RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals
NO. 20 21

- CA

- 1 35 8

- MR

SHAUN E. HILES APPELLANT

APPEAL FROM GRANT CIRCUIT COURT v. HON ORABLE GREGORY M. BARTLETT , S PECIAL JUDGE ACTION NO

. 1 4

- CR

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COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VA CATING A ND REMA N DING

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BEFORE: JONES, KAREM, AND LAMBERT, JUDGES

. JONES , JUDGE: S h aun Hiles appeals from the Grant Circuit Court ’ s o rder
d enying his RCr 1 11.4 2 motion

. Because Hiles ’ s moti on raises issues whic h cannot be resolved by an exa minati on of the record , we vacate the trial court ’ s order of denial and remand for further proceedings, including an e videntiary hearing.

1 Kentucky Rules of Criminal Procedure.- 2

- I. B ACKGRO UND On June 28, 2014, a fter several weeks of marital di scord , H i les shot
and killed his wife, Nicole Hiles and h er friend , Larry Whit ek er. F o llowing his trial, the jury found Hiles guilty of two c ounts of capital murder 2 and two counts of
first

- degree wanton endangerment

. 3 Consistent with the ju ry ’ s recommen dation,
the trial court sentenced Hiles to two life terms without the possibility of pa role
and to a term of five years for each wanton endan germ ent c harge

. T he Kentucky Supreme Court affirmed Hiles ’ s convicti on s and sentence on direct appeal in an unpubl ished memorandum opinion

. Hiles v. Commonwealth , No. 201 6

- SC

000127

- MR, 2017 W L 260013 2 (Ky. Jun

. 15, 2017). Hiles subsequently file d a
pro se motion to vacate his sentence under RCr 11.42 . The trial court denied relief
in a written order entered on Nov ember 10 , 2021 , wi thout conduct ing an evidentiary hearing . This appeal follow ed

. II. A NAL YSIS A successful petition for relie f und er 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,

2 Kentucky Re vised Statutes (KRS) 507.020

.
3 KRS 50 8.060, a Class D f elony.- 3

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80 L. Ed. 2d 674 (1984) , a ccord Gall v. Commonwealth , 702 S.W.2d 37 ( Ky. 1985). The “ perf

ormance ” prong of Strickland requires as follows: Appellant must show that counsel ’ s performance was defi cient. This is done by showing that counsel made errors so serious that counsel was no t functioning as the

“ counsel ” guarant eed t he defendant by the S ixth Amendment, or that counsel ’ s representation fell below an objective standard of reasonableness.
P arrish v. Commonwealth , 272 S.W.3d 161, 168 (Ky. 2008) ( internal quotatio n marks and c itations omitted). The “ prejudice ” pro ng re quires a showing that

“ counsel ’ s errors were so serious as to depriv e the defendant of a fair trial , a trial
whose result is r eliable

. ” Commonwealth v. McGorman , 489 S.W.3d 731, 736 (Ky. 2016) ( quoting Strickland , 466 U.S. at 687, 104 S. Ct. at 2064 ).

Bot h Strickland prongs m ust 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 breakdown in the adversary process that
renders the result unreli able. ” Strickland , 46 6 U. S. at 687, 104 S. Ct. at 2064

. This is a very difficult standard to meet. “ Surmounting Strickland ’ s high b ar is never an easy task. ” Padilla v. Kentucky , 559 U.S. 356, 371, 130 S. Ct. 1473,
14 85, 176 L. Ed. 2d 284 (2010). We r evi ew co unsel’s performance u nder Strickland de novo

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

.

Hiles made several different claims in his pro se RC r 11.42 motion to the trial court, but his counseled b rief on appeal a bandons severa l of those- 4

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arguments

. We cons ider 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 (K y . 2004).

For his briefed issues , Hiles contends his trial counsel was ineffective
when he : (1) f

a iled to ad equately investigate and present a defense base d on
extreme emotion al disturb ance (EED) ; and (2) failed to disc over , through expert testing, that Hiles suffers from “ intermittent explosive disorder , ” a psychiat ric condition which may hav e assiste d in his EED defense

. Hi les asserts that , had his
trial counsel conducted a n adequate investigation , this information would have
sufficed to convince at least one jur or to recommend a l ess severe sentenc e than
l ife without the possibility of parole.

We m ust note at the outset that Hiles ’ s trial cou nsel did not gi ve an opening statement or present any witnesses during the guilt phase of the tria l

. Instead, t rial counsel b riefly c ross - examine d each of the Commonwealth ’ s

w itnesses in order to inquire as t o whether the witness could testify as to H i les’s
state of mind when he s hot Ni cole and L arry. Because there were no psychiatric experts testifying for the Commonwealth , the answer s were generally negative. Then, i n the penalty phase, trial c ou nsel called one witness, Hile s ’ s teenage daugh ter , in order to ask he r (1) whether she loves and mi s ses her mother, (2)- 5

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whether she loves and misses her father , and (3) if she wou ld like the jury to sho w compassion and giv e her father the minimum sentence.

It may b e , as Hiles asserts, that his trial counsel utterly faile d to diligently investigate hi s case o r prese nt witnesses , including psychiatric experts, who could have buttres sed Hile s ’ s EED d e fens e. If true, this c ould constitute
ineffective assistance of cou n s el. “ [C] ounsel has a duty to make reasonable investigat ions or to make a reasonable decis ion 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 2 066). However, i t is also possible, as the Commonwealth contends, tha t Hiles ’ s counsel dec lined to p ur sue expert psychiatric testimony due to the witness testimony presented previously, during Hi les ’ s pretrial competenc y hearing. D r. Amy Trivette at Kent ucky
C orrectional Psychiatric Center (KCPC) testified tha t Hiles was competen t and

c apable of participat ing in his defense, sta ting , “ he does not suffer from a mental
i ll ness or intellectual disability that would be expected to impair his ability to
apprec iate the criminal ity of his con duct or to conform his con du ct to the require ments of the la w. ” Furthermore, she tes tified that there was evidence that
Hiles had malingered during his psychiatric testing. Finally, a deputy jailer, Jason
Han kin s , testified that he had overheard Hiles assert he would escape punis hment by manipulati ng the staff in to believ ing h e was mentally ill.- 6

- It is also p ossible that trial cou ns el employed a strategy based on pure

cross - examinat ion in order to avoid disclosing its defens e to the Commonwealth

. See Vincent v. Commonwealth , 58 4 S.W.3d 762 , 7 70

- 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 d isclos ure to the Commonwealth of the test r eports and a summary of the expert ’ s testimony). A s in t hi s case, trial counsel in Vincent

was also confront ed with a situation in which the re was evidence of the defen dant malingering during psychiatric testi ng. If, like Vincent , t rial counsel in this c ase decided to avoid using expert testimony to prevent di sclosure to the
Commonwealth , or t o avoid the p resent ation of testimony to the jury regarding
Hiles ’ s malingering, then this would be a proper exercise of trial strategy and not
ineffect ive ass istanc e of counsel

. “It is not the function of this Court to u surp or second guess counsel ’ s tri al strategy.” Vincen t , 5 84 S. W .3d at 771 (citations

om itted).
The trial court ’ s order assert s th at Hile s ’ s RCr 11.42 claims are refuted by the record, in that tria l cou nsel did offer an EED defense to the jury.
However , with re spect to the trial court, th e question is not whether t rial counsel presented an EED defe nse , but whet her trial cou nsel was ineffective in the presentat ion of th is defense in such a way tha t proved ultimately prejudicial to the
def endant. Strickla nd , 466 U.S. at 687, 104 S. Ct. at 2064

. Unfo rtunately, b ecause- 7

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the trial court declined to order an evidentiary hearing on Hile s ’ s RCr 11.42 motion, the record presents n o evidence as to trial cou nsel ’ s motives for an allegedly lackluster pe r formance or an an aly sis as to whether this perfor mance was ultimately prej u di cial

.

This , of itself , r equires 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 tri al judge may not simply disbelieve factual allegations in t he absence of evidence in the record refuting the m.” Fraser v. Commonwealth , 59 S.W.3d 448, 452

- 53 (Ky. 2 001) (citations omitted). “ An evidentiary hearing must be held in this case to determine w hether the failure to introduce mitigating evidence was trial strategy, or ‘ an abdication of advocacy. ’ ”
Ho dge v. Commonwealth , 68 S.W.3d 33 8, 345 (Ky. 2001) (quoti ng Austin v. Bell , 126 F.3d 843, 849 (6th Cir. 1997) ).
III. C ONCLUSION For the foregoing reaso ns, we vacate the Grant Circuit Court ’ s o rder
d enying relief pur suant to RCr 11.42 . We remand th is matter f or an evid entiary hearing with counsel appointed for Hile s , as required by Fraser , and for further proceedings not inconsistent with this O pinion.

AL L CONCUR.- 8

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BRIEF FOR APPELLANT: David L. Stew art La Grange , Kentucky BRIEF FOR APPELLEE:
Dan iel Cameron Attorney General of Kentucky
Thomas A . Van D e R ostyne A ssis tant Atto rney General Frankfort , Kentucky