Not to be Published
OPINION
TAYLOR, CHIEF JUDGE.
Troy D. Harris brings this pro se appeal from an April 12, 2010, Order of the Kenton Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
Appellant was indicted by a Kenton County Grand Jury upon the offense of assault in the first degree and with being a persistent felony offender (PFO) in the second degree.1 The indictment stemmed from a particularly gruesome incident wherein appellant impaled his girlfriend (victim) with a broom. Appellant forced a broom handle through the victim's blue jeans, thereby penetrating her vagina. The broom handle was thrust some two feet into the victim's abdomen resulting in serious injuries.
Appellant was subsequently indicted, tried by jury, and convicted upon all charges. He was sentenced to a total of twenty-four-years' imprisonment. Appellant pursued a direct appeal to the Kentucky Supreme Court, and the Supreme Court affirmed appellant's conviction by opinion in 2008-SC-000099-MR rendered April 23, 2009.
On December 7, 2009, appellant filed a pro se RCr 11.42 motion to alter, amend, or vacate his sentence of imprisonment. By order entered April 12, 2010, the trial court denied appellant's motion without a hearing. This appeal follows.
Appellant contends the trial court erred by denying his RCr 11.42 motion without an evidentiary hearing. Appellant asserts that trial counsel rendered ineffective assistance; thus, his judgment of conviction should be vacated.
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 could not be conclusively resolved upon the face of the record, the circuit court must grant appellant's motion for an evidentiary hearing. Id. In order to prevail upon a claim for ineffective assistance of counsel, appellant must demonstrate 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 if not for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).
Appellant initially contends that his trial counsel was ineffective for failing to consult with him on trial strategy and for failing to offer the defense that the impaling of the victim was accidental. Appellant maintains that impaling the victim with a broom handle was an "accident" rather than an intentional act. Appellant specifically recounts the events as follows:
(8) The confrontation that resulted to the injuries of the victim, occurred on September 14, 2006. When the victim arrived at the movant's residence at around 6:00 a.m., and the victim was intoxicated and also under the influence of drugs.
At that time the victim was locked out of the residence by the victim's boyfriend, Troy D. Harris.
. . . .
At that time the victim returned to the front of the residence and the movant finally let the victim into the residence. [sic] However, once the victim was in side [sic] of the residence. The victim and movant exchanged several words about the victim's whereabouts, and a few minutes later. [sic] The victim and the movant decided to go into different bedrooms, so they can be separate from each other for a while.
. . . .
After the movant had unlocked the front door of the residence. [sic] The movant went into the bedroom were [sic] the victim was sleeping, so that the movant could explain to victim that she needed to relocated [sic] to their bedroom because the movant's cousin can [sic] use the bedroom when she arrives back at the residence.
However, the victim was to [sic] intoxicated to respond back the the [sic] movant's request to get up and go back to their bedroom. Therefore, the movant decided to help the victim out of bed and to take the victim back to their bedroom.
However, during the process of carrying the victim back to their bedroom. [sic] The movant had loss [sic] his grip on the victim and the victim fell into the hardwood flooring. Where the victim landed on her low back and buttocks. [sic] While the victim laid [sic] on the floor, the victim began to yell at the movant about being dropped on the hardwood floor.
. . . .
Therefore, since the movant could not make the victim understand what was going on. [sic] The movant decided to leave the room and on his way back to his bedroom. [sic] The movant noticed the broom was still in the hallway from the events earlier. At that time the movant retrieved the broom that was leaning against the wall in the hallway, so that the movant could return the broom back to the kitchen.
. . . .
At that time the movant requested the victim to get up off the floor and go into the movant and the victim's bedroom and go to sleep in there, so that the movant's cousin could use the bedroom when she arrived home, but if the victim chose not to get up off the floor and go to their bedroom, then the movant would just push the victim into the adjoining bedroom like a shuffle board using the broom he was holding on too [sic] ....
However, at that time the victim refused to get up off the floor, therefore, the movant took the broom-handle and placed it on her leg and try [sic] to push the victim across the recently waxed hardwood surface, figuring the the [sic] victim would slide into the adjoining bedroom. However, the next thin [sic] the movant heard was the victim screaming and yelling.
At the time the movant pulled the broom back and dropped the broom and responded to the victim's aid. At that time the victim was complaining about the pain she was in, therefore the movant lifted her off the floor and noticed blood on her pants.
Once the movant realize that the broom-handle had pierced the victim's pants and penetrated the victim's vagina, << accidentally >> the movant freaked-out. . . .
Appellant's Brief at 4-9.
Even if trial counsel erred by not offering appellant's accident theory as a defense during trial, we cannot say there exists a reasonable probability that the outcome of appellant's trial would have been different. The victim testified at trial that appellant impaled her with the broom and also described how the impaling occurred. Moreover, in light of the victim's injuries, it is unreasonable that a jury would believe that the impaling was a mere accident. In short, appellant's version of events is simply incredulous. Thus, we do not believe the outcome of the trial would have been different if the "accident" theory had been presented.
Appellant also contends that his trial counsel was ineffective for failing "to investigate the case" and "to investigate witnesses." However, appellant does not identify the witnesses or the substance of such an investigation.2 The mere allegation that witnesses were available to testify is not sufficient grounds to assert a claim for ineffective assistance of counsel. Hodge v. Com., 116 S.W.3d 463 (Ky. 2003) overruled on other grounds by Leonard v. Com., 279 S.W.3d 151 (Ky. 2009). Furthermore, an evidentiary hearing under RCr 11.42 does not "serve the function of a discovery deposition." Sanborn v. Com., 975 S.W.2d 905, 909 (Ky. 1998) overruled on other grounds by Leonard v. Com., 279 S.W.3d 151 (Ky. 2009). Simply put, unsupported and conclusory allegations will not justify an evidentiary hearing. Id. As such, we view the above allegation to be without merit.
Appellant next alleges that trial counsel rendered ineffective assistance by not allowing appellant to testify at trial. The record does reveal a disagreement before trial between appellant and trial counsel regarding how to proceed during trial in relation to appellant testifying and the defense's theory of the case. However, the record is silent as to whether an agreement was ultimately reached by the parties. It is clear that trial counsel did not call appellant as a witness, but it is unclear as to whether appellant acquiesced in such decision. In his RCr 11.42 motion, appellant asserts that trial counsel simply ignored his stated desire to testify.
Every criminal defendant possesses a constitutional right to testify at trial. However, the proper remedy for violation of such a constitutional right is a direct appeal of the judgment of conviction. In this RCr 11.42 motion, appellant alleges that trial counsel was ineffective for failing to allow appellant to testify at trial. And, the Commonwealth agrees that this allegation is not refuted upon the face of the record. However, even if the allegation were true and trial counsel rendered deficient performance by not calling appellant to testify at trial, any resulting deficiency certainly had no prejudicial impact. To be entitled to an evidentiary hearing, defendant's allegation, if true, must warrant relief under RCr 11.42. Fraser v. Com., 59 S.W.3d 448 (Ky. 2001). Considering appellant's purported testimony as to the accidental cause of the victim's injuries, it is reasonably certain that a jury would not have believed his version of events, and thus, the verdict would have remained unchanged. Consequently, appellant cannot demonstrate prejudice and is not entitled to an evidentiary hearing upon this issue. See id. Finally, appellant asserts that trial counsel was ineffective for failing to properly impeach the testimony of the victim. Appellant maintains that the victim's recollection was inaccurate as she was under the influence of drugs and alcohol. In this case, the decision of trial counsel not to impeach the victim's testimony amounts to sound trial strategy. Moreover, regardless of any inaccuracy in the victim's testimony, it was undisputed that appellant impaled the victim with a broom handle and that the victim suffered severe injuries. Thus, we reject appellant's above contention.
Thus, we conclude that the trial court properly denied appellant's RCr 11.42 motion without an evidentiary hearing.
For the foregoing reasons, the Order of the Kenton Circuit Court is affirmed.
ALL CONCUR.
