grant the motion for an evidentiary hearing. Id. In order to prevail upon a claim for ineffective assistance of counsel, it must be demonstrated that (1) trial counsel's performance was so deficient it fell outside the range of professionally competent assistance, and (2) there exists a reasonable probability that the outcome would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).

In this case, Hughes primarily argues that trial counsel was ineffective for failing to conduct a proper pretrial investigation and for failing to adequately communicate a plea bargain offer from the Commonwealth. We address each argument seriatim.

Hughes contends that trial counsel failed to conduct a proper pretrial investigation as counsel did not interview potential witnesses who would have confirmed Hughes' alibi defense. At trial, Hughes claimed he was not present at his home the night the crimes occurred and, thus, could not have participated in the crimes. Hughes believes that trial counsel should have called Hughes' friend, Mike Stewart, as a witness. Hughes alleges that Stewart would have testified that Hughes was at the Stewarts' home the night the crimes occurred at Hughes' home. Hughes further asserts that two neighbors, Anthony McGee and his wife, would have also testified that Hughes was absent from his home the night the crimes occurred. Hughes claims that the testimony of these three witnesses would have discredited the testimony of the prosecution's witnesses that placed Hughes at home on the night the crimes occurred there.

A review of the record reveals that Hughes' trial counsel did not call Mike Stewart to testify but did call Mike Stewart's wife, Theresa Stewart. Theresa testified that Hughes was at the Stewarts' home night the crimes occurred at Hughes' home. Thus, Mike Stewart's testimony would have been the same as Theresa's testimony. And, the McGees' proposed testimony would have been for the same purpose — to demonstrate that Hughes was not home when the crimes occurred there.

As Hughes and Theresa Stewart both testified that Hughes was not home when the crimes occurred, calling other witnesses to testify to the same would have been merely cumulative, at best. See Torrence v. Com., 269 S.W.3d 842 (Ky. 2008). Thus, trial counsel was not deficient for failing to call these three witnesses to present cumulative testimony. Id. Given the other evidence against Hughes presented by the Commonwealth, we also cannot conclude that even if trial counsel were deficient on this issue such deficiency was prejudicial. Simply put, the outcome of the trial would not have been different if these witnesses had been called to testify. Thus, we believe Hughes' contention to be without merit.

Hughes next asserts that trial counsel did not adequately communicate to him the Commonwealth's plea offer of a fifteen-year sentence in exchange for his plea of guilty. In support thereof, Hughes relies upon the Commonwealth's Bill of Particulars and Compliance with Discovery Requests (Bill of Particulars) filed on December 7, 2005. For the reasons hereafter articulated, we conclude that Hughes is entitled to an evidentiary hearing upon this issue.

A review of the record reveals that the Commonwealth did file a Bill of Particulars on December 7, 2005, which reads in relevant part:

The Commonwealth's offer is silent regarding whether the fifteen-year sentence on Count 8 (the persistent felony offender charge) was to run concurrently or consecutively with Hughes' sentence offer on Counts, 1, 2, and 3.

As recently articulated by the United States Supreme Court, defense counsel in a criminal case has a "duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, 132 S.Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012). And, the failure of defense counsel to communicate such offers to the defendant may render counsel's assistance ineffective. Id.

In this case, we are unable to determine upon the face of the record whether a "formal offer" from the Commonwealth existed and whether such offer was for a total of fifteen-years' imprisonment. The Bill of Particulars specifically referenced that the Commonwealth's offer was "subject to the approval of law enforcement officers." From the face of the record, it is unclear whether approval of such officers was obtained, and if so, whether defense counsel communicated the offer to Hughes. As we are unable to conclusively resolve various factual issues upon the face of the record, we conclude that Hughes is entitled to an evidentiary hearing to determine whether the Commonwealth made a formal offer, whether the offer was for a total sentence of fifteen-years' imprisonment, and whether defense counsel communicated the offer to Hughes. Thus, we vacate the trial court's Order of January 11, 2012, denying Hughes' RCr 11.42 motion without an evidentiary hearing. Upon remand, the circuit court shall conduct an evidentiary hearing in accordance with this Opinion.

For the foregoing reasons, the Order of the McCracken Circuit Court is affirmed in part, vacated in part, and remanded to the circuit court for proceedings consistent with this opinion.

ALL CONCUR.