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RENDERED: JUNE 17, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0041-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-0525

JEFFERSON CIRCUIT COURT NO. 16-CR-000661

ERIC L. GIBSON APPELLEE

MEMORANDUM OPINION OF THE COURT

REVERSING

The Commonwealth appeals the Court of Appeals’ reversal of the 

Jefferson Circuit Court’s denial of Eric L. Gibson’s (Gibson) pro se motion to 

vacate, set aside, or correct his sentence pursuant to RCr1 11.42. After review, 

we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gibson’s underlying convictions are the result of two separate 

indictments, 16-CR-0661 and 17-CR-1799.

The first, 16-CR-0661, charged Gibson with being a convicted felon in 

possession of a firearm, receiving a stolen firearm, and being a first-degree 

persistent felony offender (PFO I). Gibson was arrested outside The Executive 

 

1 Kentucky Rule of Criminal Procedure. 
2

Club, a nightclub, in the early morning hours of January 24, 2016. Gibson, a 

convicted felon, was in possession of a firearm upon his arrest. Subsequently, 

the firearm was discovered to have been reported stolen. A trial on those 

charges was scheduled for February 14, 2017. However, in October of 2016, 

Gibson failed to return to the Jefferson County Jail after being released as a 

work aide. He was apprehended five months later at which time he was

charged with second-degree escape under indictment 17-CR-1799. 

A plea colloquy on both indictments was held in November of 2017. In 

exchange for Gibson’s guilty plea on all the outstanding charges, the 

Commonwealth offered to amend the PFO I charge down to a second-degree 

persistent felony offender charge (PFO II). In addition, it would recommend five 

years each on the charges of receiving a stolen firearm and felon in possession 

of a firearm—both enhanced to ten years each by virtue of the PFO II charge—

to run concurrently for a total of ten years. It would also recommend five years 

on the second-degree escape charge, which had to run consecutively to the 

other charges by law. Gibson’s guilty plea would therefore result in a fifteenyear sentence with parole eligibility after he had served 20% of his sentence 

due to the PFO II charge, as opposed to serving a minimum of ten years which 

would have been the result of a PFO I conviction.

2

Before accepting Gibson’s guilty plea, the trial court established that 

Gibson had a twelfth-grade education and could read and write. The court 

 

2 See Kentucky Revised Statute (KRS) 532.080(6)(b).
3

then placed Gibson under oath and conducted a typical Boykin3 line of 

questioning. Gibson represented to the court that he was satisfied with his 

attorney’s advice, that he had all the time he needed to talk to his attorney, 

and that as far as he knew his attorney had done all that Gibson had asked 

him to do. Gibson further affirmed that he read, understood, and went over 

the plea agreements with counsel before signing them. Gibson was not under 

the influence of anything during the plea colloquy and had never been treated 

for mental health issues, nor had he ever been found to be incompetent by a 

court. The court explained Gibson’s rights as a criminal defendant to him, and 

he acknowledged that he was giving up those rights, save for his right to an 

attorney, by pleading guilty. Gibson further agreed that he knew what he was 

doing by pleading guilty, and felt that doing so was in his best interest. And, 

no one had coerced him into pleading guilty or made any promises to him for 

pleading guilty. 

The trial court accepted Gibson’s pleas of guilty to receiving a stolen 

handgun, being a felon in possession of a handgun, second-degree escape, and 

being a PFO II. The court scheduled final sentencing for January of 2018. No 

motion to withdraw the plea was filed in the interim.4 At sentencing, the trial 

court sentenced Gibson in accordance with the Commonwealth’s 

recommendations: a total of fifteen years imprisonment, with parole eligibility

 

3 Boykin v. Alabama, 395 U.S. 238, (1969).

4 See RCr 8.10 (“At any time before judgment the court may permit the plea of 

guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted.”).
4

after serving 20% of his sentence. The trial court noted Gibson already had

accumulated 571 days of time served. 

Eight months later, in September of 2018, Gibson filed a pro se motion to 

vacate, set aside, or correct his sentence under RCr 11.42. The trial court

denied the motion without holding an evidentiary hearing. A divided Court of 

Appeals reversed the trial court and held that an evidentiary hearing on 

Gibson’s motion was necessary. The Commonwealth now appeals that ruling 

to this Court. 

Additional facts are discussed below as necessary. 

II. ANALYSIS

Gibson asserts that the trial court erred by denying his RCr 11.42 

motion. Specifically, he alleges that his counsel’s performance was ineffective 

to the point of rendering his guilty plea invalid, and that his plea should 

therefore be vacated. The United States Supreme Court ruled in Strickland v. 

Washington that

[a] convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence 

has two components. First, the defendant must show that 

counsel's performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not functioning 

as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense.5 

 

5 466 U.S. 668, 687, (1984).
5

When a defendant pleads guilty, he must satisfy the “prejudice prong” of the 

Strickland test by showing “that there is a reasonable probability that, but for 

counsel's errors, he would not have pleaded guilty and would have insisted on 

going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must 

determine “whether the allegations in the motion can be resolved on the face of 

the record, in which event an evidentiary hearing is not required.”

7 An RCr 

11.42 motion 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.”

8 A trial court must dismiss an RCr 11.42 motion that lacks this 

requisite specificity.

9 When addressing a trial court’s denial of an RCr 11.42 

motion, we review a trial court’s factual findings for clear error and its 

application of law to the facts de novo.

10 

Gibson primarily presents two arguments: (1) that his counsel failed to 

raise a choice of evils defense; and (2) that his counsel allowed him to plead 

 

6 Hill v. Lockhart, 474 U.S. 52, 58–59, (1985), accord Bronk v. Commonwealth, 

58 S.W.3d 482, 486-87 (Ky. 2001) (“A showing that counsel's assistance was 

ineffective in enabling a defendant to intelligently weigh his legal alternatives in 

deciding to plead guilty has two components: (1) that counsel made errors so serious 

that counsel's performance fell outside the wide range of professionally competent 

assistance; and (2) that the deficient performance so seriously affected the outcome of 

the plea process that, but for the errors of counsel, there is a reasonable probability 

that the defendant would not have pleaded guilty, but would have insisted on going to 

trial.”).

7 Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).

8 RCr 11.42(2). 

9 Id. 

10 Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012).
6

guilty to a crime he did not commit. Attendant to these arguments are 

Gibson’s claims that his counsel did not know the law and failed to conduct a 

proper pre-trial investigation of the facts.

11 We will address each argument in 

turn. 

Gibson first asserts that his counsel failed to raise a choice of evils 

defense. When “the alleged error of counsel is a failure to advise the defendant 

of a potential affirmative defense to the crime charged, the resolution of the 

‘prejudice’ inquiry will depend largely on whether the affirmative defense likely 

would have succeeded at trial.”12

The choice of evils statute, KRS 503.030, provides in pertinent part:

[u]nless inconsistent with the ensuing sections of this code 

defining justifiable use of physical force or with some other 

provisions of law, conduct which would otherwise constitute an 

offense is justifiable when the defendant believes it to be necessary 

to avoid an imminent public or private injury greater than the 

injury which is sought to be prevented by the statute defining the 

offense charged[.]13

Gibson contends that a choice of evils defense would have been available to 

him because he feared an imminent attack by an unknown assailant at The 

Executive Club. He claims this was the sole reason he asked a friend to give 

him the stolen gun he was ultimately caught with. Gibson’s RCr 11.42 motion 

expounded that

counsel had a duty to investigate pretrial where and how movant 

had obtained the alleged handgun which had been found on his 

 

11 These arguments were properly preserved by his RCr 11.42 motion. See RCr 

9.22. 

12 Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009).

13 KRS 503.030(1).
7

person after the caller called the police. Movant had explained to 

his attorney that he had got into an argument with a guy in the 

club, the guy pulled a gun on him and his fiancé, the guy walked 

outside of the club behind movant and his fiancé, still pointing the 

weapon at him stating he would shoot both of them. When movant 

and his fiancé exited the club, movant obtained a weapon from a 

friend to potentially protect himself and his fiancé from the 

aggressor...if [counsel] had conducted sufficient investigation of the 

incident early on he would have uncovered these pertinent facts 

regarding the incident[.]

[C]ounsel should had (sic) raised the defense of Choice of Evils 

where evidence clearly existed that movant’s conduct was 

necessitated by a specific and imminent threat of injury to his 

person under circumstances which left him no reasonable and 

viable alternative, other than the violation of the law for which he 

stands charged. The danger presented to movant in the Executive 

Club by the unknown potential assailant who accosted movant and 

his fiancé and followed them from out of the club behind them was 

compelling and imminent, constituting set of circumstances which 

afforded him little or no alternative other than the commission of 

the act which otherwise would be unlawful.

This was a spur of the moment situation in which if he would not 

had armed himself right away he almost certainly would had been 

shot right then and there on the spot before the police were called 

to diffuse the situation, locking up movant because the other 

Individual managed to slip away from the police confrontation 

before being singled out as the initial aggressor and instigator of 

the entire incident.

However, as the trial court correctly found, the record directly refutes Gibson’s 

claim. Two 911 calls were included in discovery. At around 3:30 a.m., the 

owner of The Executive Club called 911 and asked for the police. The owner 

explained that there was a man waiting outside of the club with a gun in his 

left front pocket, and that he said he was waiting on someone to come out of 

the club so that he could shoot them. The man was standing outside of the 

club waiting for the duration of the four-minute call. 
8

The second 911 call was from a male. The caller told dispatch that there 

was a man waiting outside The Executive Club who claimed he was going to 

shoot someone when they came out. By the time the second call was made, 

the police were already arriving on the scene from the first call. The caller 

watched the police stop the man he was calling about while he was on the 

phone with dispatch. The man police arrested that morning was Gibson, and 

the arrest citation noted that he had a handgun sticking out of the left pocket 

of his pants. 

Thus, the record directly refutes Gibson’s claim that he feared for his life 

because an unknown assailant followed him and his fiancé out of the club with 

a gun pointed at them. Accounts from two independent eyewitnesses claimed 

Gibson was waiting for someone outside of the club for at least four minutes

with the intent to shoot that person when they came outside. Therefore, it is 

highly unlikely that a choice of evils defense would have even been available to 

him at trial, let alone be successful. Accordingly, the trial court did not err by 

finding that Gibson’s guilty plea was not rendered invalid due to counsel’s 

failure to raise a choice of evils defense. 

Gibson next contends that counsel allowed him to plead guilty to a crime 

he could not have committed. Specifically, that Gibson did not know or have 

reason to know that the gun was stolen. Therefore, he argues, he could not be 

convicted of receiving a stolen firearm, which requires that he knew or had 
9

reason to know that the gun was stolen.

14 More specifically, his RCr 11.42 

motion maintained that 

he did not have the requisite knowledge to commit the charged 

offense because he just asked a friend for the weapon because he 

felt that the encounter he had with the individual earlier had 

reached a boiling point to where he needed protection to arm 

himself. He did not know the handgun was stolen, nor did he have 

reason to believe it had been stolen which are elemental factors to 

committing the offense.

If his trial attorney had conducted basic research which was 

fundamental to his case, investigated the facts of this case and 

applied the law of the statutory provision he would had discovered 

that movant could not had been charged with the offense of 

receiving stolen property to begin with, a crime he certainly did not 

commit.

It is clear beyond cavil that trial counsel failed to investigate the 

case [and] interview movant...instead of allowing movant to plead 

guilty to an offense he did not have the requisite knowledge of 

having committed where he in no way knew or had reason to 

believe that it was stolen, thus, if he not pled guilty but would had 

insisted on taking his case to trial he would not had been 

convicted of such offense.

Moreover, movant’s trial attorney was ignorant to the point of law 

concerning the statutory elements of “knowing” within KRS 

514.110, combined with his failure to perform basic research on 

that point of law demonstrates unreasonable performance under 

Strickland. This is deficient performance. Prejudice is applied in 

this case when counsel coaxed and coerced movant into pleading 

guilty to an offense he did not commit, KRS 514.110, where he 

received five (5) years, a Class D felony, something he had no 

knowledge that the firearm was stolen, or had reason to believe it 

had been stolen which was something trial counsel failed to 

explain to movant.

 

14 KRS 514.110(1) (“A person is guilty of receiving stolen property when he 

receives, retains, or disposes of movable property of another knowing that it has been 

stolen, or having reason to believe that it has been stolen, unless the property is 

received, retained, or disposed of with intent to restore it to the owner.”)
10

The Court of Appeals majority held that Gibson’s argument was 

sufficiently specific to warrant an evidentiary hearing. In particular, it held:

[w]e believe a hearing is necessary in this case. The arguments 

raised by Appellant are specific in that they claim trial counsel 

made no effort in this case. Appellant’s interactions with his 

counsel are not apparent from the record and would need to be 

investigated at a hearing. 

Appellant’s arguments can be boiled down to the allegation that 

trial counsel made no investigation into the case...Appellant’s 

interactions with his trial counsel can only be determined by a 

hearing. Appellant has alleged counsel did not investigate the 

case, interview witnesses or Appellant himself, discuss the 

elements of the crimes with which he was charged, or discuss 

possible defenses. Whether these allegations are true cannot be 

determined from the record as it is now.15

We disagree with this holding.

First, Gibson’s motion was not sufficiently specific to satisfy RCr 11.42;

Roach v. Commonwealth is instructive.16 Roach challenged the voluntariness of 

his guilty plea based on his counsel’s failure to file a motion to suppress a 

recorded phone call between Roach and his girlfriend during which he made 

incriminating statements.17 Roach claimed the phone call would have been 

suppressed because his girlfriend’s consent to record the conversation was 

coerced by the police.18 This Court held:

Roach has failed to specify facts supporting his claim that the 

girlfriend's consent was “coerced.” He asserts that the police 

 

15 Gibson v. Commonwealth, 2019-CA-000525-MR, 2020 WL 113935, *2 (Ky. 

App. Jan. 10, 2020).

16 384 S.W.3d 131 (Ky. 2012).

17 Id. at 139-40.

18 Id. at 140.
11

somehow threatened the girlfriend, but he fails to allege the 

threat with any particularity, and it is that level of factual 

specificity that RCr 11.42(2) requires, for without it the trial 

court cannot tell whether an evidentiary hearing is necessary. 

If general allegations such as “her consent was coerced by police” 

were sufficient, RCr 11.42 would easily be turned into a discovery 

device, a result which we have several times noted is contrary to 

the rule's purpose. Because Roach's motion did not satisfy RCr 

11.42(2)'s specificity requirement, it was subject under the rule to 

“summary dismissal,” as the courts below correctly held.19

The Roach Court noted that the level of particularity that RCr 11.42 requires 

would have included, for example: “when the girlfriend was threatened; where 

she was physically at the time of the threat; who else was present; who made 

the threat or, if the identity of the police officer was unknown, a physical 

description of the person; and the substance of the threat.”20

Here, the Court of Appeals found that RCr 11.42’s specificity requirement 

was met by Gibson’s claim that “trial counsel made no effort in this case.”21 

We cannot dispute the logic behind the Court of Appeals’ holding: certainly, 

there is no way to know from the record whether Gibson and his counsel 

discussed if Gibson knew the gun was stolen, or whether counsel knew that 

knowledge was an element of receiving a stolen firearm. However, the Court of 

Appeals failed to recognize that Gibson’s motion was not sufficiently specific for 

the trial court to find that an evidentiary hearing was necessary. Gibson’s 

motion stated that he “asked a friend for the weapon” because he believed “the 

 

19 Id. (emphasis added). 

20 Id., n.1.

21 Gibson, at *2.
12

encounter he had with the individual earlier had reached a boiling point to 

where he needed protection to arm himself.” But Gibson failed to provide the 

name of his “friend” or even a clear timeline of when he got the gun from his 

friend. He also provided no facts to support that he did not know or have 

reason to know that the gun was not stolen; for example, that he knew the 

friend who gave him the gun always carried a gun legally registered to that 

friend. The bare assertion that he did not know or have reason to know that 

the gun was stolen was not sufficiently specific to warrant an evidentiary 

hearing. 

Notwithstanding, even if we were to hold that Gibson made a sufficient 

showing under the “performance prong” of Strickland, Gibson has failed to 

demonstrate that he was prejudiced by his guilty plea. As Judge Maze 

discussed in his dissent, the Court of Appeals majority altogether failed to 

address the prejudice component of Strickland.

22 This was error, as “[a]n error 

by counsel, even if professionally unreasonable, does not warrant setting aside 

the judgment of a criminal proceeding if the error had no effect on the 

judgment...any deficiencies in counsel's performance must be prejudicial to the 

defense in order to constitute ineffective assistance under the Constitution.”23 

 

22 Id. at *3.

23 Strickland, 466 U.S. at 691–92.
13

In that vein, Gibson must demonstrate “that there is a reasonable 

probability that, but for counsel's errors, he would not have pleaded guilty and 

would have insisted on going to trial.”24 Moreover, 

a petitioner must convince the court that a decision to reject the 

plea bargain would have been rational under the circumstances. 

As noted above, at the pleading stage it is movant's burden to 

allege specific facts which, if true, would demonstrate prejudice. 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[.]25

Gibson’s decision to plead guilty in this case guaranteed that he would 

be sentenced to fifteen years, with parole eligibility after serving 20% of his 

sentence. To reach this deal, the Commonwealth recommended the minimum 

sentence for the charge of felon in possession of a handgun,26 and amended 

Gibson’s charge of being a PFO I down to a PFO II. In contrast, had Gibson 

insisted on going to trial, he risked being sentenced to the maximum on each 

charge in addition to a PFO I enhancement:27 10 years for being a felon in 

possession of a handgun; 5 years for receiving a stolen firearm;28 5 years for 

 

24 Lockhart, 474 U.S. at 58–59.

25 Stiger, 381 S.W.3d at 237 (internal citations and quotation marks omitted).

26 Being a felon in possession of a handgun is a Class C felony. KRS 527.040. 

Class C felonies have an available sentence of no less than five and no more than ten 

years. KRS 532.060(2)(c).

27 We recognize that a charge of being a felon in possession of a firearm is 

frequently severed and tried separately from other charged offenses. But for the 

purpose of this argument we assume all of the charges would be tried together. 

28 Receiving a stolen firearm is a Class D felony. KRS 514.110(2)(c) (amended 

2021. Class D felonies have an available sentence of no less than one and no more 

than five years. KRS 532.060(2)(d).
14

second-degree escape.29 His sentence would have then been enhanced by his 

PFO I charge, which would require him to be “sentenced to an indeterminate 

term of imprisonment, the maximum of which shall not be less than ten (10) 

years nor more than twenty (20) years.”30

Further, had he gone to trial, Gibson’s defense to the charge of receiving 

a stolen firearm would have been that he did not know or have reason to know 

that the gun was stolen. Presumably, the only way Gibson could present this 

defense to the jury would be to testify on his own behalf. A “prosecutor is 

entitled to attack a defendant's credibility if the defendant testifies as a witness 

on his own behalf.”

31 Gibson’s previous felony convictions were ample. In 

relevant part, Gibson was convicted in 2003 of one count each of first-degree 

robbery, attempted murder, second-degree assault, and possession of a firearm 

by a convicted felon, as well as four counts of wanton endangerment. Gibson

was sentenced to twenty-two-years for those crimes, but was apparently 

released early. In addition, he was convicted of being a felon in possession of a 

firearm in 1996, and of second-degree escape in 1994. Though these 

convictions were more than ten years old, if the trial court ruled that their 

probative value substantially outweighed their prejudicial effect, there is a 

 

29 Second-degree escape is a class D felony. KRS 520.030(2). Class D felonies 

have an available sentence of no less than one and no more than five years. KRS 

532.060(2)(d).

30 KRS 532.080(6)(b).

31 Tamme v. Commonwealth, 973 S.W.2d 13, 39 (Ky. 1998).
15

possibility that one or all of them could be introduced at trial.32 Testifying on 

his own behalf could therefore present a very high risk of harming his 

credibility with the jury.

Consequently, Gibson has failed to demonstrate that foregoing his plea 

deal and insisting on going to trial would have been a rational decision.

Accordingly, Gibson has failed to prove that he was prejudiced by any 

deficiency in his counsel’s performance, and we must reverse. 

III. CONCLUSION

Based on the foregoing, we reverse the Court of Appeals.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

James C. Shackelford

Assistant Attorney General 

COUNSEL FOR APPELLEE:

Eric L. Gibson

 

32 See KRE 609(b) (“Evidence of a conviction under this rule is not admissible if 

a period of more than ten (10) years has elapsed since the date of the conviction 

unless the court determines that the probative value of the conviction substantially 

outweighs its prejudicial effect.”).