RENDERED: OCTOBER 1, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0899-MR

TRENDON GORMAN APPELLANT

APPEAL FROM MCCRACKEN CIRCUIT COURT

v. HONORABLE TIMOTHY KALTENBACH, JUDGE

ACTION NO. 16-CR-00631

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, 

JUDGES.

THOMPSON, L., JUDGE: Trendon Gorman (“Appellant”) appeals from an order 

of the McCracken Circuit Court denying his motion to vacate a judgment pursuant 

to Kentucky Rules of Criminal Procedure (“RCr”) 11.42. He argues that he 

received ineffective assistance of counsel when his trial attorney gave him 

incorrect advice regarding his sentence, parole eligibility, and the defenses he was 
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waiving. In addition, he argues his trial counsel was ineffective when counsel 

failed to investigate the victim’s recantation and failed to have his competency 

evaluated. Appellant also argues that he was improperly denied an evidentiary 

hearing. For the reasons addressed below, we find no error and affirm the order on 

appeal.

FACTS AND PROCEDURAL HISTORY

On October 31, 2016, Appellant was charged with two counts of 

sodomy in the first degree.1 The charges arose from an allegation that Appellant 

had sexual contact with a ten-year-old boy on October 5 and October 6, 2016. 

Appellant was seventeen years old at the time of the offenses and was certified as a 

youthful offender.

On January 30, 2017, Appellant entered a guilty plea to both amended 

charges of first degree sexual abuse, victim under twelve2in exchange for the 

Commonwealth’s recommended sentence of eight years in prison on each count to 

be run concurrently. Appellant participated in the guilty plea colloquy

acknowledging that he understood the charges, was not coerced into pleading 

guilty, and was happy with his lawyer’s representation. Appellant also 

acknowledged that pursuant to the plea agreement, he would be subject to a five-

 

1 Kentucky Revised Statutes (“KRS”) 510.070.

2 KRS 510.110.
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year conditional discharge, would be required to register as a sex offender for life, 

and would be required to complete the sex offender treatment program. As part of 

the plea, Appellant waived his right under the uniform juvenile code to be 

sentenced as a juvenile. On May 5, 2017, Appellant was sentenced to eight years 

in prison as recommended by the Commonwealth.

Appellant, pro se, then moved to vacate his sentence pursuant to RCr 

11.42. He argued that he should not be required to register as a sex offender under 

Kentucky Revised Statute (“KRS”) 17.500(5) as required by the plea agreement 

because he was a juvenile when he committed the offenses. He also argued that 

his trial counsel incorrectly told him that he would be paroled after serving twenty 

percent of his sentence, and that counsel was ineffective in failing to investigate a

reported recantation by the victim. Lastly, Appellant argued that his counsel was 

ineffective in failing to request a competency examination. The matter proceeded 

in McCracken Circuit Court, resulting in an order denying the motion entered on 

June 19, 2020. This appeal followed.

ARGUMENTS AND ANALYSIS

Appellant, though counsel, now argues that the circuit court 

committed reversible error in failing to conclude that his trial counsel gave him 

incorrect advice regarding his sentence, parole eligibility, and the requirement that 

he complete the sex offender treatment program. Appellant asserts that his counsel 
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gave ineffective assistance in advising Appellant that he would be required to serve

only twenty percent of his eight-year sentence and failed to advise him of the 

defenses he was waiving. Specifically, Appellant asserts that during his juvenile 

transfer hearing, his trial counsel asked no significant questions of the 

Commonwealth’s witnesses, presented no evidence, and made no arguments to 

keep Appellant’s case in the juvenile system. Appellant also contends that his 

counsel improperly failed to investigate the victim’s recantation and was 

ineffective in failing to request a competency evaluation. Finally, Appellant argues 

that the circuit court erred in denying him an evidentiary hearing on the RCr 11.42 

motion. He requests an opinion vacating his conviction or remanding the matter 

for an evidentiary hearing.

To prevail on a claim of ineffective assistance of counsel, Appellant 

must show two things:

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. 

This requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.
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Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 

674 (1984). “[T]he proper standard for attorney performance is that of reasonably 

effective assistance.” Id. 

An 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. 

The purpose of the Sixth Amendment guarantee of 

counsel is to ensure that a defendant has the assistance 

necessary to justify reliance on the outcome of the 

proceeding. Accordingly, any deficiencies in counsel’s 

performance must be prejudicial to the defense in order 

to constitute ineffective assistance under the Constitution. 

Id. at 691-92, 104 S. Ct. at 2066-67 (citation omitted). “It is not enough for the 

defendant to show that the errors had some conceivable effect on the outcome of 

the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. 

Ct. at 2068. Additionally, “a hearing is required only if there is an issue of fact 

which cannot be determined on the face of the record.” Stanford v. 

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

As for Appellant’s claim that he would have rejected the plea offer 

and gone to trial but for the advice that counsel gave him on sentencing, parole 

eligibility, and his juvenile status, he must allege facts that if true would 
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demonstrate that the decision to reject the plea would have been rational. Stiger v. 

Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). In addressing this issue, the 

McCracken Circuit Court determined that the rejection of the plea offer based on 

counsel’s sentencing, parole eligibility, and juvenile status advice would not have 

been rational. Prior to the plea offer, Appellant was faced with the prospect of life 

in prison with a minimum parole eligibility of twenty years. With the plea, 

Appellant received eight years in prison with a minimum parole eligibility of 

twenty percent. We find no error in the circuit court’s conclusion that Appellant 

would not have rationally rejected the plea offer and gone to trial but for counsel’s 

purportedly deficient advice. Rather, Appellant chose the rational option by 

avoiding the risk of a decades-long prison sentence. In addition, Appellant 

expressly acknowledged as part of the guilty plea colloquy that by accepting the 

plea, he understood that he would be a registered sex offender for life and would 

have to complete the sex offender treatment program. We find no error.

As to Appellant’s assertion that counsel improperly failed to 

investigate the victim’s recantation, we also find no error. The victim originally

told his grandmother that Appellant made him perform a sex act. According to a 

McCracken County Sheriff’s report, the victim subsequently told his grandmother 

that he was only joking about the allegation after she told him he could no longer 

go to Appellant’s house to play video games. Appellant argues that his trial 
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counsel should have investigated this matter more thoroughly, and that such an 

investigation might have resulted in a different outcome.

Trial counsel has a duty to conduct a reasonable investigation of the 

law and the facts. Commonwealth v. Rank, 494 S.W.3d 476, 485 (Ky. 2016). But 

as noted by the circuit court, vague claims of an improper failure to investigate are 

insufficient to warrant an evidentiary hearing and justify summary dismissal of the 

RCr 11.42 proceeding. 

Appellant has acknowledged that his trial counsel was aware of the 

purported recantation months before Appellant chose to plead guilty. He does not 

allege what a further investigation would have accomplished. Again, had he 

rejected the plea offer to pursue what he characterizes as the victim’s recantation, 

Appellant would have risked a jury trial, a guilty verdict, and a much longer term 

of imprisonment. A mere conclusory claim that the outcome of the proceeding 

would have been different but for the alleged error, taken alone, is not sufficient to 

support a finding of ineffective assistance. Stiger, 381 S.W.3d at 237. We find no 

error.

Appellant next argues that he received ineffective assistance when his 

trial counsel failed to have him evaluated to determine his competency. He directs 

our attention to the “Referral to County Attorney” form found at page 11 of the 

record, which indicates that Appellant received a score of eight on the “GAIN-SS” 
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mental health screening. The notation on the form states that a score of six or 

higher indicates that the individual “needs assessment for further 

counseling/treatment.” Appellant also asserts that he is bipolar and has attention 

deficit hyperactivity disorder (“ADHD”). He argues that these facts should have 

signaled to his trial counsel that he may not be competent to understand the legal 

proceedings or to make informed decisions. Appellant cites case law and statutory 

law for the requirement that the proceedings shall be stayed for a determination of 

competency if there are reasonable grounds to believe that the defendant lacks the 

capacity to appreciate the nature and consequences of the proceeding and/or to 

participate in his defense. Appellant asserts that such grounds existed prior to his 

acceptance of the plea agreement and that trial counsel did not provide effective 

assistance in failing to seek a competency hearing.

 [A] defendant is competent if he can consult with 

his lawyer with a reasonable degree of rational 

understanding and has a rational as well as factual 

understanding of the proceedings against him. . . . [A] 

competent defendant can make a reasoned choice among 

the alternatives available to him when confronted with 

such crucial questions as whether he should testify, waive 

a jury trial, cross-examine witnesses, put on a defense, 

etc.

Commonweath v. Wooten, 269 S.W.3d 857, 864 (Ky. 2008) (internal quotation

marks and citation omitted). The question before us, then, is not whether 

Appellant’s GAIN-SS score, bipolar illness, and ADHD entitle him to a 
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competency hearing, but whether he has a reasonable degree of understanding of 

the proceedings and can make reasoned choices among the alternatives available to 

him. Id. When questioned during the guilty plea hearing, Appellant’s trial counsel 

stated that he spoke with Appellant for about four hours and Appellant “very 

intelligently went over all his evidence, showed very good reasoning, and he 

understands it.” Appellant, when questioned, stated that he had no problems 

understanding what was happening at the hearing. In addition, the circuit court 

noted that Appellant readily pleaded guilty, was very satisfied with counsel’s 

representation, and that there was no evidence that Appellant was coerced or failed 

to understand the consequences of his plea.

We have no basis for concluding that Appellant’s trial counsel failed 

to provide competent representation in not seeking a competency hearing. Further, 

Appellant has not shown that the failure to question his competency prejudiced the 

proceedings against him. Appellant failed to prove the elements of Strickland, 

supra, and we find no error.

Lastly, Appellant argues that the circuit court committed reversible 

error in failing to conduct an evidentiary hearing. An evidentiary hearing is 

required on an RCr 11.42 motion when there is a material issue of fact which 

cannot be conclusively proved or disproved by an examination of the record. 

Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Appellant does not 
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reveal with specificity, however, which issue of material fact requires more than 

reference to the record. Rather, he points in general terms to “various instances of 

ineffective assistance of counsel” which he asserts require a hearing. We find no 

error in the McCracken Circuit Court’s conclusion that the issues before it were 

justiciable by reference to the record and without an evidentiary hearing.

CONCLUSION

Appellant did not demonstrate that his trial counsel made errors so 

serious that he was not functioning as the “counsel” guaranteed to Appellant by the 

Sixth Amendment. Further, Appellant failed to show the deficient performance 

prejudiced the defense, i.e., that counsel’s errors were so serious as to deprive him 

of a fair proceeding. Finally, all issues of material fact could be proved or 

disproved by reference to the record; therefore, Appellant was not entitled to an 

evidentiary hearing. For these reasons, we affirm the order of the McCracken 

Circuit Court denying Appellant’s motion for RCr 11.42 relief from judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT:

J. Ryan Chailland

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Perry T. Ryan

Assistant Attorney General

Frankfort, Kentucky