Hinkle v. State

The defendant did not show that his trial counsel was deficient for failing to call four alibi or corroborating witnesses, in the absence of any evidence as to who the potential witnesses were or what their testimony would have been.

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A Floyd County jury found Allen Hinkle guilty of robbery, obstructing a police officer, and battery. In a previous appeal, this Court remanded the case for a hearing on the issue of ineffective assistance of counsel. After a hearing on Hinkle’s motion for a new trial, the trial court concluded that he had received effective assistance and denied the motion. Finding no error, we affirm. In order to establish ineffective assistance of counsel, Hinkle “must show both that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense.”1 There is a “strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct,” and we will affirm the trial court’s decision on this issue unless it is clearly erroneous.2 Hinkle alleges three instances of ineffective assistance of counsel. He contends that trial counsel was ineffective because he: 1 did not call certain witnesses on Hinkle’s behalf; 2 did not adequately meet with Hinkle to prepare for trial; and 3 did not move for a directed verdict on the basis that the State had not established venue. In the first two of these instances, however, he presents nothing more than bare allegations that trial counsel should have acted differently. Hinkle’s failure to provide the evidence required to prove ineffective assistance is fatal to those two claims.3

1. Hinkle contends that trial counsel should have called “up to four alibi or corroborating witnesses,” but did not. Hinkle has not shown who these witnesses were or what their testimony would have been. Without such showing, we cannot evaluate whether the failure to call the witnesses was deficient or whether their testimony might have changed the outcome of the case.4

Hinkle v. State

The defendant did not show that his trial counsel was deficient for failing to call four alibi or corroborating witnesses, in the absence of any evidence as to who the potential witnesses were or what their testimony would have been.

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