RENDERED: AUGUST 25, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0179-MR

ANU WHITE APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NOS. 14-CR-003257 AND 14-CR-003257-004

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: In 2017, Appellant, Anu White (White), was convicted of 

first-degree robbery (complicity). He was found not guilty of murder. Prior to his 

sentencing phase of trial, White entered a conditional plea, wherein he agreed to 

waive his right to a jury-sentencing phase, and his right to appeal any trial issues. 

The Commonwealth recommended a sentence of twelve years’ imprisonment, 

which was imposed by the trial court. Nearly three years later, White filed a pro se
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Motion to Vacate, Set Aside, or Correct Sentence pursuant to RCr1 11.42. The 

primary allegation here is that he pleaded guilty because of ineffective assistance 

of counsel. The court denied White’s request for RCr 11.42 relief. He appeals to 

this Court as a matter of right. For the following reasons, we affirm. 

A successful petition for relief under RCr 11.42 for ineffective 

assistance of counsel must survive the twin prongs of “performance” and 

“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 687 (1984); 

accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). As to the 

second Strickland prong, the defendant has the duty to “affirmatively prove 

prejudice.” Id. at 693. In the context of a guilty plea:

A conclusory allegation to the effect that absent the error 

the movant would have insisted upon a trial is not 

enough. The movant must allege facts that, if proven, 

would support a conclusion that the decision to reject the 

plea bargain and go to trial would have been rational, 

e.g., valid defenses, a pending suppression motion that 

could undermine the prosecution’s case, or the realistic 

potential for a lower sentence.

Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (citations and footnote 

omitted).

[W]hen reviewing a trial court’s findings of fact 

following an RCr 11.42 evidentiary hearing, an appellate 

court utilizes the clearly erroneous standard set forth in 

Kentucky Rules of Civil Procedure (CR) 52.01. Findings 

of fact are not clearly erroneous if supported by 

1 Kentucky Rules of Criminal Procedure.
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substantial evidence. Even though claims of ineffective 

assistance of counsel are subject to de novo review, a 

reviewing court should defer to the determination of facts 

made by the trial judge.

Saylor v. Commonwealth, 357 S.W.3d 567, 570-71 (Ky. App. 2012) (citations 

omitted). With these standards in mind, we now return to the record and 

arguments at issue here. 

White contends that the jury was presented with an erroneous 

facilitation to robbery instruction. The Commonwealth does not dispute this. But 

for this erroneous instruction, White claims that he would not have accepted the 

sentencing plea agreement. However, in denying White’s RCr 11.42 petition, the 

circuit court correctly concluded that the jury did not consider the tendered 

facilitation instruction, because it found White guilty under the preceding

complicity instruction. White does not take issue with the complicity instruction, 

which concluded with the admonition, “[I]f you do not find Anu White guilty 

under this instruction, proceed to Instruction 2a [facilitation].” Therefore, because 

White cannot “affirmatively prove prejudice” pursuant to Strickland, we need not 

address trial counsel’s “performance.” Accordingly, we AFFIRM.

ALL CONCUR.
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BRIEF FOR APPELLANT:

Jacquelyn Bryant-Hayes

LaGrange, Kentucky

REPLY BRIEF FOR APPELLANT:

Kara Stinson Lewis 

LaGrange, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas A. Van De Rostyne

Assistant Attorney General

Frankfort, Kentucky