RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-000139-MR

JUAN R. PELEGRIN-VIDAL APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 02-CR-002886

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING IN PART

AND REVERSING IN PART

**   **  **

BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.

ACREE, JUDGE: Juan R. Pelegrin-Vidal (Appellant), pro se, appeals the 

Jefferson Circuit Court’s April 23, 2018, order denying his petition for postconviction relief claiming ineffectiveness of his appointed counsel’s assistance. 

Appellant also appeals the circuit court’s requirement that he pay a filing fee. For 

the following reasons, we affirm in part and reverse in part. 
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BACKGROUND

Appellant, a 1995 immigrant from Cuba, was tried and found guilty of

murder and burglary. In 2002, Appellant began a relationship with Elaine Fonseca, 

and moved in with Elaine at her mother’s house. The relationship led to 

Appellant’s crime, indictment, and punishment. 

Twenty years younger than Appellant, Elaine became pregnant with 

his child. The couple disclosed their relationship, and Elaine’s pregnancy, to 

Elaine’s mother. Elaine’s mother kicked Appellant out of the house and pressured

Elaine to have an abortion. The procedure was scheduled for December 11, 2002.

Appellant went to the abortion clinic and begged Elaine not to go 

through with it. Elaine did not listen, so Appellant left the clinic and went to 

Elaine’s father, who would not help him. 

After the abortion, Appellant called Elaine several times, but she

never answered. The next morning, Elaine’s father left for work around 6:00 a.m. 

and her mother left twenty minutes later, leaving Elaine alone in the house. 

Appellant was at the laundromat around the corner. He called Elaine around 6:30 

a.m., and she answered. She told him not to be upset about the abortion, and that 

her parents would eventually accept their relationship. Nine minutes later, 911 

dispatch received a call from Elaine’s residence. The caller said someone was 

breaking into the residence, but the call disconnected. Shortly thereafter, police 
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discovered Elaine lying on the living room floor. She died a few hours later, in the 

hospital. The autopsy showed she was beaten severely with a blunt instrument. 

Appellant denied being in Elaine’s home. He says he drove past her 

house around 6:30 a.m., but there were emergency personnel there, so he did not 

stop. Appellant also missed his doctor’s appointment scheduled for that afternoon. 

Instead of going to his doctor, he fled to Texas. Ultimately, he was apprehended 

and questioned in Florida. 

Appellant was tried by a jury and found guilty. For reasons not 

relevant here, the Supreme Court reversed the conviction and remanded the case. 

Pelegrin-Vidal v. Commonwealth, No. 2007-SC-000848-MR, 2010 WL 1006277 

(Ky. Mar. 18, 2010). After a new trial, Appellant was again found guilty, and the 

conviction was affirmed. Vidal v. Commonwealth, No. 2015-SC-000167-MR, 

2017 WL 636417 (Ky. Feb. 16, 2017). He then filed an RCr1 11.42 motion for a 

new trial, claiming ineffectiveness of counsel. The motion was denied; 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 

 

1 Kentucky Rules of Criminal Procedure.
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apply the “deficient-performance plus prejudice” standard articulated in Strickland 

v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). 

Under this standard, the movant must first prove that his trial 

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, the movant must prove that counsel’s “deficient performance 

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

establish prejudice, the movant must demonstrate “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 
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counsel’s challenged conduct, and to evaluate the conduct from counsel’s 

perspective at the time.” Id. 

ANALYSIS

Appellant makes multiple arguments of ineffective assistance of 

counsel. We address each in turn. 

Counsel’s Failure to Subpoena Phone Records and to Engage an Investigator

Appellant first argues his attorney failed to subpoena his phone 

records and failed to employ an investigator to corroborate his story. But his story, 

by his own admission, was that he talked to Elaine by phone at 6:30 a.m. while at a 

laundromat near her house. This established he had the opportunity to commit the 

crime. An investigator’s corroboration of that testimony by phone records or 

otherwise only would have made this part of the prosecution’s case stronger. It 

would not have justified the circuit court’s grant of funding for an investigator.

Otherwise, generally, without asserting the facts an investigation 

would have yielded that could change the outcome of the trial, there is no basis to 

find counsel ineffective. Nothing more than speculation that an investigator might 

have found something new is insufficient basis for finding counsel ineffective. 

We see nothing in the record that would lead us to believe an 

investigation by defense counsel would have yielded evidence in aid of Appellant’s

defense. Therefore, an evidentiary hearing is unnecessary. Like the circuit court, 
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we are not convinced that subpoenaing phone records or paying for an investigator

would have changed the outcome of Appellant’s trial. We are not persuaded by 

this argument.

Vienna Convention

Appellant next argues the circuit court erred by denying him an 

evidentiary hearing regarding his counsel’s failure to pursue relief under the 

Vienna Convention when he was not advised of his right of consular assistance at 

the time he was questioned in Florida. Appellant fails to demonstrate any 

prejudice under Strickland. He directs this Court to no factual basis for this claim,

and this Court independently searching the record has found none. 

Moreover, an RCr 11.42 motion is not the vehicle to pursue such 

relief. The Vienna Convention does not guarantee defendants any assistance of 

counsel and, indeed, secures only the right of foreign nationals to have their 

consulate informed of their arrest or detention. Sanchez-Llamas v. Oregon, 548 

U.S. 331, 349, 126 S. Ct. 2669, 2681, 165 L. Ed. 2d 557 (2006). Additionally, this 

issue arose in the first trial, but Appellant failed to raise it in either appeal to the 

Supreme Court. Accordingly, we decline to reverse on this basis.

911 Call Error

Appellant’s next argument pertains to evidence of the 911 call. He 

believes the court should have admitted into evidence two transcripts – the 
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Commonwealth’s version and his version transcribed in Cuban Spanish. We find 

no merit here because the circuit court, on remand, was told how to handle the 911 

transcript. The circuit court was to delete Appellant’s surname in the transcript 

where the tape was considered “inaudible.” The Court stated that where “there are 

inaudible portions of the tape, the court should direct the deletion of the unreliable 

portion of the transcript,” which “assumes that the court has predetermined that 

unintelligible portions of the tape do not render the whole recording 

untrustworthy.” Pelegrin-Vidal, 2010 WL 1006277, at *5 (quoting United States 

v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983)). The Supreme Court did not state 

that Appellant’s translated copy should be submitted to the jury. The circuit court 

and Appellant’s counsel were bound by the mandate. See Illinois Cent. R. Co. v. 

Haynes, 144 Ky. 508, 139 S.W. 754, 755 (1911) (“duty of the circuit court to obey 

the mandate of this court”).

At the retrial, the 911 tape was played, and the single transcript was 

submitted to the jury as instructed by the Supreme Court. Appellant did not object 

and did not raise this alleged error on direct appeal. If Appellant objected to the 

entry of the 911 call, or the lack of a transcript as he interpreted it, he should have 

objected and made a claim on direct appeal.

 
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Interviewing Potential Witnesses

Appellant also argues his counsel erred by refusing to call certain 

witnesses and by not utilizing prior testimony of unavailable witnesses. “[T]rial 

counsel’s choice of whether to call witnesses is generally accorded a presumption 

of deliberate trial strategy and cannot be subject to second-guessing in a claim of 

ineffective assistance of counsel.” Saylor v. Commonwealth, 357 S.W.3d 567, 571 

(Ky. App. 2012) (citation omitted). We have examined the record, and nothing 

causes the Court to conclude counsel’s decision regarding these witnesses was 

other than trial strategy.

One witness would have testified to the family dynamic, which would 

have little or no impact on the outcome. Another witness would testify to the 

reason Appellant left Kentucky. This testimony would not have aided Appellant’s 

case. Appellant himself said he did not go to his doctor’s appointment out of fear 

he would be arrested. Appellant was not prejudiced by the failure to call these 

witnesses. Choosing not to call them was mere trial strategy and does not satisfy 

the Strickland requirements. 

Mistrial

Appellant’s last claim of error pertains to his counsel’s failure to 

move for a mistrial after the Commonwealth introduced evidence of the condition 
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of his apartment three months after the murder. Appellant believed the apartment 

had been staged by the police. But there is no evidence to support the theory. 

In fact, the photographs entered into evidence by the Commonwealth 

showed Appellant’s apartment was a virtual shrine to Elaine. When Appellant 

presented the circuit court with this argument on his RCr 11.42 motion, the court 

concluded such evidence was more likely to have helped than to have undermined

Appellant’s theory that there was an alternate perpetrator. Appellant cannot 

explain how the circuit court would have perceived the argument differently if it 

had been presented in the context of a mistrial motion. Therefore, this Court 

cannot say the outcome would have been different had Appellant’s counsel moved 

for a mistrial. Failing to do so is not ineffective assistance of counsel. 

Filing Fees

Appellant contends the circuit court abused its discretion when it 

charged him an $80 fee to file his RCr 11.42 motion. The applicable rule plainly 

states: “There shall be no filing fee for . . . proceedings under RCr 11.42 . . . .” 

CR2 3.02(1)(a). Imposition of the filing fee constituted error. Appellant is entitled 

to a refund for his filing fee. 

 

2 Kentucky Rules of Civil Procedure. 
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CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the 

Jefferson Circuit Court’s order denying a vacated judgment. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Juan R. Pelegrin-Vidal, pro se

La Grange, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Gregory C. Fuchs

Assistant Attorney General

Frankfort, Kentucky