RENDERED: AUGUST 14, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001361-MR

JEROME HAWKINS APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT

v. HONORABLE KAREN LYNN WILSON, JUDGE

ACTION NO. 13-CR-00251

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Jerome Hawkins appeals the Henderson Circuit Court’s denial 

of his RCr1 11.42 motion for post-conviction relief alleging his counsel’s 

assistance was ineffective. He also asserts he was entitled to appointment of 

 

1 Kentucky Rules of Criminal Procedure. 
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counsel and an evidentiary hearing on his post-conviction motion. After careful 

review, we affirm. 

BACKGROUND

Hawkins was indicted on one count of first-degree trafficking in a 

controlled substance (four or more grams of cocaine), one count of trafficking in 

marijuana (over eight ounces), and one count of being a first-degree persistent 

felony offender. The jury found Hawkins guilty on all charges. He was sentenced 

to seventeen years in prison. The Kentucky Supreme Court affirmed his 

conviction. Hawkins v. Commonwealth, 536 S.W.3d 697 (Ky. 2017). 

After his judgment of conviction was affirmed, Hawkins, acting pro 

se, filed an RCr 11.42 motion to vacate the judgment for ineffective assistance of 

counsel. He also moved for appointment of counsel. The circuit court denied his 

motions without conducting an evidentiary hearing. This appeal followed. 

STANDARD OF REVIEW

Every defendant is entitled to reasonably effective, but not necessarily 

errorless, counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 

2011). In evaluating a claim of ineffective assistance of counsel, we apply the 

familiar “deficient-performance plus prejudice” standard first articulated in 

Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 

674 (1984). 
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Under this standard, the movant must first prove his counsel’s 

performance was deficient. Id., 466 U.S. at 687, 104 S. Ct. at 2064. To establish 

deficient performance, the movant must show that counsel’s representation “fell 

below an objective standard of reasonableness” such that “counsel was not 

functioning as the ‘counsel’ guaranteed by the Sixth Amendment[.]”

Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. 

Elza, 284 S.W.3d 118, 120-21 (Ky. 2009). 

Second, a movant must prove counsel’s “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. That 

requires the movant to show “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id., 466 U.S. at 694, 104 S. Ct. at 2068.

As a general matter, we recognize “that counsel is strongly presumed 

to have rendered adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment.” Id., 466 U.S. at 690, 104 S. Ct. at 

2066. For that reason, “[j]udicial scrutiny of counsel’s performance [is] highly 

deferential.” Id., 466 U.S. at 689, 104 S. Ct. at 2065. We must make every effort 

“to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s 

perspective at the time.” Id.
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ANALYSIS

Not every claim of ineffective assistance merits an evidentiary

hearing. Nor is an RCr 11.42 movant automatically entitled to one. See Stanford 

v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The trial court need only 

conduct an evidentiary hearing “if there is a material issue of fact that cannot be 

conclusively resolved, i.e., conclusively proved or disproved, by an examination of 

the record.” Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations 

omitted); RCr 11.42(5). An evidentiary hearing is unnecessary when the record 

refutes the claims of error or when the allegations, even if true, would not be 

sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 

314 (Ky. 1998). 

Likewise, not every movant is entitled to counsel in a post-conviction 

proceeding. Fraser, 59 S.W.3d at 451. But, if an evidentiary hearing is mandated, 

then the trial court shall appoint counsel to represent an indigent defendant. RCr 

11.42(5). 

As explained below, the claims raised by Hawkins are either refuted 

by the record or are insufficient, based on review of the record, to justify relief 

under Strickland. An evidentiary hearing was not warranted and, accordingly, 

Hawkins was not entitled to appointment of counsel. 
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Trial Counsel Ineffectiveness

First, Hawkins contends trial counsel was ineffective for failing to 

object to the jury instruction on first-degree trafficking in four grams or more of 

cocaine by not challenging the Commonwealth’s assertion that he possessed four 

or more grams of “pure” cocaine. The police seized multiple baggies of alleged 

cocaine from Hawkins. Testimony revealed that one baggie contained 

approximately 5.475 grams of a white solid. Testing showed the white solid 

consisted of cocaine as well as “cutting agents.” At trial, Hawkins moved for a 

directed verdict, asserting the Commonwealth had not proven there were four 

grams of pure cocaine. The motion was denied. 

The Kentucky Supreme Court addressed the purity issue on appeal. It 

noted that Hawkins should have objected to the jury instruction, and his failure 

resulted in a lack of preservation. Accordingly, it reviewed only for palpable error.

Hawkins, 536 S.W.3d at 701. It concluded that “[KRS2 218A.010(7)3] clearly 

defines ‘a substance containing any quantity of cocaine’ as cocaine.” Id. at 703. 

Therefore, the Commonwealth was not required to prove that pure cocaine 

accounted for the total weight of four or more grams. 

 

2 Kentucky Revised Statutes.

3 Previously titled KRS 218A.010(5).
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The jury was correctly instructed on this offense, and the 5.475 grams 

of cocaine was sufficient to convict Hawkins. Even if Hawkins’ trial counsel had 

objected, the outcome of the case would not have changed. Therefore, any 

deficiency in failing to object to the jury instruction did not prejudice Hawkins’ 

defense.

Second, Hawkins asserts trial counsel failed to properly address the 

inadvertent disclosure of the identity of the Commonwealth’s confidential 

informant. Prior to Hawkins’ indictment, the Commonwealth recovered drugs 

from his truck in accordance with a valid search warrant. The basis of the search 

warrant was an affidavit from a detective who relied on information provided by a 

confidential informant. Hawkins moved to suppress the evidence. During the 

suppression hearing, the detective inadvertently disclosed the name of the 

informant. 

The circuit court found the disclosure to be accidental and 

admonished counsel not to discuss the informant’s name outside the courtroom. 

The court also ruled that the defendant could not call the informant as a witness. 

Hawkins asserts his counsel was ineffective for failing to argue that the
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Commonwealth waived its privilege to keep the informant confidential under 

KRE4 508(c)(1).

5

KRE 508(a) grants the Commonwealth “a privilege to refuse to 

disclose the identity of a person who has furnished information relating to or 

assisting in an investigation of a possible violation of a law[.]” But the 

Commonwealth may voluntarily waive this privilege “if the identity of the 

informer . . . has been disclosed by the holder of the privilege[.]” KRE 508(c)(1). 

This exception only applies if the disclosure is voluntary. Taylor v. 

Commonwealth, 987 S.W.2d 302, 304 (Ky. 1998) (“[e]xceptions to the privilege 

occur when the disclosure is voluntary”).

The circuit court found, and we agree, the disclosure of the 

confidential informant’s name was inadvertent and not intentional. “To be the 

equivalent of an express waiver, there must be a ‘known right’ that is ‘voluntar[ily] 

and intentional[ly] surrender[ed].’” Penticuff v. Miller, 503 S.W.3d 198, 205 (Ky. 

App. 2016) (citations omitted); see also Baker v. Jones, 199 S.W.3d 749, 753 (Ky. 

App. 2006) (“[i]nadvertent . . . release of [information] does not result in the 

 

4 Kentucky Rules of Evidence. 

5 We note Hawkins’ counsel did move to reveal the identity of the confidential informant on the 

basis that it was relevant and essential to his defense. The circuit court held a hearing and, after 

applying the analysis set forth in Heard v. Commonwealth, 172 S.W.3d 372 (Ky. 2005), 

determined that disclosure was not warranted. The Kentucky Supreme Court affirmed that ruling 

in Hawkins’ direct appeal. Hawkins, 536 S.W.3d at 703-04. However, it declined to address the 

waiver issue because it had not been preserved.
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waiver”). Therefore, the exception for voluntary waiver does not apply. Hawkins’ 

counsel was not deficient for failing to raise an issue not supported by the law.

Third, Hawkins argues trial counsel was ineffective for failing to 

adequately challenge the veracity of the detective’s affidavit for a search warrant

during the suppression hearing. His argument centers on the unreliability of the 

confidential informant. Specifically, he asserts the detective was unable to answer 

many of trial counsel’s questions relating to the reliability of the confidential 

informant, which “only mean[s] that [the detective] had to make false statements in 

his affidavit.” To the extent Hawkins is challenging the trial court’s denial of his 

suppression motion, that issue is not properly before us. We address only whether 

Hawkins’ trial counsel was ineffective. 

Hawkins does not further explain how his counsel was ineffective, 

other than a blanket statement that he did not adequately “pursue the veracity of 

the affidavit.” We disagree. It is uncontested that Hawkins’ counsel crossexamined the detective on his affidavit during the suppression hearing. 

Specifically, counsel questioned the detective on the reliability of the confidential 

informant, asking him about the informant’s criminal history, among other things,

and whether he was being compensated for working with the investigation. The 

mere fact that the detective was unable to answer all of trial counsel’s questions
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does not render his performance ineffective. We conclude Hawkins’ counsel was 

not deficient.

Fourth, Hawkins argues trial counsel was ineffective for failing to 

object to the racial makeup of the jury pursuant to Batson v. Kentucky, 476 U.S. 

79, 86, 106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69 (1986). Hawkins alleges the 

Commonwealth used peremptory challenges to strike four African-American 

jurors. This is unsupported by the record. The record reveals one AfricanAmerican was excused during voir dire because she knew Hawkins and was 

familiar with his history. But the record does not indicate how either party used 

their peremptory strikes.

The first element of a Batson claim is a prima facie showing that the 

Commonwealth exercised a peremptory challenge on the basis of race. Roe v. 

Commonwealth, 493 S.W.3d 814, 826 (Ky. 2015). Therefore, the first prerequisite 

to a successful claim of ineffective assistance of counsel for failing to assert a 

Batson claim is proof the Commonwealth excluded jurors of the defendant’s same 

race. Hawkins fails to cite any part of the record to establish that showing, and our 

review discovered none.

This also makes it impossible to show how the presence on the jury of 

unidentified/unidentifiable stricken jurors would have changed the outcome of his 

case. We see no deficiency in legal representation here.
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Fifth, Hawkins argues he was prejudiced by improper juror

communications. Specifically, he asserts multiple jurors were texting during his 

trial. According to Hawkins, the trial judge took one of the juror’s phones, 

reviewed the text messages without counsel present, and determined they were not 

related to the trial. Hawkins asserts the circuit court erred by not holding a hearing 

on the issue, and trial counsel was ineffective for failing to object to the trial 

judge’s review of the text messages without counsel present. Hawkins did not 

raise this issue in his RCr 11.42 motion before the circuit court. 

As an initial matter, Hawkins’ assertion that the circuit court erred by 

not holding a hearing on juror misconduct should have been raised on direct 

appeal. Accordingly, RCr 11.42 is not the appropriate vehicle for the relief he 

seeks. See Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972) (“It is not 

the purpose of RCr 11.42 to permit a convicted defendant to retry issues which 

could and should have been raised [on direct appeal.]”). Hawkins’ request for 

palpable error review of the issue pursuant to RCr 10.26 does not cure this 

deficiency. “RCr 10.26 is a standard of review for . . . the appellate court, when 

reviewing an appeal from a final judgment, because of a palpable error during trial

that resulted in manifest injustice.” Stoker v. Commonwealth, 289 S.W.3d 592, 

598 (Ky. App. 2009). 
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We will not undertake a palpable error review under RCr 10.26 

because the rule does not afford a separate basis for relief under RCr 11.42 or CR6

60.02. Stoker v. Commonwealth, 289 S.W.3d 592, 598 (Ky. App. 2009).

Finally, Hawkins asserts trial counsel’s errors, taken cumulatively, 

would be sufficient to warrant a new trial. We disagree. We made no finding that 

counsel’s performance was deficient or that it created prejudice sufficient to 

constitute ineffective assistance of counsel in any of Hawkins’ arguments analyzed 

above. There can be no cumulative error when individual meritless claims of 

ineffective assistance of counsel are combined. McQueen v. Commonwealth, 721 

S.W.2d 694, 701 (Ky. 1986).

Each of Hawkins’ claims of ineffective assistance of counsel was 

resolvable on the record. There was no need for a hearing and, consequently, no 

requirement to appoint counsel to represent him.

CONCLUSION

We affirm the Henderson Circuit Court’s order denying Hawkins’

RCr 11.42 motion for post-conviction relief alleging ineffective assistance of 

counsel.

ALL CONCUR.

 

6 Kentucky Rules of Civil Procedure.
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BRIEF FOR APPELLANT:

Jerome Hawkins, pro se

Sandy Hook, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky