RENDERED: JULY 14, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0536-MR

JIMMY HALL APPELLANT 

v. 

APPEAL FROM BUTLER CIRCUIT COURT

HONORABLE PHILLIP PATTON, JUDGE

ACTION NO. 14-CR-00059

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: Jimmy Hall (Hall) filed a motion pursuant to RCr1 11.42 

seeking a new trial due to allegations of ineffective assistance of trial counsel. The 

trial court denied relief, and he appeals. We affirm. 

1 Kentucky Rules of Criminal Procedure.
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FACTS

In 2014, Hall engaged in sexual intercourse and sodomy with a young 

girl who was only twelve (12) years old. The two had met on a telephone chat line 

and Hall had told the young girl that he was just a few years older than she, but he 

was actually fifty-six (56) years old. After the encounter, which took place in a 

hotel room, the young girl told her mother what had occurred, and her mother 

contacted the police.

While officers were at the young girl’s home responding to her 

mother’s call, Hall began calling and texting her. Police were able to determine his 

location via the cell signal and Hall was arrested. During an interrogation, Hall 

admitted to having sex with the girl and acknowledged she had just turned thirteen 

(13) years old. 

He was tried on charges of use of electronic communications system 

to procure a minor to sexual activity, two counts of unlawful transaction with a 

minor, and being a persistent felony offender in the first degree. The jury found 

him guilty of all charges and he was sentenced to life imprisonment.2

2 The trial court improperly ordered Hall’s two life sentences and a twenty-year sentence to all 

run consecutively. On direct appeal, the Kentucky Supreme Court reversed the sentence and 

remanded the matter for entry of a corrected judgment imposing a life sentence. 

It is well established that life sentences may not be ordered to run 

consecutively. Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 

199[3), as modified on denial of reh’g (Jan. 31, 1994)]. Nor, when 

imposed as a result of the same trial, may a sentence for a term of years 
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Following a direct appeal wherein his conviction was affirmed, Hall 

filed a motion pursuant to RCr 11.42 seeking relief for ineffective assistance of 

trial counsel. In the memorandum filed in support of the motion, counsel for Hall 

argued trial counsel had been ineffective for failing to object to the testimony of a 

hotel housekeeper. The housekeeper testified she threw away a blood-stained 

bedsheet after cleaning the room in which the two had stayed. Further, it was 

alleged that trial counsel had been ineffective by failing to present any mitigating 

evidence concerning a history of abuse suffered by Hall and possible mental illness

during the penalty phase of his trial. 

The trial court denied relief, without holding an evidentiary hearing, 

finding that the record conclusively established Hall was not entitled to any relief. 

The court referred to the opinion of the Kentucky Supreme Court, which pointed 

out that the testimony of the housekeeper was brief, and the evidence of guilt was 

overwhelming. As to the failure to present any evidence in mitigation, the court 

run consecutively with a life sentence. See v. Commonwealth, 746 S.W.2d 

401, 403-04 (Ky. 1988). While the trial court erred in ordering Hall’s

sentences to run consecutively, the relief requested by Hall of a new 

sentencing hearing is inappropriate. Rather, the appropriate remedy is the 

remand of this case to the trial court for entry of a corrected judgment 

clarifying that Hall’s sentences are to run concurrently with each other.

Hall v. Commonwealth, No. 2015-SC-000714-MR, 2018 WL 898651, at *6 (Ky. 

Feb. 15, 2018).
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held that the vague allegations that the outcome may have been different if counsel 

had called witnesses in mitigation were insufficient for a finding of ineffectiveness. 

STANDARD OF REVIEW

We review the factual findings of the trial court for clear error. The 

conclusions of law drawn therefrom are reviewed de novo. Ford v. 

Commonwealth, 628 S.W.3d 147, 156 (Ky. 2021). On appeal, allegations of 

ineffective assistance of counsel are reviewed in a two-part test. Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test was

adopted by the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37

(Ky. 1985). 

The first prong requires the appellant to show that the performance by 

counsel was objectively deficient. The second prong requires a showing that that 

deficient performance resulted in actual prejudice such that there exists a strong 

probability that the outcome of the matter would have been more favorable to the 

appellant without the instance of ineffectiveness. Strickland, 466 U.S. at 687, 104 

S. Ct. at 2064. 

ANALYSIS

 Whether an RCr 11.42 movant is entitled to an evidentiary hearing 

regarding his claim of ineffectiveness is determined under a two-part test. First, 

the movant must show that the “alleged error is such that the movant is entitled to 
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relief under the rule.” Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001).

So, the trial court must assume that the factual allegations in the motion are true, 

and only after such determination may turn to the question of whether there “has 

been a violation of a constitutional right, a lack of jurisdiction, or such a violation 

of a statute as to make the judgment void and therefore subject to collateral attack.” 

Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky. 1974)). If that determination is 

answered in the affirmative, then an evidentiary hearing is only required when the 

motion raises “an issue of fact that cannot be determined on the face of the record.” 

Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). 

The trial court determined that the allegations made by Hall could be 

refuted by the record. We do not disagree as the allegations were refuted by 

review of the record alone. 

Next, we address Hall’s allegation that trial counsel was ineffective 

for failing to present evidence in mitigation during the sentencing phase. The trial 

court found that the allegation of ineffectiveness was not made with sufficient 

specificity in the motion. We agree with the trial court.

The motion filed in the trial court simply alleged that counsel failed to 

make reasonable investigations into mitigation evidence that could be presented to 

the sentencing jury. There is an acknowledgement that trial counsel’s investigator 
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conducted investigations into the charges Hall faced but alleges that the 

investigator was never tasked with searching for any evidence in mitigation. 

However, even if we were to find that counsel’s performance fell 

below the range of reasonable performance, and we are not, we cannot say that 

there was any prejudice realized from the lack of mitigation evidence presented. 

Hall had a significant criminal history and was found to be a persistent felony 

offender in the first degree. With that finding, the range of sentence was twenty 

years to fifty years, or life. The jury recommended a life sentence, which was 

imposed by the trial court. Given the seriousness of the allegations, it is mere 

speculation that but for the failure to offer mitigation evidence, the sentence 

recommended would have been less than life. 

Further, the only specifics Hall points to are his troubled childhood of 

being raised by an abusive and alcoholic father and his difficulties while in jail 

awaiting trial. However, the psychologist who evaluated him for competency and 

criminal responsibility prior to the trial found that he was feigning deficits and 

psychological symptoms and that he was malingering. Further, Hall offers no 

specificity as to witnesses or testimony which could have been presented at the 

sentencing which might have been mitigating. As the Commonwealth points out, 

it could have been counsel’s reasoned choice not to present this mitigation 
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evidence as such would have invited rebuttal evidence which counsel thought 

would not be in Hall’s best interest. 

Even if we could find that counsel’s performance was deficient, which 

we cannot, we could not disagree with the trial court’s conclusion that Hall was not 

prejudiced. The evidence of his guilt of a heinous crime was overwhelming. The 

victim’s testimony certainly supported the life sentence Hall received. When his 

prior crimes in other jurisdictions are considered – personal crimes including 

kidnapping, abduction, assault, and battery – they further support the sentence 

received. No prejudice can be assumed. 

Hall’s last allegation of error involves counsel’s failure to object to 

the testimony of the housekeeper employed at the hotel where the sexual assault 

took place and her testimony that she threw away blood-stained sheets she took 

from the room. We agree that an objection should have been made to the 

description of the sheet as it was not in evidence and there was no way of proving 

that the blood found on the sheets had any connection to the sexual assault 

allegation. However, we cannot find that but for the short testimony of the 

housekeeper, Hall would have been acquitted. The testimony of the victim, 

coupled with Hall’s confession during his interrogation, was more than sufficient 

evidence upon which to find guilt.
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CONCLUSION

We agree with the trial court’s order that Hall was not entitled to relief 

pursuant to RCr 11.42. He was not prejudiced by the performance of counsel such 

that it can be held, but for any deficient performance of counsel, he would have 

been found not guilty or sentenced to a lesser sentence. The trial court’s order is 

affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Elias Kang-Bartlett

Jacquelyn Bryant-Hayes

LaGrange, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Christina L. Romano

Assistant Attorney General

Frankfort, Kentucky