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March 13, 2026 Get Citation Alerts Download PDF Add Note

Devon Wade v. Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0298
• Precedential Status: Non-Precedential
• Judges: Eckerle

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.9K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

RENDERED: MARCH 13, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0298-MR

DEVON WADE APPELLANT

APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 23-CR-00050

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

---

BEFORE: COMBS, ECKERLE, AND MOYNAHAN, JUDGES.

ECKERLE, JUDGE: Appellant, Devon Wade (“Wade”), seeks review of the

Order of the Hopkins Circuit Court, which was entered January 3, 2025, denying

his motion to withdraw his guilty plea to six felony offenses. Wade bases his

claims on original defense counsel’s failure to review the entire, very large body of

digital evidence in possession of the Kentucky State Police. For the reasons set

forth in this decision, and after careful review, we affirm.
On February 14, 2023, the Hopkins County Grand Jury indicted Wade

on charges of First-Degree Rape, First-Degree Sodomy, and four counts of the Use

of a Minor in a Sexual Performance, Victim under the Age of 16. At his

arraignment in Hopkins Circuit Court on February 16, 2023, Wade was represented

by private counsel, James F. Greene (“Greene”).

On January 11, 2024, the case underwent criminal mediation, at which

Wade, Greene, and the Commonwealth negotiated a plea deal. Pursuant to its

terms, Wade would be allowed to concede evidence sufficient to prove his guilt,

while maintaining his professed innocence, under North Carolina v. Alford, 400

U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970),1 to the original charges of First-

Degree Rape and First-Degree Sodomy. Wade would also enter what is often

called a “straight” guilty plea to the amended charges of Distribution of Matter

Portraying the Sexual Performance of a Minor, First Offense, on four counts. In

return, the Commonwealth agreed to recommend a substantially-reduced, total

sentence of 15 years on all charges, to run concurrently. Pursuant to statutory

requirements, the Commonwealth informed Wade that he would be required to

1
An Alford plea “permits a conviction without requiring an admission of guilt and while
permitting a protestation of innocence.” Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky.
App. 2004).

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serve 85 percent of that sentence before he would become eligible for parole, and

that he would be required to register as a sex offender for life.

The same day, Wade appeared before the Trial Court for a plea

colloquy in accordance with Boykin v. Alabama, 395 U.S. 238, 241-42, 89 S. Ct.

1709, 1711, 23 L. Ed. 2d 274 (1969). During the hearing, the Trial Court asked

numerous questions of Greene, Wade, and the Commonwealth to confirm that

Wade’s participation in mediation had been voluntary; that Wade believed that he

was treated fairly by all attorneys involved in the mediation; that Greene believed

that the plea deal was in Wade’s best interests; and that Wade wished to plead

guilty after conferring with Greene regarding the consequences of the plea, the

possible defenses that could be raised at trial, and the rights that he would waive as

a result of the Alford and guilty pleas. After finding that Wade knowingly and

voluntarily made his pleas, the Trial Court accepted them and set a sentencing date

in March 2024.

However, by the time of the sentencing hearing, Wade had discussed

his case with other incarcerated inmates and developed a different plan. Greene

then moved to withdraw as counsel based on Wade’s stated desire to withdraw his

guilty pleas pursuant to Kentucky Rule of Criminal Procedure (“RCr”) 8.10.

Greene stated that he believed that he had an ethical duty to withdraw as counsel

based on his understanding that representing Wade on the motion to withdraw

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would be a conflict of interest. He confirmed that he had negotiated the plea deal

in good faith, and that he believed that Wade had knowingly and voluntarily

accepted. The Trial Court approved the motion and appointed the Department of

Public Advocacy as conflict counsel. Kenneth Root (“Root”) subsequently entered

his appearance as counsel for Wade.

Root later maintained that the primary issue in advising Wade on

continuing with a motion to withdraw the guilty pleas would be the existence of a

large body of unreviewed, digital evidence held by the Kentucky State Police

Crime Lab (“Crime Lab”). Both the Commonwealth and Root agreed that the

evidence could not be made fully discoverable through traditional means due to the

inclusion of child-sex-abuse material (“CSAM”) contained in the imaging of cell

phones belonging to Wade and the alleged, minor victim, who was identified in the

Trial Record as “C.M.” Although sanitized versions of several social-media

accounts were provided in full to Root, technicians could not successfully sanitize

and copy all of the cell phone data. Vast amounts of that data did not involve

Wade or his charges, and the Commonwealth was not obligated to produce it.

Nonetheless, the original evidence was made available for review by the defense.

These efforts at discovery were the subject of several conversations among the

Commonwealth, the investigating officer on the case, defense counsel, and the

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Court. This evidence was ultimately and specifically made available for Root to

review in November 2024 over the course of two days at the Crime Lab.

Once he had reviewed a majority of the digital evidence held at the

Crime Lab, Root filed a motion on Wade’s behalf to withdraw his guilty pleas, and

the Trial Court scheduled an evidentiary hearing for December 4, 2024. At that

hearing, the Trial Court heard testimony from Greene; investigating officer,

Detective Lloyd Ray (“Ray”); forensic examiner, Jordan Frazier with the Crime

Lab; and Wade. Wade testified that the only specific item he had not seen

previously was a Twitter screenshot of a message where C.M. mentioned going to

a college after picking up her sister.

Both Root and the Commonwealth offered brief oral arguments for

and against the motion. Although Root raised Greene’s failure to review the

digital evidence as an error that affected Wade’s ability to make a knowing and

intelligent plea, he stopped short of directly asserting ineffective assistance of

counsel. Meanwhile, the Commonwealth argued that it had met its discovery

burdens in making evidence available for review and discussing all evidence

directly related to the charged offenses with Greene prior to the plea.

Following the hearing, the Trial Court issued an order denying the

motion and proceeded to sentencing. In the order, the Trial Court set forth a

detailed recitation of the findings of fact and applicable law for determining

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whether a defendant should be allowed to withdraw a guilty plea. Ultimately, the

Trial Court concluded:

This judge also finds now that the plea was still made
knowingly, intelligently, and voluntarily, and there is no
just reason to allow its withdrawal as all the attorneys in
this case (including Mr. Greene) had equal access to all
the discovery with a fair opportunity to view all
discovery (including CSAM and an apparent screenshot
of a twitter communication that the victim was in
college). The fact that Detective Ray was unable to
acquire other social media account records is not relevant
to this courts [sic] inquiry as there is no evidence that the
Commonwealth was ever in possession of those account
records and it is clear from Detective Ray’s testimony
that those records were never part of the
Commonwealth’s discovery in this case. While it is
incumbent on the Commonwealth to provide defense
counsel with any exculpatory evidence knowingly in its
possession, the Commonwealth is not required to
investigate every possible defense for the defendant or
track down every social media account record that the
defendant believes may be “missing” from the discovery.

Record (“R.”) at 305-6. The Trial Court further noted that Wade expressed no

hesitancy or confusion in his plea.

Although the Trial Court focused its final analysis on the duty of the

Commonwealth to provide exculpatory material in discovery, this issue was not the

one raised by Wade in the original motion to withdraw his guilty plea and

advanced by Root at the evidentiary hearing. Instead, Wade argued to the Trial

Court that his guilty plea could not be considered knowing and voluntary due to

Greene’s failure to review the full quantity of digital evidence held at the Crime

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Lab and to conduct further investigation into possible defenses based on that

unreviewed evidence. Again, we note that this argument did not go so far as to

explicitly claim ineffective assistance of counsel. Accordingly, the Trial Court’s

Order remained similarly silent in addressing the elements for ineffective

assistance of counsel, as that claim was not directly argued to that Court.

On appeal, however, Wade fully advances the argument that his guilty

plea should be considered invalid due to ineffective assistance of counsel in failing

to investigate and identify additional, potential defenses prior to the mediation and

plea negotiations. Although the Appellant’s Brief quotes the relevant portion of

the Trial Court’s Order, Wade neglected to address the Trial Court’s failure to rule

on his current, primary argument that Greene provided ineffective assistance

through failure to investigate all of the Crime Lab’s evidence. While Wade offered

significant commentary about the testimony at the evidentiary hearing, he offered

minimal argument addressing the Trial Court’s analysis, findings, and conclusions

in this case.

In reviewing an order denying a defendant’s motion to withdraw a

guilty plea, the Court of Appeals reviews the Trial Court’s findings of fact only for

clear error, while its “application of legal standards and precedents” is reviewed de

novo. Zapata v. Commonwealth, 676 S.W.3d 390, 394 (Ky. 2020) (citing

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Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012)). In Zapata, our

Supreme Court explained:

“If the trial judge’s findings of fact in the underlying
action are not clearly erroneous, i.e., are supported by
substantial evidence, then the appellate court’s role is
confined to determining whether those facts support the
trial judge’s legal conclusion.” Commonwealth v.
Deloney, 20 S.W.3d 471, 473–74 (Ky. 2000). “Mere
doubt as to the correctness of a finding would not justify
reversal, and the appellate court does not consider and
weigh evidence de novo. However, if a finding is
without adequate evidentiary support . . ., the reviewing
court may regard it as clearly erroneous.”
Commonwealth v. Harrelson, 14 S.W.3d 541, 548–49
(Ky. 2000).

676 S.W.3d at 394.

Where an appellant has alleged an invalid plea due to ineffective

assistance of counsel, our Supreme Court has directed the following:

A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance so seriously affected the outcome
of the plea process that, but for the errors of counsel,
there is a reasonable probability that the defendant would
not have pleaded guilty, but would have insisted on going
to trial.

Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001) (quoting Sparks v.

Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986)). A defendant wishing

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to withdraw a guilty plea “must allege facts that, if proven, would support a

conclusion that the decision to reject the plea bargain and go to trial would have

been rational, e.g., valid defenses, a pending suppression motion that could

undermine the prosecution’s case, or the realistic potential for a lower sentence.”

Commonwealth v. Thompson, 548 S.W.3d 881, 894 (Ky. 2018).

Here, Wade’s failure to raise directly the question of ineffective

assistance of counsel frustrated the Trial Court’s review and resulted in an Order

that did not clearly address the proper legal standards and precedents associated

with that claim. His reticence to confront initial counsel below significantly

undermines his current claims on appeal. Had Wade properly raised the issue of

whether Greene’s performance could be considered ineffective assistance of

counsel, as he attempts to do now for the first time, the Trial Court’s order could

have addressed the relevant factors in a more comprehensive manner.

Nonetheless, the Order does adequately address the necessary elements of this

claim to allow this Court to review the Trial Court’s findings for abuse of

discretion in the absence of more particular application of the law.

On appeal, Wade explicitly alleges that Greene did not provide

services within the range of professionally competent assistance because of his

failures to: (1) obtain a full, sanitized copy of all social media accounts and both

phones, and alternatively (2) travel to the Crime Lab to review the full, unredacted

-9-
versions. In other words, Wade alleges that Greene failed in his duty to investigate

the evidence and the potential defenses that might arise. However, in so doing,

Wade ignores the existing, undisputed, and critical evidence that Greene flatly

informed Wade that he had not reviewed all of the evidence; and Wade chose to

proceed forward with the agreement anyway. We will not turn a blind eye to these

facts on appeal.

Our Supreme Court has held “that counsel has a duty to make

reasonable investigation or to make a reasonable decision that makes particular

investigation unnecessary under all the circumstances[.]” Haight v.

Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by

Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). “A reasonable

investigation is not an investigation that the best criminal defense lawyer in the

world, blessed not only with unlimited time and resources, but also with the benefit

of hindsight, would conduct.” Id. (citing Thomas v. Gilmore, 144 F.3d 513 (7th

Cir. 1998)). Rather, the question is more appropriately tailored to “whether the

known evidence would lead a reasonable attorney to investigate further.” Wiggins

v. Smith, 539 U.S. 510, 527, 123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471 (2003).

In this case, there is no question that Greene never reviewed the

entirety of the Crime Lab’s evidence, which is undisputedly voluminous and

includes significant numbers of messages, screenshots of messages, and other

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communications that largely contain no reference to the indicted offenses. The

question is instead whether Greene reasonably decided not to conduct further

investigation in light of all the facts in this case.

While not explicitly addressing this question, the Trial Court’s Order

does include findings of fact directly based upon Greene’s testimony that he had

reviewed the evidence that the Commonwealth intended to introduce at trial. The

Order also notes that Greene testified that this evidence alone informed his

professional opinion that a plea deal would offer the best outcome for Wade.

Further review of the underlying record shows that Greene indicated that he had

explored Wade’s contention that he had been misled as to C.M.’s age, testifying

that he had requested specific material related to C.M.’s representation of her age

on social-media posts and in conversations with Wade. He testified that he had

particularly requested from Ray additional, social-media account records whenever

Wade identified an account as being missing from the provided discovery. Green

emphatically described an ongoing process of requesting, reviewing, and

identifying new evidence as it came to light.

Critically, Greene testified that he did not believe that any of the very

damning evidence that he had reviewed or of which he had been informed, if

admitted at trial, would likely lead to a lesser sentence than that offered; rather, it

would potentially lead to a far greater sentence for Wade. Indeed, Wade faced a

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70-year sentence at trial, and the evidence the Commonwealth planned to introduce

in support of the indictment was graphic in its culpability. Greene confirmed that it

was his professional opinion that Wade should avoid a jury trial, that he had

participated in mediation on Wade’s behalf to negotiate a plea deal as a result of

that opinion, and that he had communicated this advice to Wade in recommending

he accept the plea offer. Our review has not uncovered any convincing evidence

from Wade that Greene did not make a reasonable, professional decision that

further investigation of the Crime Lab’s evidence was unnecessary as it would not

change the probable outcome and Greene’s strategy and advice based upon that

likelihood.

Furthermore, Wade also failed to establish the required element that

he must show that this lack of investigation actually prejudiced his decision to

accept the plea offer. On appeal, Wade offers no argument that exculpatory

evidence had been withheld. Instead, he identifies only speculative suggestions

that further investigation might have benefitted him at trial. This showing, or

rather lack thereof, falls far short of the burden that an appellant must meet when

asserting that his prior decision to plead guilty should be adjudged invalid due to

ineffective assistance of counsel. As noted in Thompson, some of the facts that

would support a rational decision to reject a plea offer and go to trial would include

the existence of valid defenses or the realistic potential for a lower sentence. 548

-12-
S.W.3d at 894. This strategy is consistent with our cases addressing ineffective

assistance of counsel, which note that “counsel cannot be ineffective for failing to

raise an unmeritorious argument” or one that has only “uncertain viability.”

Fowler v. Commonwealth, 634 S.W.3d 605, 614, 615 (Ky. App. 2021).

During the plea colloquy, Greene confirmed to the Trial Court that he

had discussed potential defenses to the charges with Wade. He did not offer any

statement of what those defenses might have been, and he was not required to do

so. However, the plea colloquy was without question one of Wade’s many

opportunities to talk to the Trial Court about the evidence against him. Testimony

and other appearances by Greene before the Trial Court suggest that the primary

defense that he contemplated was that Wade had a genuine lack of knowledge of

C.M.’s true age at the time of the alleged assault. At the evidentiary hearing, Wade

suggested for the first time that knowledge of the additional evidence reviewed by

Root would have induced him to reject the plea offer, as it supposedly gave rise to

additional defenses that were unknown to him at the time of the mediation.

In its order, the Trial Court expressly noted that Wade had asserted

that he had been provided with new information by Root of which he had been

unaware before entering his plea. In the face of those statements, which the Trial

Court concluded were unsubstantiated, it stated: “No specifics were given as to

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what that information was, where it was obtained, or how it would have impacted

his decision to plea rather than go to trial.” R. at 304.

Wade did attempt, improperly, to solicit information about C.M.’s

other sexual encounters. At the evidentiary hearing, the Trial Court sustained the

Commonwealth’s objections to Root’s questioning regarding C.M.’s

communications with other persons, particularly to inquiries of interactions of a

sexual nature with persons other than Wade. And given her young age, consent

was not going to be an arguable point in this case. Although Root’s attempted

questioning suggests one point that he may have intended to argue, he did not

articulate this supposed defense to the Trial Court even in a sidebar conversation

regarding the objected line of questioning. Video Record (“V.R.”) at 9:14:20-

9:15:00. He thus made no record on this issue, and it was his burden to do so. His

decision thwarted the Trial Court’s ability to review an alleged defense. However,

it is unlikely that a clearer articulation below would have changed the outcome of

this case, as the arguments suggested on appeal could best be characterized as

having “uncertain viability” even if properly raised. See Fowler, 634 S.W.3d at

615.

First, Wade’s briefs identify conversations with other men and social

media posts found on C.M.’s phone that could have led Wade to believe that she

was older than her 14 years at the time he began interacting with her. Notably,

-14-
though, Greene testified that he had specifically requested any material having to

do with C.M.’s asserted age in his discovery requests and conversations with Ray.

Moreover, no specific evidence has been identified by any party that clearly shows

that C.M. misrepresented her age online. More importantly, Wade has not claimed

that these communications would show that C.M. misrepresented her age to Wade.

Accordingly, there is no indication that further review of the evidence by Greene

would have changed his professional opinion regarding the viability of this

defense. And questioning as to the minor victim’s prior sexual history is of course

unavailing, as discussed below.

Second, Wade infers that the conversations between C.M. and other

men would affect the credibility of her statements regarding the facts underlying

the rape and sodomy charges at trial. Because C.M. was over the age of 12 at the

time that the alleged offenses occurred, the charge of First-Degree Rape relied on

her statement that the sexual acts had been forced on her by Wade. If a jury did not

find her testimony entirely credible on the element of forcible compulsion, Wade

could instead have been found guilty of the lesser included offense of Third-

Degree Rape based solely on the fact that C.M. was under 16 at the time the

offense occurred.

However, there is a significant flaw in this avenue of defense.

Although the Appellant’s Brief cites to multiple Kentucky Rules of Evidence

-15-
(“KRE”) regarding the credibility of a witness’s testimony, it fails to address the

necessary application of KRE 412. This rule states that evidence is generally

inadmissible in criminal proceedings involving alleged sexual misconduct if it is

offered to prove that any alleged victim engaged in other sexual behavior or to

prove any alleged victim’s sexual predisposition. KRE 412(a). Exceptions apply

only to specific sexual behavior that would provide an alternate source of physical

evidence, prove consent due to prior sexual contact between the victim and the

accused, or any other evidence directly pertaining to the offense charged. KRE

412(b)(1). Regardless, “[e]ven if the evidence in question falls within the

exceptions enumerated [in] KRE 412(b)(1), such evidence may still be excluded if

its probative value is outweighed by its prejudicial effect.” Cecil v.

Commonwealth, 297 S.W.3d 12, 17 (Ky. 2009) (citing KRE 403). Our Supreme

Court has confirmed that KRE 412 applies to minors as well as adults and has

barred the admission of similar evidence of a victim’s sexual communications that

“posed a substantial threat of casting [the victim’s] character in a bad light and

distracting the jury from the real issues in the case, the principal evils which KRE

412’s shield is intended to avoid.” Montgomery v. Commonwealth, 320 S.W.3d 28,

43 (Ky. 2010).

At the evidentiary hearing, the Commonwealth repeatedly objected to

any mention of C.M.’s other communications. The Trial Court consistently

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sustained these objections and indicated during the sidebar conversation that it

would not permit this line of questioning even at the evidentiary hearing. As Wade

has still offered no argument as to any manner by which the probative value of this

evidence would allegedly outweigh the clear prejudice to the victim, the Trial

Court’s intended exclusion remains proper. Without any viable defense offered by

the additional evidence, Wade’s suggestions as to an argument fall apart.

Accordingly, even if Greene’s representation had been insufficient, which we do

not find, Wade has pointed to no evidence that shows a reasonable probability that

Wade would have rejected the plea offer and insisted on going to trial.

Finally, Wade argues on appeal that, even if the entered pleas were

found to be valid, the Trial Court erred in refusing to exercise its discretion to

allow the withdrawal. On that subject, our Supreme Court explains:

A plea may be withdrawn if the trial court, in its
discretion, permits the withdrawal. The rule makes clear
that the trial court may permit the defendant to withdraw
even a valid plea. Under our rule, this latter decision is
one addressed solely to the trial court’s sound discretion.
The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.

Zapata, 676 S.W.3d at 403 (citations omitted).

As in Zapata, Wade seeks to set aside his guilty plea under guidance

from the application of federal rulings holding that “motions to withdraw guilty

pleas made before sentencing should be liberally constructed in favor of the

-17-
accused and granted freely.” Appellant’s Brief at 18. However, the Trial Court

included in its Order a summary of the evidentiary hearing testimony, a review of

the detailed questioning performed at the plea colloquy, and the agreement by all

parties that Greene had access to the Commonwealth’s discovery specifically

underlying the charged offenses prior to mediation and Wade’s entrance of guilty

pleas in accordance with the plea negotiations. There is no indication that the

Court reached its decision arbitrarily or unreasonably, particularly given the greater

opportunity of the Trial Court to examine witnesses and assess credibility. Zapata,

676 S.W.3d at 402 (citing Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky.

1978)).

Despite Wade’s failure to raise properly the argument of ineffective

assistance of counsel before the Trial Court, that Court’s findings of facts still

adequately refute Wade’s more direct arguments of ineffective assistance on

appeal. Given the severity of the charges, the nature of the readily-available,

undisputedly-condemning evidence that the Commonwealth planned to introduce

at trial, and the Commonwealth’s repeated objections to any mention of C.M.’s

other communications during the evidentiary hearing, the Trial Court’s conclusion

that there were no grounds to withdraw the guilty plea in this case was supported

by sound legal principles and the facts of the case. While Wade’s failure to

articulate his argument clearly complicated the Trial Court’s review, we find that

-18-
the Trial Court nevertheless reached the correct conclusion that it was not required

to allow the withdrawal of the plea.

Accordingly, we affirm the Trial Court’s Order denying Wade’s

motion to withdraw his guilty pleas pursuant to Kentucky Rules of Criminal

Procedure 8.10.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Meyer Russell Coleman
Department of Public Advocacy Attorney General of Kentucky
Frankfort, Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky

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