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March 20, 2026 Get Citation Alerts Download PDF Add Note

Krishaun Mays v. Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2024-CA-0774
• Precedential Status: Non-Precedential
• Judges: Thompson

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.9K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

                        by [Kelly Thompson](https://www.courtlistener.com/person/7345/kelly-thompson/)

RENDERED: MARCH 20, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0360-MR

BROOKE L. KENNEDY APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 17-CR-00062-004

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2024-CA-0774-MR

KRISHAUN MAYS APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 17-CR-00062-001

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

---

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND KAREM, JUDGES.

THOMPSON, CHIEF JUDGE: In this consolidated appeal, Krishaun Mays and

Brooke L. Kennedy appeal from the denial of post-judgment motions following

their criminal convictions resulting from the December 26, 2016 robbery and

murder of Jared Banta in Franklin County, Kentucky. Mays argues that the circuit

court improperly denied his motion pursuant Kentucky Rules of Criminal

Procedure (RCr) 11.42 to vacate his judgment and sentence. Kennedy argues that

the circuit court erred in denying her Kentucky Rules of Civil Procedure (CR)

60.02 motion to amend her conviction from complicity to robbery in the first

degree to complicity to robbery in the second degree, and to reduce her sentence.

After careful review, we find no error and affirm the orders on appeal.

APPEAL OF KRISHAUN MAYS

FACTS AND PROCEDURAL HISTORY

On February 14, 2017, Mays was indicted by a Franklin County grand

jury on charges of murder and robbery in the first degree.1 Kennedy and three

other co-defendants were indicted on charges of complicity to murder and

complicity to robbery in the first degree. The indictments arose from the murder of

1
Kentucky Revised Statutes (KRS) 507.020 and KRS 515.020.

-2-
Banta on December 26, 2016, which resulted after a scheme by Mays and his co-

defendants to rob Banta. Mays was 17 years old at the time of the murder.

Mays’ appointed counsel had Mays’ mental capacity evaluated by Dr.

Eric Drogin, who determined that Mays had an IQ of 72. Counsel sought this

information as a possible basis for arguing that Mays’ lower than average IQ could

be a mitigating factor. Counsel did not challenge Mays’ competency.

On January 9, 2020, Mays’ counsel filed a RCr 8.07(2) motion to

introduce this evidence at trial. A hearing on the motion was conducted, at which

time the Commonwealth sought to have Mays evaluated at the Kentucky

Correctional Psychiatric Center (KCPC) for rebuttal purposes. Both requests were

granted, and the matter was set for trial.

On March 6, 2020, and prior to trial, Mays entered a guilty plea in

exchange for the Commonwealth’s recommendation of a 20-year sentence on the

murder charge, a five-year sentence on an amended charge of robbery in the

second degree,2 and both sentences to be served consecutively for a total of 25

years in prison. Mays participated in a plea colloquy where he stated that he was

satisfied with counsel’s representation, understood the nature of his plea, and that

he was waiving his right to a jury trial and an appeal. Based on the plea, the

parties agreed that the KCPC order could be rescinded.

2
KRS 515.030.

-3-
The matter moved to sentencing on May 20, 2020. Mays’ counsel

unsuccessfully sought probation based on counsel’s claim that Mays’ IQ

demonstrated that he was only “borderline competent.” The court then sentenced

Mays in accordance with the Commonwealth’s recommendation.

On July 21, 2023, Mays, pro se, filed a motion for RCr 11.42 relief

from judgment. In support of the motion, Mays argued that his counsel was

ineffective in failing to move to withdraw his guilty plea; in failing to ensure that

the KCPC evaluation was completed; in failing to file a direct appeal from his

guilty plea; and, failing to prosecute an interlocutory appeal from an order denying

his request to change venue. According to the record, the Commonwealth agreed

that the KCPC evaluation should have been conducted, and stated that a

retrospective hearing on the matter could be conducted.

On January 25, 2024, and May 23, 2024, the circuit court entered

orders denying Mays’ motion for RCr 11.42 relief.3 The court found that no

further competency hearings were necessary, as Mays’ own expert, Dr. Drogin,

found Mays to be competent and his evaluation had been for mitigation purposes

only. The court also noted that it was the Commonwealth, not Mays, which

3
The first order denied in part Appellant’s motion for RCr 11.42 relief and reserved in part for
later adjudication additional portions of Appellant’s motion pending a response from the
Commonwealth. The court’s second order disposed of Appellant’s motion in toto; denied his
request for counsel on the RCr 11.42 motion; and, stated that it would appoint appellate counsel
if requested by Appellant.

-4-
requested the KCPC evaluation for possible rebuttal purposes, and that this request

was rendered moot by virtue of Mays’ guilty plea. The court determined that

Mays’ arguments were refuted by the record; therefore, no evidentiary hearing was

required. It denied Mays’ motion for relief and this appeal followed.

STANDARD OF REVIEW

To prevail on a claim of ineffective assistance of counsel, Mays

must show two things:

First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]he proper standard for

attorney performance is that of reasonably effective assistance.” Id.

An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment. The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance
on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance
under the Constitution.

-5-
Id. at 691-92 (citation omitted). “It is not enough for the defendant to show that

the errors had some conceivable effect on the outcome of the proceeding.” Id. at

693. “The defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. Additionally, “a hearing is required only if

there is an issue of fact which cannot be determined on the face of the record.”

Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).

ARGUMENTS AND ANALYSIS

Mays, pro se, argues that the Franklin Circuit Court abused its

discretion in denying his motion for RCr 11.42 relief. He first contends that his

counsel was ineffective for negotiating a plea agreement before ensuring the KCPC

evaluation was completed. He maintains that there is no evidence in the record

demonstrating that he was competent to enter into a guilty plea, and that the KCPC

evaluation might have shown that he lacked the IQ to understand the guilty plea or

to be held culpable if the matter proceeded to trial. On this basis, Mays asserts that

he did not receive the effective assistance of counsel to which he was entitled, as

effective assistance would have included staying the plea negotiation process until

the KCPC hearing was completed.

KRS 532.135 states that,

-6-
(1) At least one hundred twenty (120) days before trial,
the defendant shall file a motion with the trial court
wherein the defendant may allege that he or she is a
defendant with a serious intellectual disability or a
defendant with serious mental illness and present
evidence with regard thereto. The Commonwealth may
offer evidence in rebuttal.

(2) At least ninety (90) days before the beginning of the
trial, the court shall determine whether or not the
defendant is a defendant with a serious intellectual
disability or a defendant with serious mental illness, in
accordance with the criteria set forth in KRS 532.130.

(3) The decision of the court shall be placed in the
record.

(4) The pretrial determination of the trial court shall not
preclude the defendant from raising any legal defense
during the trial. If it is determined the defendant is a
defendant with a serious intellectual disability or a
defendant with serious mental illness, he or she shall be
sentenced as provided in KRS 532.140.

Mays’ counsel did not allege before the circuit court that Mays had a

serious intellectual disability per KRS 532.135. Rather, counsel moved under RCr

8.07(2)(A) “to introduce expert evidence relating to a mental disease or defect or

any other mental condition of the defendant bearing on – (i) the issue of guilt; (ii)

the issue of punishment; or (iii) the issue of guilt and the issue of punishment[.]”

The motion was granted. In response, the Commonwealth moved pursuant to RCr

8.07(2)(B) for an order directing Mays to be examined at the KCPC for the

purpose of rebutting Mays’ expert. As noted above, both motions were granted.

-7-
The question for our consideration on Mays’ first argument is whether

counsel’s failure to stay the plea negotiation process until the KCPC evaluation

was completed constituted ineffective assistance of counsel sufficient to require

reversal of Mays’ conviction. Early in the proceedings, Mays’ counsel moved ex

parte for funds pursuant to KRS 31.185 to retain Dr. Eric Drogin to provide

forensic psychological consultation for mitigation purposes. That motion was

granted on October 15, 2019. At a status conference conducted on January 15,

2020, counsel informed the court that he had filed a notice pursuant to RCr 8.07(2)

that at trial, he intended to introduce evidence that Mays had an IQ of 72.

Counsel expressly and repeatedly stated that Dr. Drogin opined that

Mays was competent, and that the introduction of Mays’ IQ at trial would be solely

for mitigation purposes. In its January 24, 2024 order, the circuit court found that

it had never been given any indication that Mays’ competency was at issue. This

conclusion is supported by the record. Mays’ own expert found him to be

competent. Mays’ counsel repeatedly stated that Mays’ competency was not at

issue. The KCPC evaluation was never intended to rebut Mays’ claim of

incompetency as no such claim was ever made. Rather, the Commonwealth

moved for the KCPC evaluation as provided for by RCr 8.07(2)(B), and for the

sole purpose of rebutting counsel’s contention that Mays has a low IQ.

-8-
In order to prevail on his claim of ineffective assistance of counsel on

this issue, Mays has the burden of demonstrating that counsel’s performance was

deficient. Strickland, 466 U.S. at 691-92. This requires showing that counsel

made errors so serious that counsel was not functioning as the counsel guaranteed

the defendant by the Sixth Amendment, and that there is a reasonable probability

that but for the deficiency the outcome of the proceeding would have been

different. Id.

Here, Mays can point to nothing in the record supportive of his claim

that counsel improperly engaged in plea negotiations before the KCPC evaluation

was conducted, nor that such a failure may be characterized as ineffective

assistance. Mays’ competency was never at issue because Mays’ own expert found

him to be competent. The circuit court properly concluded that Mays was not

entitled to RCr 11.42 relief on this issue. Because the matter was justiciable from

the record, no hearing was required. Stanford, 854 S.W.2d at 743-44.

Mays also argues that his trial counsel was ineffective in failing to

move to withdraw his guilty plea. He claims that counsel assured him that he

would get probation if he pleaded guilty; that a legal assistant subsequently told

Mays that probation was not guaranteed; and, that when Mays learned that

probation was not guaranteed, he told his counsel to withdraw the guilty plea. The

-9-
failure to seek a withdrawal of the guilty plea, Mays contends, constitutes

ineffective assistance of counsel entitling him to RCr 11.42 relief.

RCr 8.10 provides in relevant part that, “[a]t any time before

judgment the court may permit the plea of guilty . . . to be withdrawn and a plea of

not guilty substituted.” “Though an RCr 8.10 motion is generally within the sound

discretion of the trial court, a defendant is entitled to a hearing on such a motion

whenever it is alleged that the plea was entered involuntarily.” Edmonds v.

Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006) (citations omitted). However,

“a defendant who expressly represents in open court that his guilty plea is

voluntary may not ordinarily repudiate his statements to the sentencing judge.” Id.

at 568 (citation omitted).

Here, Mays expressly represented during the plea colloquy in open

court that his plea was voluntary. “Solemn declarations in open court carry a

strong presumption of verity.” Simms v. Commonwealth, 354 S.W.3d 141, 144

(Ky. 2011) (citation omitted). This declaration contradicts the claim now before us

that he did not want to enter a guilty plea. Further, and as noted by the circuit

court, Mays has made contradictory claims – both that counsel promised probation

resulting from a guilty plea, and that Mays knew there was no guarantee of

probation.

-10-
Turning to Strickland, an error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding

if the error had no effect on the judgment. Mays has presented no basis for

concluding that his trial counsel erred in failing to seek a withdrawal of Mays’

plea, nor for concluding that the alleged error had any effect on the judgment.

Mays did not enter a guilty plea in a vacuum. Rather, in return for the

plea he received an amended charge of robbery in the second degree, and

eliminated his risk of receiving a life sentence on the murder charge had the matter

gone to trial.4 The Commonwealth was prepared to offer substantial proof in

support of the charges of murder and first-degree robbery, including a video of the

murder, text messages between the co-defendants, and testimony from Mays’

grandmother that she had taken Mays to the hospital for injuries allegedly resulting

from the incident. This is all to say that the guilty plea was part of a reasoned

strategy to eliminate the possibility of many additional decades of imprisonment

had the matter proceeded to trial.

Again, it is not enough for Mays to show that the alleged error had

some conceivable effect on the outcome of the proceedings. Strickland, 466 U.S.

at 693. Rather, Mays must show that there is a reasonable probability that, but for

4
See KRS 640.040 and KRS 532.060.

-11-
counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 694. Mays has not met this burden, and we find no error.

Lastly, Mays argues that he received ineffective assistance when his

counsel failed to prosecute an appeal from his criminal judgment. While

acknowledging that a guilty plea waives certain rights including the right to appeal,

he contends that the instant facts fall within one of the limited exceptions to that

rule. Specifically, Mays argues that questions of competency to enter a plea

survive the entry of the plea and are subject to appeal. On this basis, he requests an

opinion reversing the orders denying his motion for RCr 11.42 relief.

Entry of a voluntary, intelligent plea of guilty has long
been held by Kentucky Courts to preclude a post-
judgment challenge to the sufficiency of the evidence.
The reasoning behind such a conclusion is obvious. A
defendant who elects to unconditionally plead guilty
admits the factual accuracy of the various elements of the
offenses with which he is charged. By such an
admission, a convicted appellant forfeits the right to
protest at some later date that the state could not have
proven that he committed the crimes to which he pled
guilty. To permit a convicted defendant to do so would
result in a double benefit in that defendants who elect to
plead guilty would receive the benefit of the plea bargain
which ordinarily precedes such a plea along with the
advantage of later challenging the sentence resulting
from the plea on grounds normally arising in the very
trial which defendant elected to forego.

Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986) (citations

omitted).

-12-
A waiver of the right to appeal in a guilty plea does not
extinguish all appealable issues. Rather, some issues
survive an express waiver of the right to appeal. These
issues include competency to plead guilty [and] whether
the plea complied with the requirements of Boykin v.
Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d
274 (1969)[.]

Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010) (internal quotation

marks and citations omitted).

Mays argues that he was not competent to plead guilty, and that his

counsel’s failure to bring an appeal on that issue constituted ineffective assistance.

This claim is refuted by the record. Again, Mays’ own expert found him to be

competent, and the circuit court determined that Mays’ competency was never at

issue until Mays raised the issue three years after his judgment was entered. While

Mays’ expert found him to have a diminished IQ, the Kentucky Supreme Court has

held “that a low IQ alone is an insufficient basis for find[ing] the statement was

involuntary.” Parrish v. Commonwealth, 272 S.W.3d 161, 177 (Ky. 2008)

(internal quotation marks and citations omitted). The Franklin Circuit Court

properly determined that Mays’ counsel did not fail to provide effective assistance

of counsel by not prosecuting an appeal from Appellant’s conviction, and we find

no error.

-13-
APPEAL OF BROOKE L. KENNEDY

FACTS AND PROCEDURAL HISTORY

On February 14, 2017, a Franklin County grand jury indicted

Kennedy for complicity to commit robbery in the first degree and complicity to

murder, also arising from the murder of Banta on December 26, 2016.5 On May

17, 2017, Kennedy pleaded guilty to complicity to commit robbery in the first

degree and the reduced charge of criminal facilitation to murder.6 On October 20,

2018, the circuit court sentenced Kennedy in accordance with the

Commonwealth’s recommendation to 10 years in prison on the complicity to

commit robbery in the first degree charge, and 5 years on the facilitation to murder

charge, to be served consecutively for a total of 15 years in prison.

On November 7, 2022, Kennedy, pro se, filed a motion in Franklin

Circuit Court pursuant to CR 60.02(a), (e), and (f) to amend the judgment. In

support of the motion, Kennedy cited Commonwealth v. Doughty, 869 S.W.2d 53

(Ky. App. 1994), for the proposition that after a plea of guilty, a trial court may

exercise its discretion in reducing a defendant’s sentence after having considered

the circumstances of the crime and character of the defendant. She asked the court

to reduce her conviction from complicity to commit robbery in the first degree to

5
KRS 515.020; KRS 502.020; and, KRS 507.020.
6
KRS 506.080.

-14-
complicity to commit robbery in the second degree, with a commensurate

reduction in her sentence. She also sought to proceed in forma pauperis. The

basis of her request was that she had turned her life around, needed to care for her

grandmother, and was remorseful for her role in Banta’s murder.

On August 14, 2023, the Franklin Circuit Court entered an order

granting in part and denying in part Kennedy’s motion to proceed in forma

pauperis. It also denied her motion to amend her final judgment. As a basis for

the denial of her motion to amend, the court determined that the motion was not

timely filed as about four years has elapsed between the entry of judgment and the

motion. It further ruled that even if the motion were timely, Kennedy had not

articulated any basis for relief. This appeal followed.

STANDARD OF REVIEW

In Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), the

Kentucky Supreme Court set out the procedure for a post-conviction collateral

attack on a judgment. It stated,

[w]e hold that the proper procedure for a defendant
aggrieved by a judgment in a criminal case is to directly
appeal that judgment, stating every ground of error which
it is reasonable to expect that he or his counsel is aware
of when the appeal is taken.

Next, we hold that a defendant is required to avail
himself of RCr 11.42 while in custody under sentence or
on probation, parole or conditional discharge, as to any
ground of which he is aware, or should be aware, during

-15-
the period when this remedy is available to him. Final
disposition of that motion, or waiver of the opportunity to
make it, shall conclude all issues that reasonably could
have been presented in that proceeding. The language of
RCr 11.42 forecloses the defendant from raising any
questions under CR 60.02 which are “issues that could
reasonably have been presented” by RCr 11.42
proceedings.

Id. “CR 60.02 . . . may be utilized only in extraordinary situations when relief is

not available on direct appeal or under RCr 11.42.” Foley v. Commonwealth, 425

S.W.3d 880, 884 (Ky. 2014) (citation omitted).

ARGUMENTS AND ANALYSIS

Kennedy, pro se, argues that the Franklin Circuit Court committed

reversible error in denying her motion for CR 60.02 relief. For the first time,

Kennedy now argues that she received ineffective assistance of counsel resulting in

an excessive sentence. Specifically, Kennedy states that between the entry of her

guilty plea and sentence, the then-Commonwealth Attorney recused from the case

and was replaced by former Commonwealth Attorney Ron Goldy. When the case

against Kennedy’s co-defendant, Victorya Paige Young, was set for trial, it came

to light that Mr. Goldy had failed to provide Young with required witness

statements. This resulted in a plea agreement more favorable to Young than that

offered to and accepted by Kennedy. Young was subsequently granted shock

probation. The focus of Appellant’s argument is that her trial counsel was

ineffective in failing to secure the same favorable sentencing received by Young.

-16-
Kennedy’s motion below was brought under CR 60.02(a), (e), and (f).

In disposing of the motion, the Franklin Circuit Court found that ground (a) must

be raised within one year after the judgment, and that grounds (e) and (f) must be

raised “within a reasonable time” per CR 60.02. After citing supportive case law,

the court then ruled that Kennedy’s motion – brought some four years after the

judgment – was not timely. It further ruled that even if it were timely, Kennedy

was still not entitled to the relief sought because she knowingly and voluntarily

accepted the Commonwealth’s plea offer.

Kennedy’s argument that her counsel was ineffective in failing to

secure a sentence as favorable as that received by Young must fail for at least two

reasons. First, we are “without authority to review issues not raised in or decided

by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.

1989) (citations omitted). Kennedy did not present her claim of ineffective

assistance to the circuit court. Second, the parties and the courts are constrained by

the procedure for a post-conviction collateral attack on a judgment set out in

Gross, 648 S.W.2d at 857. Kennedy was required to raise any known issues on

direct appeal, then via RCr 11.42, and then by way of CR 60.02. Gross, 648

S.W.2d at 857. And per Gross, Kennedy is foreclosed from raising any questions

under CR 60.02 which are issues that could reasonably have been raised via RCr

-17-
11.42. A claim of ineffective assistance of counsel is precisely the type of issue

which should have been raised, if at all, by way of RCr 11.42.

Finally, and arguendo, even if Kennedy’s claim were properly before

us as both timely filed and in conformity with the procedure for a post-conviction

collateral attack on a judgment, her claim of error would nevertheless fail. Her

underlying argument as to the unfairness of receiving a harsher sentence than a co-

defendant is not a “reason of an extraordinary nature justifying relief” per CR

60.02(f), especially as that sentence resulted from a plea offer which Kennedy

knowingly and voluntarily accepted.

CONCLUSION

For the foregoing reasons, we affirm the orders of the Franklin Circuit

Court denying Mays’ motion for RCr 11.42 relief and Kennedy’s motion to amend

her conviction and reduce her sentence under CR 60.02(a), (e), and (f).

ALL CONCUR.

-18-
BRIEF FOR APPELLANT BRIEFS FOR THE
KRISHAUN MAYS: COMMONWEALTH OF
KENTUCKY:
Krishaun Mays, pro se
West Liberty, Kentucky Russell Coleman
Attorney General of Kentucky
BRIEF FOR APPELLEE BROOKE L.
KENNEDY: Melissa A. Pike
Assistant Attorney General
Brooke L. Kennedy, pro se Frankfort, Kentucky
Pewee Valley, Kentucky

-19-