RENDERED: JULY 16, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0752-MR

CARY W. PEMBLETON APPELLANT 

v. 

APPEAL FROM TAYLOR CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, JUDGE

ACTION NO. 15-CR-00117 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Cary W. Pembleton (“Pembleton”) appeals the order of the 

Taylor Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 

11.42 motion alleging ineffective assistance of counsel. Following a careful 

review of the record and the law, we affirm. 

Pembleton was charged with 100 counts of possession or viewing of 

matter portraying a sexual performance by a minor and one count of distribution of 
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matter portraying a sexual performance by a minor.1 On December 15, 2015, 

Pembleton pled guilty to all charges pursuant to an agreement with the 

Commonwealth. As part of the agreement, Pembleton would have the opportunity 

to withdraw his pleas of guilty and have any conviction set aside should federal 

prosecutors decide to bring federal charges against him. 

The trial court scheduled a final sentencing hearing for March 15, 

2016. On that date, Pembleton expressed interest in withdrawing his guilty plea. 

The trial court continued the matter for two weeks to allow Pembleton to consider 

the decision with his trial counsel. On March 29, 2016, Pembleton stated that he 

was satisfied with the advice of his trial counsel and no longer wished to withdraw 

his guilty plea. The trial court sentenced Pembleton to 18 years’ imprisonment 

pursuant to the plea agreement.

On March 28, 2019, Pembleton filed a pro se motion to set aside his 

conviction under RCr 11.42, alleging ineffective assistance of counsel. In his 

motion, Pembleton argued that his trial counsel, C.B. Bates, did not obtain an 

expert witness prior to Pembleton’s decision to plead guilty and that Bates failed to 

adequately discuss with him the possible defenses which would have been 

available at trial. On February 21, 2020, the trial court held an evidentiary hearing 

on Pembleton’s ineffective assistance of counsel claims. 

 

1

See Kentucky Revised Statutes (KRS) 531.335 and 531.340. 
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At the evidentiary hearing, the trial court heard testimony from 

cybercrime investigator Michael Littrell of the Kentucky Attorney General’s 

Department of Criminal Investigations.

2

 Investigator Littrell testified that in 2015, 

he was alerted of a particular Internet Protocol (IP) address from which a 

BitTorrent file containing 1,065 images, some of which were known to be child 

pornography, had been downloaded and shared.3 Further investigation confirmed 

that the images connected with the IP address were child pornography. 

Investigators traced the IP address registration to Windstream Communications, 

which informed them that the IP address belonged to a subscriber identified as “PC 

Tech Help, LLC” / “Cary Pembleton” with a “location of service” registered at 

Pembleton’s residential address in Campbellsville, Kentucky. Investigators 

executed a search warrant at Pembleton’s home and seized several computers and 

servers from the residence. The IP address on one of the computers seized from 

Pembleton’s home by law enforcement matched the IP address that investigators 

had initially traced to Pembleton, and investigators eventually found the child 

pornography files on that computer.4 

 

2

Investigator Littrell’s testimony consisted of a video recording of his testimony before the 

Taylor County Grand Jury on September 1, 2015. 

3

Investigator Littrell testified that the BitTorrent network is a decentralized peer-to-peer file 

sharing network that is commonly used for the distribution of child pornography. 

4 The record indicates that investigators eventually located thousands more images containing 

child pornography on other devices seized from Pembleton’s residence. 
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Pembleton testified that he was self-employed and that his homebased business, PC Tech Help, LLC, offered data hosting services, provided 

information-technology (IT) support, and repaired and serviced computer systems. 

Pembleton further testified that he believed that a number of his business’ clients 

could have used his router to access his personal computer and IP address.5 

Pembleton and Bates both testified that the two met in the Taylor County 

Detention Center on multiple occasions following Pembleton’s arrest to discuss the 

Commonwealth’s plea offer, the evidence against him, and potential experts that 

could assist in the case. 

Bates testified that Pembleton steadfastly maintained his innocence 

throughout the case and asserted that he believed another individual hacked into 

his computer and committed the criminal acts with which he was charged. Bates 

dedicated a significant portion of his testimony to discussing his concern that 

Pembleton’s computer knowledge and IT training could have been detrimental at 

trial. As the trial court noted in its order denying Pembleton’s RCr 11.42 motion: 

Mr. Bates testified, he was concerned, legitimately in the 

Court’s opinion, that it would be difficult to convince a 

jury that someone with the computer savvy of

[Pembleton] could have allowed another person to hack 

into his personal computer and view images of child 

 

5 The files containing child pornography that initially led to the investigation into Pembleton 

were located on his personal computer, not on any of the 12 computers in his home associated 

with his business. 
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pornography, without the knowledge of [Pembleton]. 

Mr. Bates stated in his testimony, again justifiably in the 

Court’s opinion, that he did “not want to highlight the 

technical knowledge to the jury of his client.” 

Bates further testified that he asked an investigator to research potential expert 

witnesses and stated that he discussed with Pembleton that if he desired to proceed 

to trial, Bates would seek a continuance of the trial date and request funding to hire 

a forensic computer expert on Pembleton’s behalf. 

At the time of the evidentiary hearing, Bates had tried about 25 cases 

in his career with the Department of Public Advocacy and had handled several

child pornography cases. Bates testified that he had never practiced in federal 

court, but that he did discuss with Pembleton the potential penalties for child 

pornography charges in federal court. He further testified that following the March 

15, 2016, preliminary hearing, he obtained a copy of the applicable federal 

sentencing guidelines to educate himself and Pembleton on potential federal 

exposure in child pornography cases. Bates believed that if Pembleton were

convicted in federal court, he could serve between 12 and 15 years, without the 

possibility of parole. Bates testified that he shared this information with 

Pembleton prior to Pembleton’s making his decision not to withdraw his guilty 

plea. Finally, Bates noted that an additional consideration for Pembleton was that, 

under the plea agreement, the Commonwealth would not pursue additional charges 

apart from the 101 counts in the indictment in the present case. 
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On April 27, 2020, the trial court entered an order denying 

Pembleton’s RCr 11.42 motion. Pembleton now appeals. 

We review a trial court’s findings of fact following an RCr 11.42 

evidentiary hearing under a clearly erroneous standard. Saylor v. Commonwealth, 

357 S.W.3d 567, 570-71 (Ky. App. 2012). “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.” Id. at 571 (citing McQueen 

v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986)). 

A defendant who seeks relief from a guilty plea on the ground of 

ineffective assistance of counsel must show both that counsel’s performance was 

deficient and that he was prejudiced as a result of that performance. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). 

To demonstrate deficient performance, Pembleton must prove that Bates’ 

representation “fell below an objective standard of reasonableness.” Id. at 687-88, 

104 S. Ct. at 2064. To meet that burden, Pembleton “must overcome the strong 

presumption counsel’s assistance was constitutionally sufficient or ‘might be 

considered sound trial strategy.’” Koteras v. Commonwealth, 589 S.W.3d 534, 541 

(Ky. App. 2018) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). With 

respect to prejudice, in the guilty plea context, “the challenger must demonstrate a 

reasonable probability that, but for counsel’s errors, he would not have pleaded 
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guilty and would have insisted on going to trial.” Commonwealth v. Pridham, 394 

S.W.3d 867, 876 (Ky. 2012) (internal quotation marks and citations omitted). 

We first turn to the deficiency prong of Strickland. Pembleton argues 

that Bates’ failure to hire a forensic computer expert was a deficient performance 

of his duty as trial counsel. As trial counsel, Bates had “a duty to make reasonable 

investigations or to make a reasonable decision that [made] particular 

investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. 

The reasonableness of counsel’s actions may be 

determined or substantially influenced by the defendant’s 

own statements or actions. Counsel’s actions are usually 

based, quite properly, on informed strategic choices made 

by the defendant and on information supplied by the 

defendant. In particular, what investigation decisions are 

reasonable depends critically on such information. For 

example, when the facts that support a certain potential 

line of defense are generally known to counsel because of 

what the defendant has said, the need for further 

investigation may be considerably diminished or 

eliminated altogether. And when a defendant has given 

counsel reason to believe that pursuing certain 

investigations would be fruitless or even harmful, 

counsel’s failure to pursue those investigations may not 

later be challenged as unreasonable. In short, inquiry 

into counsel’s conversations with the defendant may be 

critical to a proper assessment of counsel’s investigation 

decisions, just as it may be critical to a proper assessment 

of counsel’s other litigation decisions.

Id. (citation omitted). In the present case, Bates testified that he asked an

investigator to research potential expert witnesses to utilize if Pembleton decided 

to go to trial. Bates stated that in one of his meetings with Pembleton at the Taylor 
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County Detention Center, he told Pembleton that he would ask the court to 

continue the trial date and request funding to hire a forensic computer expert to 

potentially testify on Pembleton’s behalf. 

Importantly, Bates testified that the notion of proceeding to trial under 

Pembleton’s proposed theory of defense concerned him for a number of reasons, 

all of which he advised Pembleton. First, Bates expressed concern in the defense’s 

ability to convince a jury that Pembleton, a tech savvy individual with a business 

centered around computers, could have allowed another person to hack into his 

personal computer and download and share images of child pornography. To that 

point, Bates advised Pembleton that several terms of the Commonwealth’s plea 

offer made entering a plea agreement an enticing option. For example, a major 

consideration was the condition that, in exchange for a plea of guilty, Investigator 

Littrell agreed not to pursue charges in federal court.6 Even if federal prosecutors 

decided to pursue charges, Pembleton was advised that, should that occur, he 

would be allowed to withdraw his guilty plea and have any conviction in this 

matter vacated. 

Moreover, under the plea agreement, the Commonwealth offered 18 

years’ imprisonment with the possibility of parole once Pembleton had served 20% 

 

6 Although Investigator Littrell could recommend that the United States Attorney’s Office not 

pursue charges against Pembleton, he could not promise that federal prosecutors would not 

pursue the case. 
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of his sentence. Bates informed Pembleton that although he could serve 12 to 15 

years under the applicable federal sentencing guidelines, there was no possibility 

for parole if he was convicted in federal court. Finally, an additional term of the 

plea agreement was the promise that the Commonwealth would not pursue 

additional child pornography charges against Pembleton in state court. This was 

an especially significant condition, given the evidence in the record that law 

enforcement found thousands more images containing child pornography on other 

devices seized from Pembleton’s home. 

We agree with the trial court that Bates’ representation of Pembleton 

was not objectively deficient. The record demonstrates that Bates took reasonable 

steps to allow Pembleton to make an intelligent decision on whether to plead 

guilty. 

Even assuming, for the sake of argument alone, that Pembleton had 

satisfied the deficiency prong of the Strickland analysis, he fails to satisfy the 

prejudice prong. To demonstrate prejudice in the context of a guilty plea, 

Pembleton must show “that a decision to reject the plea bargain would have been 

rational under the circumstances.” Williams v. Commonwealth, 336 S.W.3d 42, 48 

(Ky. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 

176 L. Ed. 2d 284 (2010)). Pembleton has not provided the evidence necessary to 

meet this burden. 
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Pembleton argues that a forensic computer expert could have analyzed 

his computer data to support his potential defense that someone hacked into his 

computer and accessed the child pornography files without his permission. 

However, as both the trial court and the Commonwealth have pointed out,

Pembleton did not produce any such expert to support this position in his RCr 

11.42 motion or at the evidentiary hearing below. Because Pembleton has 

provided no proof that he knows of a specific expert who would have been willing 

to testify in a manner helpful to the defense or what such testimony would have 

consisted of, we agree with the trial court that he has failed to establish how he was 

prejudiced by Bates’ failure to obtain a forensic computer expert. See Mills v. 

Commonwealth, 170 S.W.3d 310, 329-330 (Ky. 2005), overruled on other grounds 

by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). 

Finally, the record directly contradicts any contention that 

Pembleton’s guilty plea was involuntary because it was the product of ineffective 

assistance of counsel. “A criminal defendant may demonstrate that his guilty plea 

was involuntary by showing that it was the result of ineffective assistance of 

counsel.” Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004). 

However, the trial court conducted a thorough plea colloquy before ultimately 

accepting Pembleton’s guilty pleas at the March 29, 2016, final sentencing hearing. 

During that hearing, Pembleton stated that he was satisfied with the advice of his 
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trial counsel at that hearing and that he had a sufficient amount of time to make an 

informed decision to plead guilty. “Solemn declarations in open court carry a 

strong presumption of verity. The subsequent presentation of conclusory 

allegations unsupported by specifics is subject to summary dismissal, as are 

contentions that in the face of the record are wholly incredible.” Williams, 336 

S.W.3d at 50 (citation omitted). Accordingly, we hold that the Taylor Circuit 

Court properly denied Pembleton’s RCr 11.42 motion following an evidentiary 

hearing. 

For the foregoing reasons, we affirm the Taylor Circuit Court’s denial 

of Pembleton’s RCr 11.42 motion. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Kara Stinson Lewis

LaGrange, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

James Havey

Assistant Attorney General

Frankfort, Kentucky