Background
Antonio Sallee’s first trial on rape, sodomy, incest, and sexual-abuse charges ended in a mistrial after the jury could not reach a verdict. A second jury convicted him of multiple offenses involving a victim under 12, and he received a 70-year prison sentence. The Kentucky Supreme Court later reversed those convictions because of unlawful jury instructions and remanded for a new trial.
On remand, Sallee pleaded guilty to two counts of incest and one count of first-degree sexual abuse. He received an aggregate 40-year sentence under an agreement providing for five years of shock probation followed by five years of conditional discharge. The circuit court granted shock probation but later revoked it, and the Court of Appeals affirmed the revocation.
Sallee subsequently sought relief under Kentucky Rule of Criminal Procedure 11.42, alleging ineffective assistance of counsel. The Christian Circuit Court denied his motion, and Sallee appealed pro se.
The Court’s Holding
The Court of Appeals affirmed. Counsel was not ineffective for failing to object when the first trial ended in a mistrial because a hung jury is a classic instance of manifest necessity, making an objection futile. Sallee’s challenge concerning counsel’s failure to object to the second trial’s jury instructions was moot because the Kentucky Supreme Court had already reversed the resulting convictions, nullifying them and providing the relief available for that error.
The record also contradicted Sallee’s claim that he lacked adequate time to review the presentence investigation report: the judgment stated that counsel received the report, the court informed Sallee and counsel of its contents and conclusions, and Sallee agreed with its factual contents. In addition, Sallee failed to show prejudice under the standard governing ineffective-assistance claims arising from guilty pleas. The favorable plea agreement included prompt shock probation, and his later imprisonment resulted from his own probation violations—not counsel’s performance.
Key Takeaways
- Counsel is not ineffective for declining to make a futile objection to a mistrial caused by a hung jury.
- An ineffective-assistance claim based on an error that already produced reversal of the conviction presents no additional basis for relief.
- A defendant challenging a guilty plea must show a reasonable probability that, absent counsel’s alleged errors, the defendant would have rejected the plea and proceeded to trial.
Why It Matters
The opinion illustrates the record-based and prejudice-focused nature of post-conviction review. Allegations contradicted by the judgment will not support relief, and a defendant cannot attribute incarceration following probation revocation to plea counsel when the loss of liberty resulted from the defendant’s later violations.