ALLEN GARRISON V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1507-MR ALLEN GARRISON APPELLANT v. APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 22-CR-00456 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; L. JONES AND TAYLOR, JUDGES. JONES, L., JUDGE: Allen Garrison, pro se, appeals from the November 5, 2025 order of the Kenton Circuit Court denying his motion to vacate or set aside his judgment and sentence pursuant to RCr1 11.42. After careful review, we affirm. 1 Kentucky Rules of Criminal Procedure.

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-2- On May 5, 2022, Garrison was indicted on one count of criminal attempt to commit rape in the first degree and one count of sexual abuse in the first degree in Kenton Circuit Court. On May 9, 2022, Garrison was arraigned.2 He was also appointed counsel who apparently represented him at the time in Campbell county. On July 11, 2022, Garrison entered into a guilty plea where he agreed to plead guilty as charged, with the sentence for both offenses to run concurrently for a total of eight years, but consecutively with any sentence in Campbell Circuit Court. The terms of the plea agreement acknowledged Garrison was to “successfully complete the sex offender treatment program” (SOTP) and that he would register as a sex offender for life. The plea agreement also subjected Garrison to a period of post-incarceration supervision, ordered no contact with the victim, and forbade him from arguing for a lesser or alternative sentence. During a lengthy and thorough plea colloquy, Garrison acknowledged: (1) he understood the terms of his plea agreement; (2) he did not suffer from any mental disease or have any mental problems; (3) he discussed the facts of the case and the plea with appointed counsel; (4) he understood he would be required to complete SOTP; (5) he understood he would be required to register as a sex offender for life; and (6) he 2 At the time of arraignment in Kenton Circuit Court, Garrison was apparently facing charges in Campbell Circuit Court as well. Those Campbell Circuit Court charges are not the subject of this appeal, but tangentially tie into some of Garrison’s arguments.

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-3- understood the sentences in the Kenton county case would run concurrently with each other, but consecutive with any sentence from Campbell county or elsewhere. The circuit court accepted Garrison’s plea and set a sentencing date of September 27, 2022. On September 26, 2022, Garrison sent the circuit court a handwritten letter which the circuit court treated as a motion to withdraw his guilty plea. Garrison was appointed a new attorney as conflict counsel to represent him.3 The circuit court held an evidentiary hearing on Garrison’s motion to withdraw his plea on November 10, 2002, and on May 19, 2023, the circuit court entered an order denying the motion (May 19, 2023 order).4 On July 18, 2023, Garrison was sentenced in accordance with his guilty plea. Garrison was represented at sentencing by conflict counsel. Prior to sentencing, Garrison made an oral motion to reconsider the May 19, 2023 order which was denied. Garrison did not appeal the denial of his motion to withdraw his plea. 3 Garrison claims on appeal that he received ineffective assistance of counsel from three attorneys. For the sake of clarity, we will refer to the attorney who represented him up to his plea agreement as “appointed counsel;” the conflict attorney who represented him on his motion to withdraw his plea as “conflict counsel;” and the private attorney who he claims he retained at some point (but never entered an appearance in Kenton county) as “private counsel.” 4 Because Garrison’s motion to withdraw his plea is not the subject of this appeal, we do not delve far into the arguments of that motion, hearing, or findings. We will only do so as necessary further in this Opinion as they relate to arguments in this appeal.

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-4- On May 19, 2025, Garrison filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to RCr 11.42 (11.42 motion) due to ineffective assistance of counsel by appointed counsel, conflict counsel, and private counsel. Garrison also asked for appointed counsel to supplement his 11.42 motion and for an evidentiary hearing. In his 11.42 motion and memorandum, Garrison made numerous and rambling arguments, thus, we shall only address those arguments he presents on appeal. Garrison claimed his appointed counsel provided ineffective assistance by failing to notify him of possible defenses, specifically that the Commonwealth could not prove he had the “culpability” required for attempted rape in the first degree, by failing to inform him sexual abuse in the first degree is a “lesser-included” offense to rape in the first degree, and by failing to have the attempted rape charge dismissed. Garrison also claimed he was never advised by appointed counsel that he would have to complete SOTP or register as a sex offender for life. Finally, as to appointed counsel, Garrison claimed she should have filed his motion to withdraw his guilty plea, and she should have filed a motion to evaluate his competency prior to the plea. Garrison also claimed conflict counsel provided ineffective assistance when she “failed to communicate” and failed to supplement his motion to withdraw his plea. Finally, Garrison claimed private counsel was hired “in

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-5- December,” but failed to show up for final sentencing and failed to communicate, investigate the case, or supplement Garrison’s motion to withdraw his plea. On May 28, 2025, the Commonwealth filed a response, contending the 11.42 motion should be denied as the record fully refuted Garrison’s claims and the circumstances concerning his guilty plea had already been extensively litigated.5 On November 5, 2025, the circuit court entered a thorough eighteen- page order denying Garrison’s 11.42 motion as well as his motions for appointment of counsel and for an evidentiary hearing. This appeal followed. The specifics of Garrison’s arguments in his pro se brief are difficult to follow at times, however, we can discern that he claims: (1) appointed counsel should have filed a competency motion; (2) appointed counsel failed to investigate and communicate certain defenses to him, which if counsel had done so, would have led Garrison to choose to take his case to trial; (3) appointed counsel never informed Garrison that he would be required to complete SOTP or that he would have to register as a sex offender for life; (4) conflict counsel failed to supplement Garrison’s motion to withdraw his guilty plea; (5) private counsel failed to appear for any proceedings in Kenton county; and (6) the circuit court should have provided counsel to Garrison to supplement his RCr 11.42 motion. 5 The Commonwealth also noted that while private counsel had represented Garrison in Campbell Circuit Court, private counsel never filed an entry of appearance in Kenton Circuit Court.

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-6- We review a trial court’s ruling regarding ineffective assistance of counsel as alleged in an RCr 11.42 motion for abuse of discretion. Jackson v. Commonwealth, 567 S.W.3d 615, 619 (Ky. App. 2019). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Kentucky has adopted the test in Strickland v. Washington, 466 U.S. 668 (1984) to analyze claims of ineffective assistance of counsel. See Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985) (“This court is bound by the principles established by the Supreme Court of the United States in the case of Strickland v. Washington, . . . in the context of analyzing ineffective assistance of counsel claims[.]”). Under that test, “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show the deficient performance prejudiced the defense.” Commonwealth v. Leinenbach, 351 S.W.3d 645, 647 (Ky. 2011) (quoting Strickland, 466 U.S. at 686) (internal quotation marks omitted). A motion under RCr 11.42 “shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds.” RCr 11.42(2). “When the allegations [in an RCr 11.42 motion] are not clearly refuted by the record, the movant is entitled to an

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-7- opportunity to create a record through an evidentiary hearing with the assistance of counsel – appointed, if needed.” Jackson, 567 S.W.3d at 619. “If the record refutes the claims of error, there is no need for an evidentiary hearing. A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction.” Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998) (citations omitted). And if a hearing is not necessary, counsel need not be appointed. Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001). When the circuit court denies an evidentiary hearing on a motion under RCr 11.42, “[o]ur review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. App. 1967). With these principles in mind, we turn to Garrison’s arguments. Garrison first claims that his appointed counsel should have requested a competency evaluation. There appear to be two parts to his argument: (1) during his interrogation by police “he seemed a little slow or ill-advised . . . about his surroundings,” and (2) a competency evaluation would show he did not have the requisite mens rea to commit attempted rape. Appellant’s Brief at 1. We note that “[i]n Kentucky, the standard of competency is whether the defendant has a substantial capacity to comprehend the nature and consequences of the proceedings against him and to participate rationally in his defense.” Alley v. Commonwealth,

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-8- 160 S.W.3d 736, 739 (Ky. 2005) (citation omitted). See also KRS6 504.060(5) (Defining “[i]ncompetency to stand trial” to mean “as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one’s own defense[.]”). Garrison’s brief points to nothing in the record to support his claims other than his generalized, self-serving comments about his demeanor during his interrogation. Moreover, the circuit court noted in the May 19, 2023 order that during the plea colloquy, Garrison “indicated his understanding was not impaired or confused by any mental health disease including depression[,]”7 and that based on the totality of the circumstances, Garrison “exercised voluntary, knowing, intelligent and freely made decision making when he entered his plea.”8 Garrison also appears to claim that a competency evaluation would have shown he did not possess the requisite mens rea for attempted rape. Garrison’s argument does not appear to be that he lacked the capacity to form the mens rea necessary to commit the offense, but rather that a competency evaluation would provide him with an expert witness to testify that there was no proof of mens rea. In other words, Garrison claims appointed counsel should have secured 6 Kentucky Revised Statutes. 7 Trial Record (TR) at 50. 8 TR at 56.

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-9- an expert to explain to the jury that he was not guilty due to the Commonwealth’s failure to prove an element of the offense. Any such testimony would be inadmissible because an expert’s testimony “is admitted when the issue upon which the evidence is offered is one of science and skill, and when the subject matter is outside the common knowledge of jurors.” Stringer v. Commonwealth, 956 S.W.2d 883, 889 (Ky. 1997) (citations omitted). Furthermore, “[p]resumably, jurors do not need assistance in the form of an expert’s opinion that the defendant is guilty or not guilty.” Id. at 889-90. The record clearly refutes that Garrison lacked the capacity to understand the charges against him or to participate in his own defense. Nor would any expert testimony about Garrison’s culpability for attempted rape be admissible. Thus, appointed counsel was not ineffective for failing to request a competency evaluation. Garrison’s claims that appointed counsel failed to investigate the case and communicate defenses to him were asserted in his motion to withdraw his plea, litigated in an evidentiary hearing, and were either not legally viable or rejected by the circuit court’s May 19, 2023 order.9 Garrison’s claim that he was 9 In his brief, Garrison cites (without explaining how they apply) two specific affirmative defenses, renunciation to criminal attempt under KRS 506.020 and the exemption defense to kidnapping and unlawful imprisonment under KRS 509.050. KRS 506.020(1), in relevant part, provides a defense for attempt when “under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the

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-10- never told he would be subject to SOTP or sex offender registration for life are belied by his signature on the plea agreement that indicated he would be subject to both, by appointed counsel’s testimony that she went over the plea with him prior to making the guilty plea in open court, and by the circuit court’s confirmation during the plea colloquy that Garrison understood he would be subject to SOTP and sex offender registration for life. Thus, the record clearly refutes Garrison’s claims. Regarding conflict counsel, Garrison claims counsel failed to supplement his pro se motion to withdraw his plea but does not explain how counsel should have supplemented the motion. Generalized and conclusory allegations are not sufficient to support a claim of ineffective assistance of counsel. Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). Furthermore, any defendant abandoned his effort to commit the crime and, if mere abandonment was insufficient to avoid the commission of the crime, took the necessary affirmative steps to prevent its commission.” However, renunciation comes too late if a defendant takes a substantial step towards commission of an offense, and simply does not finish carrying it out. See Bowen v. Commonwealth, 605 S.W.3d 316, 320-21 (Ky. 2020) (concluding that a renunciation instruction is not warranted when a defendant shoots a victim with the intent to kill her, but no longer wishes to kill the victim after she survives). In the present case, Garrison had admitted to the police that he took the victim to the ground with the intent to have sex with her. The victim used a ring knife to defend herself and stop the attack. Thus, to the extent Garrison claims he “abandoned” the attempt after the victim fought back, KRS 506.020(1) would not apply because he only abandoned the attempt after he had taken the victim to the ground with intent to have sex with her. Furthermore, Garrison was not charged with any kidnapping or unlawful imprisonment offenses, so KRS 509.050 would not apply.

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-11- claims of ineffective assistance of counsel regarding private counsel are refuted by the record as private counsel never filed an entry of appearance in Kenton county and Garrison was represented at the time of sentencing. In conclusion, Garrison’s claims of ineffective assistance of counsel were refuted by the record. Thus, the circuit court correctly denied his RCr 11.42 motion without an evidentiary hearing or appointment of counsel. For the foregoing reasons, the circuit court’s November 5, 2025 Order Denying Relief Pursuant to RCr 11.42 is affirmed. We view any remaining contentions of error as moot, unpersuasive, unpreserved, or without merit. ALL CONCUR. BRIEF FOR APPELLANT: Allen Garrison, pro se La Grange, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky

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