NOT TO BE PUBLISHED

OPINION

CLAYTON, Judge.

This is an appeal from the denial of a motion for post conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Based upon the following, we affirm the decision of the trial court.

BACKGROUND INFORMATION

The Appellant, Tories Dewayne Qualls, was convicted of the rape of a twelve-year-old girl. The rape occurred in Hardin County in March of 2008. After a jury trial, Qualls was found guilty of rape in the first degree and received thirteen years' imprisonment.

During trial, the victim's mother testified regarding Qualls's anger at her over the status of their relationship and that she had contracted a sexually transmitted disease from Qualls. The manager of the hotel where the rape occurred also testified that Qualls had checked in on the date in question. A nurse practitioner testified as to the victim's treatment for the same sexually transmitted disease that her mother had contracted from Qualls. An emergency room physician testified that the victim had been examined and treated for a sexually transmitted disease. Qualls made a statement to the police in which he acknowledged that he had engaged in sex with the victim, but contended it had been consensual.

After his conviction, Qualls brought a direct appeal to a panel of our Court. In his appeal he argued that he was denied the opportunity to present a complete defense because the trial court had not allowed his taped statement to be played in its entirety. He also argued that he should have been allowed to recite what was on the omitted portions of the tape verbatim during his direct testimony. A panel of our Court denied Qualls's appeal.

In February of 2013, Qualls filed a pro se motion for post conviction relief pursuant to RCr 11.42 with the trial court. In his motion, Qualls contended that 1) his trial counsel did not adequately investigate and prepare for trial; 2) that he was not Mirandized by the police; 3) that the medical records introduced at trial were not properly authenticated; 4) that his counsel failed to object to the unauthenticated records; 5) that his counsel failed to call a medical witness in support of his defense; 6) that there was not sufficient evidence of penetration to support the rape conviction; 7) that his counsel failed to move to suppress his confession to the police; 8) that his appellate counsel did not argue that his trial counsel was ineffective in failing to file a motion to suppress the statement; 9) that his appellate counsel was ineffective in failing to argue that there was insufficient medical evidence; and, 10) cumulative error.

The trial court denied Qualls's motion, finding that 1) the record refuted his assertion concerning the lack of a Miranda warning; 2) that Qualls's statement to the police was voluntary based upon the copy of the statement in the record; 3) that Qualls's will was not broken by police misconduct; and 4) that the emergency room physician who examined the victim testified at trial about the sexual assault examination. Qualls then brought this appeal.

STANDARD OF REVIEW

We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998) (overruled on other grounds).

In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2064-65.

Pursuant to the holding in Strickland, supra, a "defendant 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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. With this standard in mind, we examine the arguments set forth by Qualls.

DISCUSSION

As set forth above, Qualls makes several assertions regarding the effectiveness of both his trial and appellate counsel. While Qualls argues that his trial counsel was ineffective in failing to move the trial court to suppress his statement to the police and failing to investigate the law of his case, we find his arguments unpersuasive.

The trial court set forth the appropriate legal standards in determining whether Qualls's motion for relief was based on meritorious evidence. Qualls does not point to any specific actions either taken or not taken by his counsel which would indicate ineffectiveness under the Strickland standard. While Qualls asserts the statement should have been suppressed, he argued before a panel of this Court on direct appeal that the entire statement should have been read.

While Qualls's counsel did not provide a medical witness on his behalf at trial, there is no indication that the medical witness could have refuted the evidence of rape or of the victim contracting the sexually transmitted disease from Qualls.

Finally, since none of the findings by the trial court were in error, there is no cumulative error. Thus, we affirm the decision of the trial court.

ALL CONCUR.