Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1311-MR CODY ARNETT APPELLANT APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE KATHRYN H. GABHART, JUDGE ACTION NO. 18-CR-00304 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND KAREM, JUDGES. THOMPSON, CHIEF JUDGE: Cody Arnett appeals from orders of the Scott Circuit Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Rules of Criminal Procedure (RCr) 11.42 motions. Appellant raises three issues on appeal: that the Commonwealth withheld a statement made by the victim that would have provided exculpatory evidence; that the Commonwealth withheld other witness statements from him that could contain exculpatory evidence; and that he had ineffective assistance of trial counsel. We believe a hearing is needed regarding the second claim of error, but affirm the other conclusions of the court. We affirm in part, reverse in part, and remand for an evidentiary hearing. FACTS AND PROCEDURAL HISTORY The underlying facts of this case concern the rape of a woman in 2018. A jury trial was held over several days in July of 2021. The defense argued that the woman invited Appellant into her apartment where to two engaged in consensual sex. The prosecution claimed that Appellant entered the unlocked door of the victim’s apartment, found her asleep on the couch, and then raped her multiple times. At the conclusion of the jury trial, Appellant was convicted of a number of crimes and sentenced to life in prison. Appellant eventually appealed his conviction to the Kentucky Supreme Court, which affirmed. Arnett v. Commonwealth, No. 2022-SC-0006-MR, 2023 WL 7100423 (Ky. Oct. 26, 2023). On December 1, 2023, Appellant, pro se, filed a CR 60.02 motion seeking to vacate his conviction. Appellant alleged that the victim gave a statement to Georgetown College1 officials which contradicted her testimony at trial. Appellant alleged that the statement to the officials was made prior to trial, that the Commonwealth knew about the statement, and that the Commonwealth did 1 The victim was a student at Georgetown College at the time of the crime. -2- not inform Appellant of the statement in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Department of Public Advocacy (“DPA”) later began representing Appellant and supplemented his CR 60.02 motion. The DPA also raised allegations pursuant to RCr 11.42. The additional arguments raised by Appellant were that Assistant Commonwealth Attorney Kate Bennett2 sent a letter to the Kentucky Bar Association Ethics Hotline where she alleged that the Commonwealth Attorney, Sharon Muse-Johnson, required her office to record witness statements, that some of these statements contained exculpatory evidence, and that the recorded statements were not turned over to defense. A copy of the letter and a news article discussing the letter were included with the motion. Appellant claims that this too violated Brady v. Maryland. Finally, Appellant argued that he had ineffective trial counsel because, during the penalty phase of trial, counsel allowed the jury to see documents pertaining to previous criminal charges for which he was not convicted.3 The trial court did not believe a hearing was necessary for all issues raised by Appellant. The victim had recorded her meeting with the Georgetown College officials and that recording was submitted to the court. The trial judge 2 Honorable Kate Bennett no longer worked for the Commonwealth Attorney’s office at the time Appellant filed his posttrial motions. 3 Appellant raised other issues in his motions, but only those we have mentioned have been raised on appeal. -3- reviewed the statement in camera, determined it was not exculpatory, and held there was no Brady violation. As for the allegations from Assistant Commonwealth Attorney Bennett, the court believed her statement regarding the alleged recordings was hearsay and inadmissible. In addition, the statement did not specifically reference Appellant’s criminal case. The court struck the letter and the news article from the record and gave Appellant time to seek out an affidavit from Assistant Commonwealth Attorney Bennett regarding her allegations. Assistant Commonwealth Attorney Bennett did not cooperate with Appellant’s counsel and no affidavit was obtained. The court dismissed this allegation without a hearing. Finally, the court did hold a hearing regarding the documents of criminal charges, but the court ultimately found that trial counsel was not ineffective. This appeal followed. STANDARD OF REVIEW Before we begin our analysis on the merits, we must first determine what standard of review we are to use. Appellant raised issues via CR 60.02 and RCr 11.42. All issues before us that were raised via Appellant’s pro se CR 60.02 motion were also later raised in the DPA’s RCr 11.42 motion. The issues before us today are those that can be brought via RCr 11.42 motions; therefore, we will review all issues using the RCr 11.42 standard of review. See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). -4- RCr 11.42 provides a procedure for a motion to vacate, set aside or correct sentence for a prisoner in custody under sentence or a defendant on probation, parole or conditional discharge. It provides a vehicle to attack an erroneous judgment for reasons which are not accessible by direct appeal. To prevail on an RCr 11.42 motion, the movant must convincingly establish he was deprived of some substantial right justifying the extraordinary relief afforded by the post-conviction proceeding. Bratcher v. Commonwealth, 406 S.W.3d 865, 869 (Ky. App. 2012) (internal quotation marks and citations omitted). Motions which fail adequately to specify grounds for relief may be summarily denied, as may be motions asserting claims refuted or otherwise resolved by the record. Motions adequately alleging valid claims not refuted by the record entitle the movant to an evidentiary hearing. . . . [W]e review the trial court’s factual findings only for clear error, but its application of legal standards and precedents . . . we review [de novo]. Commonwealth v. Pridham, 394 S.W.3d 867, 874-75 (Ky. 2012) (citations and footnote omitted). As it pertains to the ineffective assistance of counsel claim, to prevail on such a claim, Appellant 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 -5- serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (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. Id. at 691-92 (citations 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. ANALYSIS Appellant’s first argument on appeal is that he was denied a fair trial when the Commonwealth failed to turn over a statement made by the victim to defense counsel. During the pendency of the criminal case, the victim attended a -6- meeting with Georgetown College officials. During this meeting she talked about her rape and other issues. The Commonwealth Attorney was also present at this meeting. Unbeknownst to the Commonwealth or the defense at the time, the victim recorded the meeting. The recording came to light after Appellant’s conviction. Nevertheless, Appellant argues that, because the Commonwealth Attorney was present, she knew of the statements made by the victim and should have informed the defense. Appellant alleges the failure to inform the defense violated Brady v. Maryland. In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Under the Brady doctrine, evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This Court reviews de novo whether the particular material at issue falls under Brady. A “reasonable probability” may be defined as “a probability sufficient to undermine confidence in the outcome.” The duty to disclose exculpatory evidence is applicable regardless of whether or not there has been a request by the accused, and the duty to disclose encompasses impeachment as well as other exculpatory evidence. Brady only applies to information “which had been known to the prosecution but unknown to the defense.” -7- Commonwealth v. Bussell, 226 S.W.3d 96, 99-100 (Ky. 2007), as modified (Aug. 30, 2007) (footnotes and citations omitted). “[A] Brady violation is established when three elements are met: [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Mills v. Commonwealth, 718 S.W.3d 577, 583 (Ky. 2025) (internal quotation marks and citation omitted). The following is a quote from statements the victim made during the meeting she had with Georgetown College officials: I mean, at this point I just feel like because of the situation with me talking about it with, I was talking about it with one of my teammates because they had asked me, they asked me about it, they asked me about how it was going, and I didn’t even notice that the recruit was there because I was having a conversation with someone else. And even if that recruit is there, I still feel like she should know what happened here. It’s like, it’s—it’s like you want to protect Georgetown’s reputation or their legacy by—by keeping this a secret. Because it’s not a secret. It’s—it’s all over the news. It’s—it’s not a secret. It is—and it is definitely not something that I’m going to keep a secret. If someone asks me how I am and how—how everything is going, and you know, if they ask me about it, I’m going to tell them. I’m not going to say, oh well, we need to keep it hush-hush because this recruit is here, and we have to make Georgetown look good. Georgetown is a great school, but it doesn’t matter what school they go to. Something like this will have happened at whatever college that they look at. And the more information that they know, I feel like it should make their decision a little -8- bit easier. Because if they know what happened to me, and if they—they—anybody can ask me, I’m very open to talk about it. And if they wanted to ask me about what happened, I’d be perfectly okay with talking about it. And maybe that could save them down the line. You know, lock your door, don’t talk to strangers that, you know, you meet in the middle of the night. You know, just keeping—keeping themselves safe by knowing what happened to me is the whole purpose of why I want to talk about it, and why I want it to be known. So I—I just—I don’t want—I don’t want to feel like my situation is an embarrassment because that is—that is what’s coming off at this point. Because not—not wanting a recruit to hear that one of her potential teammates was raped violently on this campus is just, it’s cruel because I—I—I know I don’t deserve that. (Emphasis added.) Appellant claims that the victim’s statement, “You know, lock your door, don’t talk to strangers that, you know, you meet in the middle of the night,” is exculpatory because it supports his theory that the victim let him into her apartment on the night in question. The trial court listened to the recorded statement and determined no further action, such as a hearing, was necessary because the recording spoke for itself. The court then held that the recording and the victim’s statement would not support Appellant’s version of events. We agree. The victim is clearly speaking generally about warning other people to be wary of strangers and not about her encounter with Appellant specifically; therefore, we do not believe the statement is exculpatory or impeaching. Furthermore, the evidence against Appellant was -9- overwhelming. There was physical evidence, video evidence, and witness testimony from the victim and others, all of which supported the victim’s version of events. Had this statement been disclosed to the defense before trial, there is no reasonable probability that the outcome would have been different. Appellant cannot meet the Brady threshold as to this issue; therefore, the trial court did not err in declining to hold a hearing and did not err in denying Appellant’s motion as to this claim. We now move on to the allegations from Assistant Commonwealth Attorney Bennett. We believe a hearing is required on this issue because the allegation cannot be resolved by the record. Appellant made a claim that witness recordings were withheld from him and provided some proof to support his allegation. Assistant Commonwealth Attorney Bennett refused to cooperate when counsel sought out an affidavit; therefore, counsel requested a hearing in order to subpoena her. We agree with the trial court that the letter and the article did contain hearsay evidence. That evidence could not go toward the ultimate conclusion regarding the potential Brady violation or whether RCr 11.42 relief is required, but we do believe it was unreasonable not to consider it for the purposes of granting a hearing as it tended to support Appellant’s allegation and show it was not a fishing expedition. A hearing is needed for this issue. -10- Appellant’s final argument on appeal is that the trial court erred when it concluded that his counsel was not ineffective when the jury was allowed to see indictment materials, and these indictment materials included crimes for which he was not convicted. A hearing was held on this issue and Appellant’s trial counsel, of which there were two, testified that these materials should not have been disclosed to the jury and that it was an error for them not to object. Even the Kentucky Supreme Court in Appellant’s direct appeal concluded that such information should not have been given to the jury. Arnett, 2023 WL 7100423, at *10. The information given to the jury was as follows: In 2006, in Jessamine County, Arnett was indicted for driving under the influence, fleeing or evading first degree, and theft of identity first degree. His judgment noted dismissal of the fleeing or evading charge. In 2007, also in Jessamine County, Arnett was indicted for robbery in the first degree and being a persistent felony offender. The judgment from that matter stated “robbery second degree as amended.” In 2015, in Fayette County, Arnett was indicted for two counts of robbery in the first degree, one count of fleeing and evading, and [persistent felony offender] PFO-2. The final judgment in that matter notes that the fleeing and evading charge was dismissed and both robbery counts were amended to robbery in the second degree. Id. The trial court held that, even though this was an error, Appellant did not suffer so much prejudice that the outcome of the case would have been -11- different. We agree. When comparing the crimes for which Appellant was originally charged to the crimes for which he was ultimately convicted, there is not much difference. First-degree robbery charges became second-degree robbery convictions, and two fleeing and evading charges were dismissed. Considering the plethora of evidence against Appellant and the violent nature of his crimes, this error was small and inconsequential. Had the jury not seen the indictment materials, the outcome of this case would have been the same. CONCLUSION Based on the foregoing, we affirm in part, reverse in part, and remand. We affirm the judgment of the trial court as it pertains to the victim’s statement to Georgetown College officials and the ineffective assistance of counsel claim; however, we reverse the court’s judgment as to the claim involving Assistant Commonwealth Attorney Bennett. We believe a hearing is needed and remand for further proceedings. JONES, A., JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION. KAREM, JUDGE, CONCURS. JONES, A., JUDGE, CONCURRING: I concur with the majority’s Opinion, but I write separately to further explain why I believe Arnett was entitled to an evidentiary hearing on his claim that the Commonwealth withheld recorded witness interviews containing exculpatory evidence. -12- First, I believe the circuit court erred by striking former Assistant Commonwealth Attorney Kate Bennett’s letter to the Kentucky Bar Association Ethics Hotline from the record on hearsay grounds. The question at this stage was not whether the letter itself constituted admissible evidence sufficient to establish a Brady violation. Rather, it was whether Arnett had alleged sufficiently specific facts which, if true, would entitle him to relief and which could not be conclusively resolved by reference to the existing record. Commonwealth v. Pridham, 394 S.W.3d 867, 874-75 (Ky. 2012); Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). The letter’s potential inadmissibility as hearsay did not preclude the circuit court from considering it for that limited purpose, nor did it prevent Arnett from seeking to establish the truth of its allegations through Bennett’s testimony at an evidentiary hearing. Second, I disagree with the circuit court’s characterization of Arnett’s allegations as speculative. Although Bennett did not identify Arnett by name, her letter described a criminal jury trial conducted in late July 2021 that resulted in a conviction and a life sentence. Arnett’s trial occurred from July 20 through July 28, 2021, and likewise resulted in a life sentence. Attorney Bennett was among the prosecutors who participated in that trial. These circumstances provide a substantial factual basis from which to infer that Bennett was referring to Arnett’s -13- prosecution. While that inference remains to be established through testimony or other evidence, it is considerably more than mere speculation. Moreover, Bennett’s allegations were not limited to the possibility that undisclosed recordings might contain favorable evidence. She expressly stated that the recorded witness interviews contained “mitigating and exculpatory evidence” and that the recordings were not disclosed to defense counsel before trial. Thus, Arnett did not merely allege that the Commonwealth Attorney’s office had failed to disclose potentially exculpatory evidence in unrelated criminal cases. He presented a written statement from an attorney who participated in his prosecution, describing a trial corresponding to his own and asserting that recorded witness interviews containing favorable evidence had been withheld from the defense. Finally, I find it particularly troubling that the circuit court relied upon Attorney Bennett’s failure to voluntarily provide an affidavit as a basis for denying Arnett an evidentiary hearing. Nothing in the record establishes why Bennett declined to provide an affidavit, and her refusal tells us nothing about whether her allegations concerned Arnett’s prosecution or whether they were true. A potential witness is under no obligation to voluntarily cooperate with a litigant’s efforts to obtain evidence. Indeed, that is precisely why our judicial system provides for compulsory process. By requiring Arnett to obtain Bennett’s voluntary affidavit -14- before granting an evidentiary hearing, the circuit court effectively conditioned his opportunity to develop his claim upon the willingness of a potentially material witness to cooperate outside the judicial process. RCr 11.42 imposes no such requirement. Moreover, even if Attorney Bennett agreed to provide an affidavit, this Court has previously held that affidavits do not obviate the need for an evidentiary hearing; instead, they frequently serve as “an admission that the record [is] insufficient for resolution” of the motion. Knuckles v. Commonwealth, 421 S.W.3d 399, 401 (Ky. App. 2014). I do not suggest that Attorney Bennett’s allegations establish a Brady violation or that Arnett is necessarily entitled to post-conviction relief. Whether the recordings existed, whether they concerned Arnett’s prosecution, whether they contained evidence favorable to his defense, and whether any nondisclosure was material remain unresolved questions. But those are precisely the factual questions an evidentiary hearing is intended to address. On remand, Arnett should be afforded an opportunity to secure Attorney Bennett’s testimony through compulsory process and, as appropriate, to subpoena other witnesses and seek production of any recorded witness interviews or related materials still in existence from his criminal case. In my view, Arnett presented considerably more than a speculative claim. He identified a potential witness with firsthand knowledge, supplied her -15- written allegations, and demonstrated a reasonable factual connection between those allegations and his prosecution. He was entitled to an opportunity to develop those allegations through an evidentiary hearing, regardless of whether Attorney Bennett was willing to cooperate voluntarily. Accordingly, I concur. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Elias Kang-Bartlett Russell Coleman Department of Public Advocacy Attorney General of Kentucky LaGrange, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky -16-