RENDERED: JANUARY 7, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# C ommonwealth o f Kentucky Court of Appeals

NO. 20 21

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ZAYER ANTONIO ADAMS APPELLANT

APPEAL FROM CHRISTIAN CIRCUIT COURT v. HON ORABLE ANDREW C. SELF , JUDGE ACTION NO

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- 0 0379

COM MONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2021

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ZAYER ANTONIO ADAMS APPELLANT

APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE ANDREW C. SELF, JUDGE ACTION NO. 16

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COMMONWEALTH OF KENTUCKY APPELLEE- 2

- OPINION AFFIRMING

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BEFORE: ACREE , JONES , AND K. THOMPSON , JUDGES

. JONES , J UDGE: Zayer Adams appeals from the Christian Circuit Court ’ s o rder d enying his m otion to v acate his s entence pursuant to RCr 1 11.4 2

. After a thorough review of the record, w e affirm

. I. B ACKGR OUND A thorough recitation of the facts of this case may be fou nd in the Kentucky Supreme Court’s unpublished opinion on Adams’s direct appeal. Adams v. Commonwealth , No. 2016

- SC

- 000627

- MR , 2017 WL 6379489 (Ky. Dec. 14, 2017). Briefly stated, Adam s wa s char ged for severely beating his ex

- wife, Stephanie Shakoor, while h olding her captive in her apartment on the morning of February 4, 2016 , and attempting to flee from the police after they arrived at the apartment in response to a neighbor’s call. Id . at *1. Shakoor suffered numerous injuries, including swelling, bruisi ng, corneal abrasion, and fractures to the maxillary bones and the bones adjacent to the sinus cavity; these latter injuries resulted from Adams repeatedly kicking Shakoor in the fac e. Adams was thereafter convicted at jury trial for second

- degree assault , first

- degree fleeing or evading police, first

- degree unlawful imprisonment, and being a first

- degree

1 Kentucky Rules of Crimi nal Procedure.- 3

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persistent felony offender. Id

. The jury recommended a sentence of fifteen ye ars for th e assault conviction , to be served consecutively with a seven

- ye ar sentence for unlawful imprisonment; however, the trial court imposed a concurrent sentence of twenty years in order to comply with KRS 2 532.110(1)(c). Id

. The Kentucky Supreme C ourt affir med Adams’s judgment and sentence on direct appeal. Id . at *5. Adams subsequently filed a pro se motion to vacate his conviction under RCr 11.42 , arguing he suffered ineffective assistance of counsel during his trial

. Adams specifically conten ded, inter alia , that trial counsel failed to investigate his mental healt h issues in order to present mitigating evidence to the jury during the penalty phase. (Record (R.) at 77.) The trial court appointed post

conviction counsel to assist Adams and he ld an evid entiary hearing on July 7,
2020. During the evidentiary heari ng, A dams’s trial counsel testified about his prior knowledge of Adams’s mental health and about counsel’s preparation for
trial . H e testified he was aware Adams had some mental hea lth issues , and he had investigated the matter by reviewing a recent distr ict court case in which the district court had found Adams competent following a psychological evaluation

. Trial counsel stated he wanted Adams to get an evaluation from the Kentuck y

2 Kentucky Revised Statutes.- 4

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Correcti onal Psychiatric Center (KCPC), but Adams did not wish to pursue the competency issue further. Additionally , trial counsel testified about how difficult it was for him to investigate and prepare for the penalty phase of the trial because Adams d id not wis h to discuss mitigation in general or to reveal information abou t his childhood. Even so, trial counsel testified that he tried to contact Adams’s mother in preparation for trial. The last known address trial counsel was able to find for Adams’ s mother w as a homeless shelter, but he was unable to locate her there. Next, Adams’s trial counsel testified about his preparation for trial and the speed at which Adams’s case progressed. Trial counsel admitted that the case moved very fast and that he would h ave preferred to have more time to prepare for trial. He explai ned that Adams was insistent on moving things along quickly and that Adams opposed trial counsel’s plans to ask the court f or a continuance.

Adams also testified at the RCr 11.42 evid entiary hearing. He asserted his mother had “a mental defect” a nd that he suffered from a similar condition. He described his upbringing, his mental health medications, how he was not able to read or write, and how his mother was not at his tri al. Adams also admitted he asked for a fast and speedy trial because he n eeded medical treatment for an injury to his hand, though his testimony was unclear regarding how the se- 5

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two items were connected. In addition to his testimony, Adams submitted a col lective ex hibit to the court containing documents dating from the early 19 80s from Pennyroyal Center , in which Adams was diagnosed as low

- functioning and suffering from attention deficit disorder

. 3 T he trial court ultimately denied Adams’s RCr 11.42 motio n. This a ppeal followed.
II. A NALYSIS A successful petition for relief unde r RCr 11.42 based on ineffective assistance of counsel must survive the twin prongs of “ performance ” and

“ prejudice ” provided in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 20 52,
80 L. Ed. 2d 674 (1984) , accord Gall v. Commonwealth , 702 S.W.2d 37 (K y. 1985). The “ performance ” prong of Strickland requires as follows:

Appellant must show that counsel ’ s performance was deficient. This is done by showing that counsel made error s so serious that counsel was not functioning as the

“ counsel ” guaranteed th e defendant by the Sixth Amendment, or that counsel ’ s representation fell below an objective standard of reasonableness. Parrish v. Commonwealth , 272 S.W.3d 161, 168 (Ky. 2008) ( internal quotation marks a nd citations omitted). The “ prejudice ” prong req uires a showing that

“ counsel ’ s errors were so serious as to depriv e the defendant of a fair trial , a trial

3 The Pennyroyal C enter provides mental health and related services to individuals in western Kentucky.- 6

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whose result is reliable

. ” Commonwealth v. McGorman , 489 S.W.3d 731, 73 6 (Ky. 2016) ( quoting Strickland , 466 U.S. at 687, 104 S. Ct. at 20 64 ).

B oth Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted

. “ Unless a defendant makes both showings, it cannot be said that the convicti on . . . resulted from a brea kdown in the adversary process that
renders the result unreliabl e. ” Strickland , 46 6 U.S. at 687, 104 S. Ct. at 2064

. This is a very difficult standard to meet. “ Surmounting Strickland ’ s high bar is never an easy task. ” Padilla v. Kentucky , 559 U.S. 356 , 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). We r evi ew counsel’s performance under Strickland de novo

. McGorman , 489 S.W.3d at 736

.

For his sole issue on appeal, Adams contends his trial counsel was ineffective in his failure to i nvestigate a nd prepare for the penalty phase of Adams’s trial, particularly in his failure to present evidence to mitigate Adams’s punishment

. Adams argues a competent attorney would have gathered documents similar to the ones in the collective exhibit an d presented them to the jury, and the
failure of trial counsel to do so was deficient performance

. Furthermore, Adams contends he suffered prejudice as a result of counsel’s performance, pointing to the fact that his jury recommended a consecutive sentenc e which exce eded the limits imposed by statute.- 7

- In its order denying the RC r 11.42 motion, the trial court determined that, “[o]ther than possibly introducing records from the Pennyroyal Center from the 1980 ’ s

– w hich may or may not have been admissible

– i t is unclear wh at else Adams believes his trial counsel should have done.” (R. at 148.) The trial court also found that trial counsel’s “investigation and preparation were sufficient and reasonable” in light of Adams’s unwillingness to assist with prep arations for the penalty phase. Id . We agree.

“ In any case presenting an ine ffectiveness claim, the performance inquiry must be whether counsel ’ s assistance was reasonable considering all the circumstances. ” Strickland , 46 6 U.S. at 688, 104 S. Ct. at 20 65 . However,

[t] he 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 defendan t and on informat ion supplied by the defendant. In particular, what investigatio n decisions are reasonable depends critically on such information. Id . at 691, 104 S. Ct. at 2066

. Adams’s trial counsel testified how Adams did not wish to engage with him on questions rega rding his childhood or on mitigation generally. Trial counsel a ttempted to locate Adams’s mother as a mitigation witness, but she could not be found at her last known address

. Finally, Adams opposed any kind of continuanc e, further hinde ring what actions counsel could undertake on his behalf. Trial counsel nonethele ss attempted to provide mitigation- 8

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information to the jury through Adams’s testimony in the penalty phase. The record supports the trial court’s determination that Adams’s tr ial counsel provi ded reasonable investigation and preparation under the circumsta nces.

“[C]ounsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” Brown v. Commonw ealth , 253 S.W.3d 490, 499 (Ky. 2008) (citations omitted). We c annot say trial counsel provided deficient performance under the first prong of Strickland

. III. C ONCLUSION For the foregoing reasons, we affirm the Christian Circuit Court ’ s

o rde r d enying relief under RCr 11.42.

ALL CONCUR

.

BRIEF FOR APPELLANT: David L. Stewart La Grange , Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort , Kentucky