RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001554-MR

ERIK TUCKER APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

v. HONORABLE KATHLEEN S. LAPE, JUDGE

ACTION NO. 14-CR-00886-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: KRAMER, LAMBERT, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Erik Tucker, pro se, brings this appeal from a September 10, 

2018, order of the Kenton Circuit Court denying his Kentucky Rules of Criminal 

Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.

A complete recitation of the facts of this case may be found in the 

Kentucky Supreme Court’s opinion on direct appeal. Tucker v. Commonwealth, 

No. 2016-SC-000034-MR, 2017 WL 1538280 (Ky. Apr. 27, 2017). Briefly stated, 

on August 25, 2014, Tucker was driving his vehicle past Randolph Hughes and 
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three other individuals, who were all standing on a sidewalk, when Tucker’s

passenger fired multiple rounds from a handgun, killing Hughes. Id. at *1. 

“Tucker later confessed to driving the vehicle used in the shooting and to knowing 

that his passenger . . . intended to shoot Hughes.” Id.

On October 23, 2014, the Kenton County grand jury indicted Tucker 

for one count of capital murder. The grand jury later added three counts of firstdegree wanton endangerment to Tucker’s indictment; these charges were based on 

the substantial danger presented to the three individuals standing near Hughes 

when he was shot. After his trial in November 2015, the jury found Tucker guilty 

on all charges, and the trial court sentenced him to a total of forty-years’

imprisonment by Judgment entered December 22, 2015. Tucker pursued his direct 

appeal to the Kentucky Supreme Court as a matter of right. KY. CONST.

§110(2)(b). The Kentucky Supreme Court affirmed his conviction and sentence.

On August 2, 2018, Tucker filed an RCr 11.42 motion to vacate his 

conviction alleging ineffective assistance of trial counsel. By order entered 

September 10, 2018, the trial court denied Tucker’s RCr 11.42 motion without an 

evidentiary hearing. Two days after the trial court’s denial of relief, Tucker filed a 

“Motion to Compel Trial Counsel to Produce File and Request to Hold Previously 

Filed RCr 11.42 in Abeyance until File is Received so Movant can Properly 
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Supplement his Pro-Se Pleadings.” On September 26, 2018, the trial court denied 

Tucker’s second motion as moot. This appeal followed.

To prevail upon a claim of ineffective assistance of trial counsel, 

Tucker must demonstrate that trial counsel’s performance was deficient and that 

such deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984). An evidentiary hearing is required only where the allegations are not 

refuted on the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452

(Ky. 2001). A motion made pursuant to RCr 11.42 must specifically state the 

grounds for relief, and mere conclusory allegations of error are insufficient to 

warrant an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 748

(Ky. 1993); Wedding v. Commonwealth, 468 S.W.2d 273, 274 (Ky. 1971).

In his verified RCr 11.42 motion and its accompanying memorandum, 

Tucker alleged his trial counsel was ineffective for her failure to investigate his 

case in various respects, as well as for her failure to present a defense on the basis 

of extreme emotional disturbance. Tucker filed his notice of appeal from the trial 

court’s denial of this motion. However, Tucker’s brief before this Court ignores 

the arguments presented in his RCr 11.42 motion. Instead, Tucker now contends

that the trial court erroneously dismissed his motion to compel trial counsel to 

produce his case file and that the trial court erred when the circuit court clerk failed 

to certify the record properly for this appeal. When an appellant fails to address 
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arguments to us on appeal, they are considered to be waived. “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, 815-16 (Ky. 

2004). Accordingly, Tucker’s arguments alleging ineffective assistance of counsel 

under RCr 11.42 are not properly before us, and we will not consider them here.

Proceeding to a review of Tucker’s briefed issues, we discern no 

grounds for relief. First, Tucker asserts the trial court erroneously dismissed his 

motion to compel his trial counsel to produce his case file so he could adequately 

prepare his RCr 11.42 motion.

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 The trial court concluded this argument was moot 

because Tucker’s RCr 11.42 motion had been denied two days earlier. Mootness 

arises when “an event occurs which makes a determination of the question 

unnecessary or which would render the judgment that might be pronounced 

ineffectual[.]” Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (citations and 

internal quotation marks omitted). 

Tucker’s RCr 11.42 motion had already been considered and rejected 

by the trial court, and he was not entitled to present a successive motion under the 

 

1

 Although this argument was rejected in the trial court’s second order and not the order from 

which Tucker filed his notice of appeal, the Kentucky Supreme Court has instructed us to apply 

substantial compliance in considering arguments on appeal despite such errors. See Cassetty v. 

Commonwealth, 495 S.W.3d 129, 133 (Ky. 2016) (noting how Ready v. Jamison, 705 S.W.2d 

479 (Ky. 1986), applied substantial compliance “to a notice of appeal naming the wrong order”).
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rule. Owens v. Commonwealth, 512 S.W.3d 1, 14 (Ky. App. 2017). For this 

reason alone, the trial court correctly determined that an order granting Tucker’s 

motion would be ineffectual, as its stated purpose would be in service of an 

unauthorized successive collateral attack on the judgment. It is also worth noting 

that an appellant may not use RCr 11.42 as a discovery device. Roach v. 

Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012).

Finally, in his second argument, Tucker asserts the trial court erred 

when the circuit court clerk improperly certified the record for the purpose of this 

appeal. We cannot consider this issue on the merits because Tucker fails to 

identify, and the record does not reveal, when the issue was presented to the trial 

court for its consideration. “The Court of Appeals is without authority to review 

issues not raised in or decided by the trial court.” Reg’l Jail Auth. v. Tackett, 770 

S.W.2d 225, 228 (Ky. 1989) (citations omitted).

For the foregoing reasons, the judgment of the Kenton Circuit Court is 

affirmed.

ALL CONCUR.
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BRIEF FOR APPELLANT:

Erik Tucker, Pro Se

Fredonia, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Todd D. Ferguson

Assistant Attorney General

Frankfort, Kentucky