RENDERED: MAY 19, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1358-MR

SHAUN E. HILES APPELLANT

APPEAL FROM GRANT CIRCUIT COURT

v. HONORABLE GREGORY M. BARTLETT, SPECIAL JUDGE

ACTION NO. 14-CR-00213

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.

JONES, JUDGE: Shaun Hiles appeals from the Grant Circuit Court’s order 

denying his RCr1 11.42 motion. Because Hiles’s motion raises issues which 

cannot be resolved by an examination of the record, we vacate the trial court’s 

order of denial and remand for further proceedings, including an evidentiary 

hearing.

1 Kentucky Rules of Criminal Procedure.
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I. BACKGROUND

On June 28, 2014, after several weeks of marital discord, Hiles shot 

and killed his wife, Nicole Hiles and her friend, Larry Whiteker. Following his 

trial, the jury found Hiles guilty of two counts of capital murder2and two counts of 

first-degree wanton endangerment.

3 Consistent with the jury’s recommendation, 

the trial court sentenced Hiles to two life terms without the possibility of parole

and to a term of five years for each wanton endangerment charge. The Kentucky

Supreme Court affirmed Hiles’s convictions and sentence on direct appeal in an 

unpublished memorandum opinion. Hiles v. Commonwealth, No. 2016-SC000127-MR, 2017 WL 2600132 (Ky. Jun. 15, 2017). Hiles subsequently filed a 

pro se motion to vacate his sentence under RCr 11.42. The trial court denied relief

in a written order entered on November 10, 2021, without conducting an 

evidentiary hearing. This appeal followed.

II. ANALYSIS

A successful petition for relief under 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. 2052, 

2

 Kentucky Revised Statutes (KRS) 507.020.

3

 KRS 508.060, a Class D felony.
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80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 

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 

errors so serious that counsel was not functioning as the 

“counsel” guaranteed the 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 and citations omitted). The “prejudice” prong requires a showing that

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

whose result is reliable.” Commonwealth v. McGorman, 489 S.W.3d 731, 736 

(Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). 

Both 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 conviction . . . resulted from a breakdown in the adversary process that 

renders the result unreliable.” Strickland, 466 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 review counsel’s performance under 

Strickland de novo. McGorman, 489 S.W.3d at 736.

Hiles made several different claims in his pro se RCr 11.42 motion to 

the trial court, but his counseled brief on appeal abandons several of those 
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arguments. We consider the unbriefed claims to be waived here. “An appellant’s 

failure to discuss particular errors in his brief is the same as if no brief at all had 

been filed on those issues.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 

1979); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).

For his briefed issues, Hiles contends his trial counsel was ineffective 

when he: (1) failed to adequately investigate and present a defense based on 

extreme emotional disturbance (EED); and (2) failed to discover, through expert 

testing, that Hiles suffers from “intermittent explosive disorder,” a psychiatric 

condition which may have assisted in his EED defense. Hiles asserts that, had his 

trial counsel conducted an adequate investigation, this information would have 

sufficed to convince at least one juror to recommend a less severe sentence than 

life without the possibility of parole.

We must note at the outset that Hiles’s trial counsel did not give an 

opening statement or present any witnesses during the guilt phase of the trial. 

Instead, trial counsel briefly cross-examined each of the Commonwealth’s 

witnesses in order to inquire as to whether the witness could testify as to Hiles’s

state of mind when he shot Nicole and Larry. Because there were no psychiatric 

experts testifying for the Commonwealth, the answers were generally negative. 

Then, in the penalty phase, trial counsel called one witness, Hiles’s teenage 

daughter, in order to ask her (1) whether she loves and misses her mother, (2)
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whether she loves and misses her father, and (3) if she would like the jury to show 

compassion and give her father the minimum sentence. 

It may be, as Hiles asserts, that his trial counsel utterly failed to

diligently investigate his case or present witnesses, including psychiatric experts,

who could have buttressed Hiles’s EED defense. If true, this could constitute 

ineffective assistance of counsel. “[C]ounsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary.” McQueen v. Commonwealth, 721 S.W.2d 694, 700 (Ky. 1986) 

(quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). However, it is also 

possible, as the Commonwealth contends, that Hiles’s counsel declined to pursue 

expert psychiatric testimony due to the witness testimony presented previously, 

during Hiles’s pretrial competency hearing. Dr. Amy Trivette at Kentucky 

Correctional Psychiatric Center (KCPC) testified that Hiles was competent and 

capable of participating in his defense, stating, “he does not suffer from a mental 

illness or intellectual disability that would be expected to impair his ability to 

appreciate the criminality of his conduct or to conform his conduct to the 

requirements of the law.” Furthermore, she testified that there was evidence that 

Hiles had malingered during his psychiatric testing. Finally, a deputy jailer, Jason 

Hankins, testified that he had overheard Hiles assert he would escape punishment 

by manipulating the staff into believing he was mentally ill.
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It is also possible that trial counsel employed a strategy based on pure 

cross-examination in order to avoid disclosing its defense to the Commonwealth.

See Vincent v. Commonwealth, 584 S.W.3d 762, 770-71 (Ky. App. 2019) (holding 

that trial counsel’s decision to not hire an expert was valid strategy when RCr 

7.24(3)(a) would have required disclosure to the Commonwealth of the test reports 

and a summary of the expert’s testimony). As in this case, trial counsel in Vincent

was also confronted with a situation in which there was evidence of the defendant 

malingering during psychiatric testing. If, like Vincent, trial counsel in this case 

decided to avoid using expert testimony to prevent disclosure to the 

Commonwealth, or to avoid the presentation of testimony to the jury regarding 

Hiles’s malingering, then this would be a proper exercise of trial strategy and not 

ineffective assistance of counsel. “It is not the function of this Court to usurp or 

second guess counsel’s trial strategy.” Vincent, 584 S.W.3d at 771 (citations 

omitted).

The trial court’s order asserts that Hiles’s RCr 11.42 claims are 

refuted by the record, in that trial counsel did offer an EED defense to the jury. 

However, with respect to the trial court, the question is not whether trial counsel 

presented an EED defense, but whether trial counsel was ineffective in the 

presentation of this defense in such a way that proved ultimately prejudicial to the 

defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Unfortunately, because 
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the trial court declined to order an evidentiary hearing on Hiles’s RCr 11.42 

motion, the record presents no evidence as to trial counsel’s motives for an 

allegedly lackluster performance or an analysis as to whether this performance was 

ultimately prejudicial. 

This, of itself, requires us to vacate the trial court’s dismissal of 

Hiles’s RCr 11.42 motion. “A hearing is required if there is a material issue of fact 

that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an 

examination of the record. The trial judge may not simply disbelieve factual 

allegations in the absence of evidence in the record refuting them.” Fraser v. 

Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001) (citations omitted). “An 

evidentiary hearing must be held in this case to determine whether the failure to 

introduce mitigating evidence was trial strategy, or ‘an abdication of advocacy.’” 

Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001) (quoting Austin v. Bell, 

126 F.3d 843, 849 (6th Cir. 1997)).

III. CONCLUSION

For the foregoing reasons, we vacate the Grant Circuit Court’s order 

denying relief pursuant to RCr 11.42. We remand this matter for an evidentiary 

hearing with counsel appointed for Hiles, as required by Fraser, and for further 

proceedings not inconsistent with this Opinion.

ALL CONCUR.
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BRIEF FOR APPELLANT:

David L. Stewart

La Grange, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas A. Van De Rostyne

Assistant Attorney General

Frankfort, Kentucky