RENDERED: APRIL 1, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0499-MR

RODGER LEE COX APPELLANT

APPEAL FROM TAYLOR CIRCUIT COURT

v. HONORABLE SAMUEL TODD SPALDING, JUDGE

ACTION NOS. 18-CR-00125-001 AND 18-CR-00255

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

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BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Rodger Lee Cox appeals pro se from the Taylor 

Circuit Court’s order summarily denying his motion to vacate his sentence 

pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 based on 

ineffective assistance of counsel. As Cox has failed to establish any error or 

prejudice, we affirm.
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In February of 2018, Cox unlawfully entered a residence located in 

Campbellsville, Kentucky, from which he stole items valued at approximately 

$45,000. As a result, in 18-CR-00125-001, Cox was indicted in Taylor Circuit 

Court on one count of second-degree burglary pursuant to Kentucky Revised 

Statutes (KRS) 511.030; one count of receiving stolen property, $10,000 or more

pursuant to KRS 514.110; and one count of being a first-degree persistent felony 

offender (PFO 1) pursuant to KRS 532.080(3).

In May of 2018, Cox cashed a stolen check in the amount of $135 at 

OM Foodmart in Mannsville, Kentucky, and he cashed another stolen check in the 

amount of $110.50 at a Highway 70 Mart in Campbellsville, Kentucky. As a 

result, in 18-CR-00255, Cox was indicted in Taylor Circuit Court on two counts of 

second-degree criminal possession of a forged instrument pursuant to KRS 

516.060, and one count of being a PFO 1. 

On March 19, 2019, the Taylor Circuit Court approved Cox’s plea 

agreement with the Commonwealth, whereby he pled guilty to the substantive 

charges in both cases, the PFO enhancements were dismissed and he was 

sentenced to six years’ imprisonment. The Taylor Circuit Court also noted that in 

February of 2019, Cox had entered guilty pleas in two other cases in Marion 

Circuit Court (18-CR-00222 and 18-CR-00023). In those unrelated cases, Cox had 

been indicted on two counts of second-degree burglary, one count of possession of 
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a handgun by a convicted felon, and one count of possession of a firearm by a 

convicted felon, and he was ultimately sentenced to ten years’ imprisonment. 

Considering that, the Taylor Circuit Court ordered Cox’s six-year term of 

imprisonment in 18-CR-00255 and 18-CR-00125-001 to run concurrently with his 

ten-year term arising from 18-CR-00222 and 18-CR-00023. In short, Cox received 

no additional time in custody due to his cases in Taylor Circuit Court.

Thereafter, in January of 2020, Cox filed both a motion to vacate his 

sentences in the two Taylor Circuit Court cases pursuant to RCr 11.42 and a 

motion for an evidentiary hearing. On March 26, 2020, the Taylor Circuit Court 

denied both Cox’s RCr 11.42 motion and his motion for an evidentiary hearing. 

Cox thereafter filed this appeal.

In a motion brought under RCr 11.42, “[t]he movant has the burden of 

establishing convincingly that he or she was deprived of some substantial right 

which would justify the extraordinary relief provided by [a] post-conviction 

proceeding.” Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), 

overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 

(Ky. 2009). An RCr 11.42 motion “is limited to issues that were not and could not 

be raised on direct appeal.” Simmons, 191 S.W.3d at 561.

A successful petition for relief under RCr 11.42 for ineffective 

assistance of counsel must survive the twin prongs of “performance” and 
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“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 

37, 39-40 (Ky. 1985). As explained by the Kentucky Supreme Court, “[a] 

deficient performance contains errors so serious that counsel was not functioning 

as the counsel guaranteed the defendant by the Sixth Amendment.” 

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (internal quotation 

marks and citation omitted). Moreover, “a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption that, 

under the circumstances, the challenged action might be considered sound trial 

strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (internal quotation marks 

omitted). As further stated in Strickland, “the court should recognize that counsel 

is strongly presumed to have rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.

Ct. at 2066.

As to the second Strickland prong, the defendant has the duty to 

“affirmatively prove prejudice.” Id. at 693, 104 S. Ct. at 2067. 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 
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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).

Appellate review of the denial of an RCr 11.42 motion is de novo. 

McGorman, 489 S.W.3d at 736. Where the trial court does not hold an evidentiary 

hearing on an RCr 11.42 motion, appellate review is limited 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). An evidentiary hearing is only required “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).

In Cox v. Commonwealth, No. 2020-CA-0250-MR, 2020 WL 

6538807 (Ky.App. Nov. 6, 2020) (unpublished), Cox unsuccessfully appealed the 

Marion Circuit Court’s denial of his RCr 11.42 motion and his motion for an 

evidentiary hearing relative to 18-CR-00222 and 18-CR-00023. There, Cox

offered many of the same arguments he now offers in this appeal, without 

identifying any specific facts which differ from his Marion Circuit Court cases and 

his Taylor Circuit Court cases. To the extent that his arguments are duplicative in 
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all their particulars, the record before us gives us no reason to differ from how we 

previously resolved them:

Turning to the first error Cox alleges on appeal, 

Cox claims that his trial counsel neglected to reveal to 

Cox certain recanted witness statements before Cox 

entered his guilty plea. Because Cox is essentially 

arguing that his guilty plea was invalid, he “must allege 

with particularity specific facts which, if true, would 

render the plea involuntary under the Fourteenth 

Amendment’s Due Process Clause, would render the plea 

so tainted by counsel’s ineffective assistance as to violate 

the Sixth Amendment, or would otherwise clearly render 

the plea invalid.” Stiger, 381 S.W.3d at 234 (emphasis 

added).

Here, Cox provides no specific details as to the 

actual content of either the original testimony or to the 

claimed recanted testimony. He fails to explain how the 

claimed recanted testimony rendered his guilty plea 

involuntary under the Fourteenth Amendment’s Due 

Process Clause, nor does he clarify or give specific facts 

as to why he would have rejected the plea deal had his 

trial counsel disclosed the allegedly recanted statements 

and why such rejection would have been rational. 

Finally, he fails to allege with particularity why the 

disclosure of the alleged recanted testimony “would 

otherwise clearly render the plea invalid.” Id. Therefore, 

Cox cannot claim post-conviction relief based on this 

claim.

Cox next argues that his counsel was ineffective in 

failing to file a motion to suppress evidence seized from 

a location that Cox describes as “Upper 70 Stone Creek 

Road.” We again emphasize that “to be entitled to relief 

under RCr 11.42, the movant must ‘state specifically the 

grounds on which the sentence is being challenged and 

the facts on which the movant relies in support of such 

grounds.’” Roach v. Commonwealth, 384 S.W.3d 131, 
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140 (Ky. 2012) (citation omitted). Moreover, 

“[c]onclusory allegations that counsel was ineffective 

without a statement of the facts upon which those 

allegations are based do not meet the rule’s specificity 

standard and so ‘warrant a summary dismissal of the 

motion.’” Id. (citation omitted).

Here, Cox has failed to show any basis upon which 

his trial counsel could have argued that any evidence 

resulting from the search of the location should have 

been suppressed. Cox does not claim, nor does the 

record reveal, that Cox had any sort of property interest 

or other type of interest in the Upper 70 Stone Creek 

Road location to indicate that he would have a reasonable 

expectation of privacy. See Watkins v. Commonwealth,

307 S.W.3d 628, 629-30 (Ky. 2010) (citation omitted) 

(“[I]n order to have standing [to claim a violation under 

the Fourth Amendment of the United States Constitution 

or Section Ten of the Kentucky Constitution], the person 

claiming must have a ‘reasonable expectation of privacy’ 

in the place to be searched.”). Because Cox’s claim 

regarding the search of Upper 70 Stone Creek Road 

lacked the required specificity regarding such expectation 

of privacy, he cannot obtain post-conviction relief. 

Stiger, 381 S.W.3d at 234.

Id. at *2.

Cox next alleges that his trial attorney was ineffective for counseling 

him to accept a plea deal that violated his constitutional rights against double 

jeopardy. Cox contends that, in pleading guilty to burglary and receiving stolen 

property in 18-CR-00125-001, his double jeopardy rights were violated because he 

was convicted twice for the same conduct. We disagree. It is well-established that 
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convictions for burglary and receiving stolen property do not violate double 

jeopardy. See Phillips v. Commonwealth, 679 S.W.2d 235, 236-37 (Ky. 1984).

Next, Cox argues his trial attorney was ineffective for failing to file a 

motion for the trial judge to recuse himself. In support, Cox points out that the 

trial judge, Hon. Samuel Spalding, was his attorney in 2005 on another criminal 

matter, and that after that matter concluded, Cox filed an RCr 11.42 motion against 

Spalding, which was unsuccessful. See Cox v. Commonwealth, No. 2009-CA000237-MR, 2010 WL 3717237 (Ky.App. Sep. 24, 2010) (unpublished). This 

argument is without merit. First, Cox does not assert that he had ever even advised 

his counsel that: (1) Judge Spalding had previously represented him; or (2) there 

was some basis to believe that Judge Spalding would not be impartial. Without 

having any knowledge of facts, or any basis to believe there were facts that would 

support a motion to recuse, Cox’s counsel cannot be faulted for not filing such a 

motion. Second, Cox has failed to inform any court of any conduct on Judge 

Spalding’s part which would cause us to question Judge Spalding’s impartiality or 

would have required his mandatory recusal under the Rules of the Supreme Court

(SCR) 4.300, Rule 2.7. Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 485 (Ky. 2021). 

Most critically, Cox does not explain how Judge Spalding presiding over his case, 

or his counsel’s failure to make motion to recuse Judge Spalding, caused Cox

prejudice. As indicated, the trial court accepted Cox’s plea deal with the 
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Commonwealth which allowed Cox to avoid any additional jail time, despite his 

eligibility for additional time under the PFO statute.

Lastly, as Cox did in his appeal of his Marion Circuit Court cases, he 

challenges the denial of his motion for an evidentiary hearing. We believe our 

previous reasoning in resolution in those cases is equally appropriate here:

Cox contends the trial court wrongfully deprived him of 

an evidentiary hearing. However, he is “not 

automatically entitled” to such a hearing. Stanford v. 

Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993) 

(citation omitted). Only if there is “a material issue of 

fact that cannot be determined on the face of the record” 

must the trial court allow an evidentiary hearing. Id. 

(citation omitted). As stated by the Kentucky Supreme 

Court, if the record refutes the claims of error, there is no 

basis for holding an evidentiary hearing. Id. (citing Glass 

v. Commonwealth, 474 S.W.2d 400, 401 (Ky. 1971)). In 

this case, the trial court correctly determined, based on 

the record and as previously discussed, that no material 

issue of fact existed. Thus, we can discern no error in the 

trial court’s decision to not hold an evidentiary hearing in 

this case.

Cox, 2020 WL 6538807, at *3.

Based on the foregoing, we affirm the Taylor Circuit Court’s order

summarily denying Cox’s RCr 11.42 motion for relief from the ineffective 

assistance of counsel.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Rodger Lee Cox, pro se

Eddyville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky