Commonwealth Of Kentucky Court of Appeals - Justia

failed to provide funding so that she could obtain expert testimony regarding her
husband’s abuse and its impact on her. We will set forth additional facts as necessary
as we discuss these issues.
STANDARD OF REVIEW
In an RCr 11.42 proceeding, the movant has the burden “to establish
convincingly that he was deprived of some substantial right which would justify the
extraordinary relief afforded by the post-conviction proceedings . . . .” Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). When the trial judge conducts an
evidentiary hearing, a “reviewing court must defer to the determinations of fact and
witness credibility made by the trial judge.” Sanborn v. Commonwealth, 975 S.W.2d
905, 909 (Ky. 1998).
In considering ineffective assistance of counsel, the reviewing court must
focus on the totality of evidence before the trial judge and assess the overall
performance of counsel throughout the case in order to determine whether the identified
omissions or actions overcome the presumption that counsel rendered reasonable
professional assistance. See United States v. Morrow, 977 F.2d 222, 229 (6th Cir.
1992); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
A convicted defendant claiming ineffective assistance of
counsel has the burden of: (1) identifying specific errors by
counsel; (2) demonstrating that the errors by counsel were
objectively unreasonable under the circumstances existing at
the time of trial; (3) rebutting the presumption that the
actions of counsel were the result of trial strategy; and (4)
demonstrating that the errors of counsel prejudiced his right
to a fair trial.
Simmons v. Commonwealth, 191 S.W.3d 557, 561-2 (Ky. 2006), cert. denied, ___ U.S.
___, 127 S.Ct. 1132 (2007), 166 L.Ed.2d 908.
Tharp’s claim that she should have been provided funding so that she
could obtain expert evidence in her RCr 11.42 litigation raises an issue of law and our
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