NOT TO BE PUBLISHED

OPINION

THOMPSON, Judge.

Edward Leon Baker appeals the summary denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion.

In 2000, Baker was tried on two counts of using a minor in a sexual performance by inducement based on two separate groups of photos Baker took of an eleven-year-old child. Baker was convicted on both counts and sentenced to a total of thirty years' incarceration. His conviction was affirmed on appeal. Baker v. Commonwealth, 103 S.W.3d 90 (Ky. 2003).

In 2004, Baker filed a pro se RCr 11.42 motion alleging a number of trial errors and ineffective assistance of counsel. He was appointed counsel but no further action was taken until 2011, when the case was submitted by substitute counsel on Baker's original pleadings. Subsequently, in 2012, Baker filed a pro se supplement to his RCr 11.42 motion. The circuit court summarily denied Baker's motion without an evidentiary hearing, determining several of Baker's issues should have been presented on direct appeal, his conclusory statements about ineffective assistance of counsel were refuted by the record or he had failed to establish any prejudice, and determining it would not consider his supplement because it failed to conform to the rules and was incomprehensible. Baker appealed, arguing he was entitled to an evidentiary hearing on several issues because his claims were not refuted by the record and the court erred by failing to consider his pro se supplement.

Baker first argues the Commonwealth violated a discovery order by failing to turn over a videotaped statement by the victim and a photograph. Baker does not allege any error of counsel in regard to this claim. "[A]n RCr 11.42 motion is limited to issues that were not and could not have been raised on direct appeal." Bowling v. Commonwealth, 80 S.W.3d 405, 416 (Ky. 2002). A discovery violation should typically be raised on direct appeal unless it is only uncovered through newly discovered evidence. Baker does not allege the violation was newly discovered; accordingly, we affirm the denial of this claim because it should have been raised on direct appeal.

Additionally, Baker does not allege this evidence was exculpatory. Even on direct appeal, the failure to disclose evidence would only result in reversal if there was a reasonable probability that if the evidence were disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682-683, 105 S.Ct. 3375, 3383-3384, 87 L.Ed.2d 481 (1985).

Baker's remaining arguments are based on ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Baker must show that his counsel's performance was incompetent and prejudiced him because it fell below an object standard of reasonableness and there is a reasonable probability that the result of the proceeding would have been different but for counsel's errors. Hatcher v. Commonwealth, 310 S.W.3d 691, 696 (Ky.App. 2010). Proving deficit performance and prejudice is a heavy burden, especially given the presumption that counsel's conduct was reasonable and effective. Humphrey v. Commonwealth, 962 S.W.2d 870, 873 (Ky. 1998). Counsel's errors must have prevented the jury from having reasonable doubt, thus resulting in defeat when there should have been victory. Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008).

On appeal, we examine counsel's performance and any resulting deficiencies de novo. Id. at 500. When an evidentiary hearing is not held on an RCr 11.42 motion, "[o]ur 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." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).

A hearing is required if there is a material issue of fact that cannot be determined on the face of the record; a hearing is not necessary if the record refutes the claim of error or if "the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). "In seeking post-conviction relief, the movant must aver facts with sufficient specificity to generate a basis for relief." Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-453 (Ky. 2001). However, no evidentiary hearing is needed absent sufficient allegations. See Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). Baker's allegations are insufficient and do not establish any prejudice; therefore, we affirm.

Baker argues his counsel was ineffective for failing to contact character witnesses. A failure to investigate and present mitigation evidence may constitute ineffective assistance of counsel depending upon whether counsel's decision was reasonable under the circumstances. Wiggins v. Smith, 539 U.S. 510, 522-523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003); Parrish v. Commonwealth, 272 S.W.3d 161, 169 (Ky. 2008). However, prejudice under Strickland must still be established. Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542.

Baker has failed to name these potential witnesses, establish they would have testified, make any allegations as to the testimony they would have given or shown how their testimony would have changed the outcome of his trial. "[Baker's] failure to specify precisely what exculpatory or mitigating evidence these additional witnesses . . . would have provided is fatal to his claim that he was prejudiced by the ostensible lack of investigation by counsel of those witnesses." Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011).

Baker argues his counsel was deficient by failing to seek discovery. However, Baker does not explain what evidence proper discovery would have revealed or how this evidence would have changed the trial outcome. Therefore, his allegations are insufficient to show any error or prejudice.

Baker argues his counsel was ineffective for failing to have him evaluated or investigate his mental health history. Baker does not claim he was incompetent, he lacked the capacity to control his actions or that he had any mental health issues. However, if Baker had mental health issues, or was mentally ill, this does not mean he was incompetent to stand trial. Bishop v. Caudill, 118 S.W.3d 159, 162 (Ky. 2003). To the extent Baker may be arguing his mental health status would have provided mitigation, he has failed to allege what mental health issues he had or how they would mitigate his crime.

Baker argues his counsel acted deficiently by telling Baker he could not testify at trial. The Commonwealth argues Baker failed to assert his right to testify when the trial court asked whether Baker would testify.

The right of a defendant to testify on his own behalf is established by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Section 11 of the Kentucky Constitution and Kentucky Revised Statutes 421.225. Quarels v. Commonwealth, 142 S.W.3d 73, 79 (Ky. 2004); Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003). This right cannot be waived by counsel and any waiver by the defendant must be knowing and intelligent. Riley v. Commonwealth, 91 S.W.3d 560, 562 (Ky. 2002).

A defendant who wants to testify despite counsel's advice to the contrary must alert the court to his desire to testify or disagreement with counsel's advice. United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000). "When a defendant does not alert the trial court of a disagreement, waiver of the right to testify may be inferred from the defendant's conduct." Id. In reviewing an ineffective assistance of counsel claim regarding the denial of the right to testify, the reviewing court presumes: (1) the defendant "waived his right to testify unless the record contains evidence indicating otherwise" and (2) "trial counsel adhered to the requirement of professional conduct and left the final decision about whether to testify with the client." Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009). "[The defendant's] present allegations that he wanted to testify and was prevented from doing so do not suffice to overcome the presumption that he assented to the tactical decision that he not testify." Id.

Similarly, under the writ of coram nobis, relief did not lie for a defendant's claim that counsel denied him the right to testify when counsel advised him not to testify because the defendant was presumed to have acted on the advice of counsel. Kinder v. Commonwealth, 269 S.W.2d 212, 213-214 (Ky. 1954).

Id. at 214.

In accordance with Hodge and Kinder, we presume Baker was following the advice of defense counsel not to testify because Baker did not ask to testify when the trial court inquired as to whether he would be testifying.

Baker's final argument is the circuit court erred by failing to address the remaining arguments raised in his pro se supplement. However, Baker failed to state what these arguments were in his brief.

Under Kentucky Rules of Civil Procedure 76.12(4)(c)(v), an appellant is required to brief the issues raised on appeal:

Milby v. Mears, 580 S.W.2d 724, 727 (Ky.App. 1979) (internal citations omitted). Baker's brief reference to the other arguments raised before the circuit court is simply insufficient to preserve these arguments for appeal or to allow the Court to address them in any meaningful way. Therefore, we affirm the denial of these claims.

Accordingly, we affirm the Madison Circuit Court's summary denial of Baker's motion for relief pursuant to RCr 11.42.

ALL CONCUR.