VANDERFORD (FAYETTE MILTON) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED DECEMBER 18, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001202-MR
FAYETTE MILTON VANDERFORD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 03-CR-00007
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES.
CLAYTON, JUDGE: Fayette Milton Vanderford, pro se, appeals the Fayette
Circuit Court's order denying his Kentucky Rules of Criminal Procedure (RCr)
11.42 motion to vacate to or set aside the judgment entered against him.
Vanderford bases his RCr 11.42 motion on ineffective assistance of trial counsel.
After a careful review of the record, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Vanderford was convicted, following a jury trial, of robbery, in the
first degree and sentenced to thirty years’ imprisonment. In a previous appeal of
this case, we affirmed Vanderford’s conviction and sentence in an unreported case,
Vanderford v. Com., 2004 WL 1909413 (Ky. App. 2004)(2003-CA-001360-MR).
In doing so, we summarized the facts of the case as follows:
On November 17, 2002, sometime before 1:30
a.m., Fayette Milton Vanderford and Lisa Johnson
arrived at a Shell Station located at Todds Road and Man
O'War Boulevard in Lexington, Kentucky. Vanderford
entered the store carrying a crowbar. He jumped over the
counter into the small office area where Tiffany Boulder,
the night clerk, was. Boulder fled, but Vanderford
pursued her, caught her, and demanded the money from
the cash register. Video footage from the station's
security cameras showed Vanderford jumping across the
counter toward Boulder with the crowbar in his hand. It
also showed Vanderford taking money from Boulder.
Vanderford took $109.00 in cash and approximately
$131.00 in cigarettes. Then he and Johnson fled the
scene in a vehicle Johnson was driving.
On January 6, 2003, a Fayette County grand jury
indicted Vanderford on one count of robbery in the first
degree, KRS [Kentucky Revised Statutes] 515.020. The
grand jury also indicted Johnson as well. Vanderford
pled not guilty, and the trial court appointed an attorney
with Fayette County Legal Aid to represent Vanderford.
Johnson, however, pled guilty to facilitation to robbery in
the second degree and, in exchange for the amended
charge, agreed to testify against Vanderford.
Shortly before trial, counsel became concerned
over Vanderford's strong religious beliefs because,
according to counsel, Vanderford was not assisting in
trial preparation. According to counsel, every time he
broached the subject, Vanderford would tell him that God
-2-
would “deliver” him. Counsel advised Vanderford that
the evidence was overwhelming, and he asked
Vanderford for his input regarding a defense. However,
Vanderford merely told counsel that God would show
counsel the way when the time came.
As the trial date approached, the Commonwealth
made a plea offer of ten years but Vanderford refused it.
Later, the Commonwealth had difficulties locating
Boulder, who was subpoenaed to testify against
Vanderford. Due to this, the Commonwealth offered to
amend the charge to robbery in the second degree with a
sentence recommendation of five years. Defense counsel
conveyed this new offer to Vanderford. However,
Vanderford rejected it and told counsel that he believed
that God would not allow him to be sentenced to more
than one year.
After counsel conveyed Vanderford's rejection to
the Commonwealth, the prosecutor withdrew the fiveyear offer. However, a few days later, Vanderford told
counsel that he wanted to take the five years. Counsel
told this to the prosecutor. The prosecutor rejected this
but made a new offer to amend the charge to robbery in
the second degree with a sentence recommendation of
seven years. Counsel conveyed this new offer to
Vanderford, but he rejected it as well.
At this point, counsel made an oral motion for
Vanderford to be evaluated for competency. Counsel
stated his belief that Vanderford's religious faith was
excessive to the point of fanaticism and it rendered
Vanderford irrational. At a hearing, counsel argued that
Vanderford was unable to consider what was in his best
interest due to his overpowering religious zeal. As proof
of this, counsel argued that Vanderford had repeatedly
told counsel that God would “deliver” him despite the
evidence. Counsel argued that Vanderford's rejection of
both the five-year offer and the seven-year offer clearly
demonstrated that he lacked competency.
The trial court questioned Vanderford at length
whether he understood the nature and the consequences
-3-
of the proceedings against him. He told the trial court
that he understood that he had been charged with robbery
in the first degree, a felony. He told the trial court that he
understood that if he proceeded to trial that he could be
convicted; that he could be sentenced up to twenty years;
and that he would not be eligible for parole until he had
served eighty-five percent of his sentence. He told the
trial court that he understood the evidence against him
was very strong and that he had limited options regarding
a defense.
Moreover, Vanderford told the trial court that he
never threatened Boulder verbally or physically and
never brandished the crowbar in such a way to have
threatened her; thus, he felt that he was not guilty of
robbery in the first degree. Vanderford continued to
insist that God would deliver him. When the trial court
asked him how God would do this, he told the court that
he did not know. Nevertheless, he told the Court that he
had faith in God and felt that God would not let him
serve more than a year. Despite this, he readily
acknowledged that it may be God's will that he serve
twenty years.
Near the end of the hearing, Vanderford repeatedly
asked the prosecutor for leniency and asked her not only
to recommend a five-year sentence but also asked her to
recommend probation. Vanderford reasoned that since
his co-defendant, Johnson, received probation, he ought
to as well.
After listening to Vanderford, the trial court found
no reasonable basis to question Vanderford's
competency, thus, denied the defense motion.
Subsequently, Vanderford proceeded to trial. The jury
convicted Vanderford of robbery in the first degree and
sentenced him to eighteen years. Counsel then filed an
appeal on Vanderford's behalf.
Discretionary review of the decision was denied by the Kentucky Supreme Court
on April 13, 2005.
-4-
Subsequently, on February 7, 2006, Vanderford filed an unverified
RCr 11.42 motion to vacate alleging that counsel was ineffective for failing to
assert an extreme emotional disturbance defense to the robbery charge.
Additionally, Vanderford contended that his counsel was ineffective not only in
failing to assert his mistaken identity defense but also not asserting some acts and
omitting others. After filing his motion, Vanderford was appointed counsel who
supplemented Vanderford’s memo and raised the additional claim of ineffective
assistance by counsel for failing to call witnesses in mitigation of punishment.
The court held a hearing on the motion on May 29, 2008. The only
witnesses were Vanderford and his original counsel, Gene Lewter. Lewter
outlined a lack of cooperation by Vanderford in preparing for trial and his
continued insistence that God would provide. Additionally, Lewter testified that
Vanderford did not give him the names of any witnesses. The court denied the
RCr 11.42 motion after the hearing for the following reasons: extreme emotional
disturbance is not a defense to robbery; Vanderford did not provide the names of
witnesses; and, even if he had, it was not shown that this testimony would have
made a difference. A written order confirming the above decision was entered the
following day, and Vanderford appeals from this order.
STANDARD OF REVIEW
The standard of review for denial of a motion for post-judgment relief
under RCr 11.42 is well-settled. Generally, to establish a claim for ineffective
assistance of counsel, a movant must meet the requirements of a two-prong test by
-5-
proving: 1) counsel's performance was deficient; and 2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); accord Gall v. Com., 702 S.W.2d 37 (Ky. 1985), cert.
denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Under Strickland,
the standard for attorney performance is reasonable, effective assistance. A
movant bears the burden of establishing that his counsel's representation fell below
the objective standard of reasonableness. In doing so, he must overcome the strong
presumption that counsel's performance was adequate. Jordan v. Com., 445
S.W.2d 878 (Ky. 1969); McKinney v. Com., 445 S.W.2d 874 (Ky. 1969). Unless a
defendant makes both showings, it cannot be said that the conviction resulted from
a breakdown in the adversarial process.
ANALYSIS
1) Counsel was ineffective because he failed to present evidence on
Vanderford’s behalf at the hearing requesting a competency evaluation.
Vanderford, with this argument, changes his argument on appeal. His
original argument was that of extreme emotional disturbance. Moreover, this issue
was addressed in the previously cited unreported Court of Appeals opinion. In that
opinion, we wrote that the Fayette Circuit Court held a competency hearing
wherein Vanderford was thoroughly questioned about whether he understood the
nature and consequences of the proceedings against him. The record of the trial
demonstrated that Vanderford understood both the nature and the consequences of
the proceedings against him. The Court held that a reasonable judge in the same
-6-
situation as the trial court would have not experienced doubt regarding
Vanderford's competency to stand trial, and thus, the trial court did not err.
Given that the issue of competency, albeit through an ineffective
assistance of counsel claim now, has already been determined, we will not address
it again. It has been clearly established that an issue raised and rejected on direct
appeal may not be relitigated in an RCr 11.42 proceeding by claiming that it
amounts to ineffective assistance of counsel. Brown v. Com., 788 S.W.2d 500 (Ky.
1990); Stanford v. Com., 854 S.W.2d 742 (Ky. 1993).
2) Counsel was ineffective because he failed to introduce mitigating
evidence during the penalty phase.
Vanderford argues that Lewter did not present or attempt to present
mitigation witnesses during the penalty phase. This argument was fully vetted at
the hearing on the RCr 11.42 motion. At the evidentiary hearing, Vanderford had
the opportunity to provide evidence of his counsel’s failure to introduce mitigating
evidence at the penalty phase. But Vanderford offered no such evidence. The
strong presumption that counsel's performance was effective cannot be overcome
by speculation and innuendo concerning the actions by counsel in preparing the
case. In order to prove that his counsel’s performance was below the objective
standard of reasonableness, the facts must show that Vanderford was deprived of a
fair trial and a reasonable result. Strickland, supra. Here, Vanderford at his
evidentiary hearing on this issue failed to provide any evidence that counsel’s
actions prejudiced his ability to receive a fair trial.
-7-
Finally, we are aware that the Vanderford’s motions in circuit court
were not verified as required by RCr 11.42, and that motions may be summarily
dismissed for failure of the movant to sign and verify the motion. RCr 11.42(2).
See Bowling v. Com., 981 S.W.2d 545 (Ky. 1998). But while we agree with the
importance of verification, in this case we will not substitute our opinion for that of
the trial court, particularly in light of the language that says the trial court “may”
dismiss the case.
CONCLUSION
For the foregoing reasons, the opinion and order of the Fayette Circuit
Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Fayette M. Vanderford, pro se
Central City, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.