NOT TO BE PUBLISHED
OPINION
DIXON, JUDGE.
James Kent Conn appeals an order of the Rowan Circuit Court denying his RCr 11.42 motion to set aside his conviction due to ineffective assistance of counsel. Finding no error, we affirm.
In August 2008, a Rowan Circuit Court jury convicted Appellant of intentional murder. Pursuant to the jury's recommendation, the trial court sentenced Appellant to forty-five years' imprisonment. On direct appeal, the Kentucky Supreme Court affirmed Appellant's conviction in an unpublished opinion. Conn v. Commonwealth, 2008-SC-000763-MR (Apr. 22, 2010). In that opinion, the Court set forth the following background facts:
On October 5, 2007, Appellant's son, James Brent Conn, was found dead in a South Florida motel room. Brent had traveled to Florida in the company of Tim Riggs where the two planned to obtain prescription pills from a local pain clinic. According to Riggs, Brent was alone drinking alcohol and ingesting pills when Riggs left for a bar with his girlfriend. The next morning, Brent could not be awakened. His cause of death was later determined as a drug overdose-a fact of which Appellant claimed he was unaware.
Appellant became convinced that Riggs was somehow to blame for his son's death. His suspicions were stoked when Brent's mother, Cynthia, relayed what she believed were Riggs' inconsistent accounts of what had happened. Over the ensuing weeks, Appellant began to make threats on Riggs' life to those around him. Riggs eventually learned that Appellant thought him responsible for Brent's death and that his life was in danger.
On the night of October 29, 2007, Appellant and his wife, Katherine, drove from their home in Pigeon Forge, Tennessee to Riggs' home in Rowan County, Kentucky. Once there, Appellant, armed with a handgun, exited his vehicle and confronted Riggs outside of his trailer. Katherine heard Appellant ask Riggs whether his name was `Tim' before, according to Appellant, Riggs charged at him with a knife and Appellant fired. Appellant returned to his vehicle and proceeded to drive back to his home in Pigeon Forge, disposing of the firearm in the process. Riggs was later found dead in his neighbor's yard with a fatal gunshot wound to his chest.
At trial, Appellant admitted that he drove to Riggs' home armed with a handgun and later left the scene without notifying police. He claimed, however, that he only intended to speak with Riggs regarding his son's death and only fired when he believed that his life was in danger from Riggs' attempted knife attack. Other witnesses could not corroborate Appellant's version of events.
At the conclusion of trial, the jury rejected Appellant's claim of self-defense and found him guilty of murder, fixing his punishment at forty-five years imprisonment.
In June 2011, Appellant filed a motion to vacate his conviction due to ineffective assistance of counsel. The trial court denied Appellant's motion for post-conviction relief without an evidentiary hearing, and this appeal followed.
In an RCr 11.42 proceeding, an evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense. Id. at 687, accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). The standard for reviewing counsel's performance is whether the alleged conduct fell outside the range of objectively reasonable behavior under prevailing professional norms. Id. at 688. To establish actual prejudice, a movant "must show that 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." Id. at 694.
We are mindful that "[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997). There is a strong presumption that counsel performed competently; consequently, it is the movant's burden to establish that the alleged error was not reasonable trial strategy. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L. Ed. 2d 305 (1986).
I. Extreme Emotional Disturbance
Appellant's first two arguments relate to counsel's alleged failure to present sufficient evidence that Appellant shot Riggs under extreme emotional disturbance ("EED").
The trial court denied Appellant's motion to depose out of state witnesses pursuant to RCr 7.10, and counsel did not attempt to secure the presence of the witnesses pursuant to KRS 421.250. On direct appeal, the Supreme Court stated as follows:
Prior to trial, Appellant filed a motion to take the deposition of several Florida residents: two police officers and a medical examiner in Broward County. In the accompanying affidavit of materiality, Appellant argued that the witnesses possessed knowledge that was relevant to his claim of extreme emotional disturbance and, generally, to both his and Riggs' state of mind.1 The Commonwealth opposed the motion and contended that the underlying Florida police and autopsy reports documenting Brent Conn's death were irrelevant to Riggs' death. The trial court, in a written order, denied Appellant's motion.
. . .
Having reviewed the affidavit, we do not believe that the trial court abused its discretion in denying Appellant's motion. The materiality of the officers' testimony to Appellant's claim of extreme emotional disturbance was unclear, as it does not appear that Appellant knew of the officers' findings prior to his shooting and killing Riggs. See McClellan v. Commonwealth, 715 S.W.2d 464, 469 (Ky. 1986) (`[A]n enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation . . . which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as
defendant believed them to be') (emphasis added). In the same vein, the affidavit did not indicate the subject and time of Appellant's conversation with the medical examiner which could have established its relevance to his claim. In any event, Appellant made absolutely no showing that the court-ordered depositions were necessary to prevent a failure of justice.2
Conn, slip op. at 3-5 (footnotes in original).
After the adverse ruling on the RCr 7.10 motion, Appellant contends counsel "gave up" on this issue rather than utilize KRS 421.250 to compel the attendance of the out of state witnesses in order to present an EED defense. Although Appellant relies on the RCr 7.10 affidavit to support his ineffective assistance of counsel argument, he fails to address the evidentiary shortcomings noted by the Supreme Court on direct appeal. Instead, Appellant rehashes the contents of the affidavit and asserts that counsel's failure to invoke KRS 421.250 deprived him of an EED defense. We disagree.
"The Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, codified in KRS 421.230 to KRS 421.270, establishes the means by which a defendant may secure the attendance of witnesses necessary for his defense." Stinnett v. Commonwealth, 364 S.W.3d 70, 83 (Ky. 2011). In Bowling v. Commonwealth, 80 S.W.3d 405, 418 (Ky. 2002), the Court explained:
KRS 421.250(1) requires that a motion be made with the trial court, in which a proceeding is pending, to certify that a witness is material and necessary to the proceeding. The party wishing to subpoena the witness has the burden of showing materiality. Dillingham v. Commonwealth, 995 S.W.2d 377, 382 (Ky. 1999). Once certification of materiality is obtained, it is presented to a court of record in which the witness is found. Id. The out-of-state court must then make an independent determination as to whether the witness is material and as to whether compelling the witness to attend would cause the witness undue hardship. Id. The ruling of the out-of-state court cannot be challenged in or reviewed by a court in the Commonwealth of Kentucky. Id.
When it denied Appellant's RCr 7.10 motion, the trial court concluded the witnesses were not material; consequently, it is questionable that the court would have certified the witnesses even if counsel had made a motion pursuant KRS 421.250. Furthermore, at the hearing on Appellant's RCr 7.10 motion, counsel explained that, upon contacting the Florida court, he learned it would be a "huge logistical problem" to get the Florida witnesses to Kentucky for the trial; however, counsel was advised that the witnesses were agreeable to being deposed in Florida. Given the procedural requirements of the statute, it is speculative whether counsel could have secured the attendance of the Florida witnesses under the Uniform Act. Id. As the Court concluded in Bowling, "there can be no ineffective assistance for failing to attempt to introduce inadmissible evidence or in failing to subpoena a witness whose attendance at trial cannot be secured." Id. Accordingly, Appellant was not entitled to RCr 11.42 relief on this issue.
Appellant next contends counsel was ineffective for failing to present sufficient evidence to warrant a jury instruction on EED. On direct appeal, the Supreme Court concluded that the evidence did not warrant an EED instruction. Conn, slip op. at 7. The Court stated:
A defendant cannot be convicted of intentional murder if he acted under the influence of extreme emotional disturbance. See generally KRS 507.020(a). This Court has defined EED as `a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.' McClellan, 715 S.W.2d at 468-69. It must be noted that:
[EED] is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.
Id. at 469.
In order to justify an instruction for EED, there must be some evidence suggesting an extreme emotional disturbance, `thereby affording room for reasonable doubt.' Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky. 2006) (quoting Gall v. Commonwealth, 607 S.W.2d 97, 109 (Ky. 1980)). Indeed, `[i]f the evidence, viewed in the light most favorable to the Commonwealth, is found sufficient, it is for the jury to find whether or not the defendant acted under extreme emotional disturbance.' Benjamin v. Commonwealth, 266 S.W.3d 775, 782 (Ky. 2006) (emphasis in original) (citing Greene, 197 S.W.3d at 82). The effect of such an instruction is that the absence of extreme emotional disturbance becomes a statutory element of the offense. Id. (citing Greene, 197 S.W.3d at 81); see also Holland v. Commonwealth, 114 S.W.3d 792, 805 n. 16 (Ky. 2003).
The trial court rightly concluded that the evidence did not support Appellant's tendered EED instruction. Appellant offered no evidence that he was under the influence of extreme emotional disturbance at any time. While it is true that he was distraught and perhaps angry over his son's death,3 there was no evidence that his judgment was so overcome with emotion that he acted uncontrollably in shooting and killing Riggs. Indeed, Appellant's own testimony undercut such an inference, as he claimed that he drove several hours to Riggs' trailer from Tennessee in order to simply `get answers' and that, once there, he fired in self-defense. In any event, Riggs' murder occurred twenty-four days after Brent's death and twenty-two days after Appellant first suspected that Riggs was to blame, representing, under these circumstances, a length of time likely dissipating the effect of any initial emotional disturbance and rendering unreasonable any claimed explanation or excuse. See Benjamin, 266 S.W.3d at 782-83 (the `provocation adequate to induce an EED analysis must be sudden and uninterrupted' and `there exists a `subsidiary inquiry' as to whether there intervened between the provocation and the homicide a cooling-off period sufficient enough to preclude a conclusion that the provocation was adequate.') (citations omitted). Thus, Appellant's claim lacks merit.
Conn, slip op. at 7-9 (footnote in original).
Appellant now asserts that, if counsel had argued to the trial court that Brent's death was the triggering event that ultimately caused Appellant to kill Riggs, Appellant would have been entitled to an EED instruction.
We understand that the Supreme Court's resolution of an alleged trial error on direct appeal does not preclude review of the issue as an ineffective assistance of counsel claim. Leonard, 279 S.W.3d at 158. However, under the circumstances presented here, the opinion on direct appeal clearly refutes Appellant's claim that counsel failed to argue that Brent's death was the triggering event in support of an EED instruction. We conclude the trial court properly denied RCr 11.42 relief on this issue.
II. Mitigation
Appellant contends counsel failed to present favorable mitigation evidence during the penalty phase. In his RCr 11.42 motion, Appellant tendered the affidavits of Cynthia Estep (Brent's mother) and his daughter, Tiffany (Brent's sister), indicating they would have testified regarding the turmoil Appellant experienced when Brent died. Appellant speculates he would have received a lesser sentence if counsel had called these witnesses in mitigation to humanize him as a grieving father.
We find this argument unpersuasive. Although Appellant characterizes trial counsel as failing to present any "meaningful" evidence in mitigation, a review of the record refutes this claim. During the guilt phase of the trial, defense counsel elicited compelling testimony from Cynthia regarding the impact of Brent's death on Appellant. Appellant also testified at length during the guilt phase regarding his grief over his son's death. During the penalty phase, Appellant's elderly father offered general testimony about their family. Counsel gave a closing statement imploring the jury to give Appellant the minimum sentence, emphasizing that he was fifty years old and that he did not have a criminal history. "When the same jury sits in both parts of a bifurcated proceeding in a . . . murder trial, all evidence introduced in the guilt phase may be considered by the jury during the sentencing phase." Harper, 978 S.W.2d at 317.
We conclude Appellant's allegations on this issue are refuted by the record; consequently, counsel was not ineffective and no evidentiary hearing was warranted.
III. Conclusion
We must reiterate that "[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight . . . ." McQueen, 949 S.W.2d at 71. Although Appellant is now dissatisfied with counsel's performance, the record clearly reflects that counsel acted reasonably under the circumstances and with intent to put forth the best possible defense. In this case, trial counsel's representation of Appellant simply did not fall below the standard of reasonable professional assistance, and Appellant's claim of cumulative error is without merit. We conclude Appellant's allegations of ineffective assistance are refuted by the record; accordingly, the trial court properly denied Appellant's RCr 11.42 motion without an evidentiary hearing.
For the reasons stated herein, we affirm the Rowan Circuit court.
ALL CONCUR.
