BRADLEY A. MCMAHAN V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1201-MR BRADLEY A. MCMAHAN APPELLANT v. APPEAL FROM PULASKI CIRCUIT COURT HONORABLE SAMUEL TODD SPALDING, SPECIAL JUDGE1 ACTION NO. 18-CR-00722 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CALDWELL, AND EASTON, JUDGES. EASTON, JUDGE: This is an appeal from an Order of the Pulaski Circuit Court denying, after an evidentiary hearing, an RCr2 11.42 motion by Appellant Bradley 1 Hon. David A. Tapp, Circuit Judge of the 28th Judicial Circuit (including Pulaski County), became a judge of United States Court of Federal Claims. Because of the anticipated unavailability of Judge Tapp to complete this matter, Judge Samuel Todd Spalding of the 11th Judicial Circuit (composed of nearby Green, Marion, Taylor, and Washington counties) was assigned to preside in this case in 2019. 2 Kentucky Rules of Criminal Procedure.

-- 1 of 32 --

-2- A. McMahan (McMahan) to vacate his final judgment and sentence of imprisonment. McMahan seeks to set aside his conviction, which resulted from a guilty plea, on grounds of ineffective assistance of counsel for failures to assert certain defenses, explain related lesser-included offenses, and to investigate the extent of McMahan’s prior closed head injury. Essentially, McMahan also claims he was coerced to enter his guilty plea. Finding no deficient performance of trial counsel or prejudice to McMahan, the circuit court did not abuse its discretion in denying the RCr 11.42 motion. We affirm. FACTS AND PROCEDURAL HISTORY McMahan and his girlfriend, P.J. Shelton (Shelton), lived in Tennessee. Shelton had two children (ages 12 and 15 in 2018), who were in the custody of Shelton’s mother, Johnny Davis (Davis). McMahan is not the father of these children. Davis and the children lived in Pulaski County. In the days prior to McMahan’s driving from Tennessee to Pulaski County on the morning of November 1, 2018, McMahan and Shelton were arguing. McMahan says he had consumed large amounts of drugs and alcohol, including two pints of vodka and Xanax pills (for which he had no prescription). He had been deprived of sleep as well. Despite the potential effects of these drugs and lack of sleep, McMahan successfully drove the distance apparently without

-- 2 of 32 --

-3- incident. After he got to Kentucky, McMahan said a jail “buddy,” who he could not name, gave him some methamphetamine, and he took some of that. McMahan got to Davis’s home around 8 a.m. before the children went to school. Shelton had previously called Davis to tell her about the fight and McMahan taking off from Tennessee. McMahan insists that he did not forcibly enter Davis’s home. The children did not see how McMahan entered, but Davis was able to warn them as McMahan approached. The children ran to the back of the home and eventually escaped through a window. McMahan says that as soon as he entered the home, Davis waived a knife at him. McMahan was able to dislodge the knife from Davis’s hand. During this first physical contact, McMahan inflicted a broken nose, lacerations, and other substantial blunt force trauma to Davis’s head. Even though Davis was then unarmed and injured, McMahan proceeded to strangle Davis to death with an electrical cord, which McMahan identified as a fan cord. After killing Davis, McMahan chased the children down the road until they escaped into a neighbor’s house. McMahan then fled the scene. McMahan was later apprehended by police. He confessed to the strangulation during an interview. His DNA was located on the electrical cord and in other areas of Davis’s home.

-- 3 of 32 --

-4- McMahan was indicted by a grand jury for the offenses of murder and first-degree burglary. In April 2019, the Commonwealth filed a Notice to Seek the Death Penalty, stating as grounds that the act of killing was intentional and committed during the commission of first-degree burglary. An experienced DPA attorney (Fightmaster) was appointed to the case. She served as lead counsel on McMahan’s legal team composed of members of the DPA’s Capital Crimes Branch in Lexington. McMahan was assigned another public defender (Sands), who served as “second chair.” In addition, the DPA assigned an investigator and mitigation specialist to McMahan’s case. A jury trial was scheduled for March 16, 2020. Prior to trial, the Commonwealth, along with McMahan and his legal team, participated in a mediation. The negotiations lasted approximately 5 hours. McMahan attended the mediation in person with Fightmaster and Sands. The result of the mediation was a plea agreement that eliminated the death penalty and gave McMahan an opportunity for parole after 25 years. Days after the mediation, McMahan entered a guilty plea for both murder and first-degree burglary (with concurrent sentences) and was sentenced in accordance with the plea agreement. Between July 2022 and June 2024, McMahan filed numerous

-- 4 of 32 --

-5- pro se motions for post-conviction relief. In his first CR3 60.02 motion, McMahan claimed that more than 12 grand jurors were empaneled. The circuit court denied the motion, and McMahan did not appeal that decision. McMahan then filed another CR 60.02 motion, as well as an RCr 11.42 motion with a request for an evidentiary hearing. In these motions McMahan alleged ineffective assistance of trial court counsel (IATC) for his counsel’s alleged failures to assert various defenses, to adequately explain the elements of the offenses for which he was charged and lesser-included offenses, and to argue a prior brain injury as mitigating evidence. He also claimed actual innocence for the burglary. The circuit court appointed counsel for McMahan, and the case was continued multiple times for DPA record collection and case review. Then in July 2023, the circuit court granted DPA’s Motion to Withdraw pursuant to KRS4 31.110(2)(c), which allows withdrawal from a proceeding that a reasonable person with adequate means would not be willing to bring at his or her own expense. A few weeks later, McMahan filed yet another CR 60.02 and RCr 11.42 motion, this time claiming his right to a speedy trial was violated because of appellate counsel’s unreasonable delay in getting his plea set aside. 3 Kentucky Rules of Civil Procedure. 4 Kentucky Revised Statutes.

-- 5 of 32 --

-6- In September 2023, the circuit court denied McMahan’s CR 60.02 motions but granted him an evidentiary hearing on his initial RCr 11.42 motion. McMahan filed a Notice of Appeal from this interlocutory order. But prior to resolution of that appeal, the circuit court entered a new Order on November 27, 2023, reconsidering its decision allowing the DPA to withdraw in light of Frazier v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001), and our recently unpublished decision in Iraola-Lovaco v. Commonwealth, No. 2022-CA-1044-MR, 2023 WL 7392831, at *2 (Ky. App. Nov. 9, 2023). The circuit court determined McMahan was entitled to counsel at the evidentiary hearing, so it re-appointed the DPA on McMahan’s RCr 11.42 motion. At a status conference in January 2024, McMahan advised the circuit court he no longer wished to pursue the interlocutory appeal and wanted to move forward with the evidentiary hearing and new counsel on the remaining issues. The matter was then continued several more times at the request of DPA due to the assignment of new post-conviction counsel and the newly appointed counsel’s need to obtain and review records. In June 2024, McMahan filed a pro se motion requesting conflict-free counsel, expressing dissatisfaction with his assigned DPA counsel. He also requested KRS Chapter 31 funding to be evaluated by Dr. Eric Drogin. The circuit court denied the motion about counsel. Dr. Drogin would evaluate McMahan.

-- 6 of 32 --

-7- McMahan’s RCr 11.42 motion was ultimately scheduled for an in- person evidentiary hearing on November 18, 2024. McMahan was transported for this hearing. But appellate counsel appeared virtually due to a scheduling error by her office. The circuit court proceeded with the testimony of McMahan’s trial counsel, Fightmaster and Sands, because neither attorney lived or worked in Pulaski County, and they were no longer employed by DPA. They had appeared in person as required by subpoena. To continue the hearing would have caused substantial inconvenience and more delay. The circuit court heard testimony from Fightmaster and Sands on direct examination, then arranged for McMahan to have a private cell-phone conversation with his counsel as to cross-examination. After cross-examination was complete, the matter was continued so that McMahan’s counsel could be present to call witnesses on McMahan’s behalf and to allow McMahan to more effectively communicate with counsel during the hearing. Unfortunately, that hearing did not occur for another nine months due to repeated continuance requests by counsel as the result of efforts to secure Dr. Drogin as an additional witness. Ultimately, the conclusion of the evidentiary hearing occurred in August 2025, but Dr. Drogin did not testify. He evaluated McMahan at the prison and rendered a report concerning McMahan’s mental health history. The Commonwealth moved to exclude this report on grounds of relevancy, which the

-- 7 of 32 --

-8- circuit court denied. The circuit court determined the report was relevant to the issue of whether it was IATC to fail to obtain such an expert, and whether a reasonable probability existed that, if such expert had been obtained, the outcome of the proceeding would have been different. The only witness who testified at the August evidentiary hearing was McMahan himself. After concluding the testimony and receiving Dr. Drogin’s report into evidence, the circuit court entered an Order on August 19, 2025, denying McMahan’s RCr 11.42 motion. The circuit court concluded as follows: Trial counsel’s representation of the Movant was not deficient pursuant to Strickland [v. Washington, 466 U.S. 668 (1984)]. In fact, the Court concludes trial counsel did an outstanding job of negotiating the plea agreement received by the Movant. The Court agrees with the testimony of Mr. Sands that if this case had gone to trial, the death penalty or life without the possibility of parole were both a distinct possibility. The Court further agrees with Mr. Sands that the plea agreement reached, which was going to be taken off the table by the Commonwealth if the case did not resolve at mediation, was in all likelihood the best case scenario for the Movant considering the facts of this case. The Court concludes the Movant received outstanding representation. Furthermore, even if the Court believed trial counsel’s representation of the Movant was deficient, there is no reasonable probability which exists, but for counsel’s unprofessional errors, that the result of this proceeding would have been different. The evidence against the Movant was overwhelming. The Movant admitted to strangling a 58 year old woman with an electrical cord inside her own residence. This was confirmed by the

-- 8 of 32 --

-9- Movant’s DNA being on the electrical cord. Although the Movant asserts his actions were justified while protecting himself, it is extremely unlikely any reasonable juror would have agreed. The Court notes the broken nose of Davis and lacerations around her face. The conduct began in the presence of two children who were forced to flee the residence through a bedroom window. The circuit court further found it highly unlikely that any jury would have considered McMahan’s substance abuse or past closed head injury to be part of a credible defense or for mitigation of punishment. The circuit court determined that the report of Dr. Drogin provided little substance other than recounting McMahan’s version of events at the time of Davis’s strangulation, and McMahan’s past struggles with substance abuse and a head injury 17 years ago. The circuit court noted that McMahan had never sought social security disability due to the head injury. Rather, McMahan was consistently able to maintain employment. Dr. Drogin simply noted the self-serving claims that McMahan was intoxicated on the morning in question, acted in self-defense, and reiterated McMahan’s sources of interpersonal conflict. Significantly, Dr. Drogin described McMahan as a “cognitively sound individual.” While McMahan claimed he was greatly impaired on the day in question, the circuit court had considerable doubt about this testimony, finding it unlikely he was so impaired considering the specificity of detail he provided at the evidentiary hearing and to Dr. Drogin concerning the events that transpired the day Davis was murdered.

-- 9 of 32 --

-10- Upon denial of the RCr 11.42 motion, McMahan filed this timely appeal. Although McMahan again requested and was provisionally provided with appellate counsel, this Court later granted the DPA’s Motion to Withdraw pursuant to KRS 31.110(2)(c). McMahan then filed his pro se Appellant Brief, which fails to strictly comply with the Kentucky Rules of Appellate Procedure (RAP). And while the Commonwealth filed an Appellee Brief that does comply with our rules, McMahan failed to file a Reply Brief addressing the Commonwealth’s responses. While this Court recognizes that McMahan is a pro se litigant, that does not exempt him from the requirement to follow the RAPs. See Hamilton v. Milbry, 676 S.W.3d 42, 44 (Ky. App. 2023). McMahan’s brief fails to comply with multiple provisions of our RAPs. RAP 32(A)(3) requires that an Appellant’s Brief contain “[a] statement of the case consisting of a summary of the facts and procedural events relevant and necessary to an understanding of the issues presented by the appeal, with ample references to the specific location in the record supporting each of the statements contained in the summary.” (Emphasis added.) Moreover, RAP 32(A)(4) provides: An argument conforming to the statement of points and authorities, with ample references to the specific location in the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

-- 10 of 32 --

-11- McMahan’s Statement of the Case contains no references to the record or preservation statement related to any of his numerous arguments. Statements such as “these issues have been properly preserved in the record by inclusion in McMahan’s post-conviction motion and memorandum” are insufficient to establish where in the record the issue was raised in the trial court proceedings. These deficiencies are violations of RAP 32. Although we would be justified in dismissing the appeal for such non- compliance, or in imposing other consequences to address these deficiencies as outlined in RAP 10(B), we will excuse McMahan’s non-compliance due to the serious nature of the case with a life sentence imposed and because the record in this case is not voluminous. STANDARD OF REVIEW McMahan again5 collaterally attacks his convictions under RCr 11.42 for alleged IATC. A trial court’s denial of an RCr 11.42 motion is reviewed for an abuse of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). 5 To the extent McMahan has already had the opportunity to advance his arguments by direct appeal or in prior post-conviction motions, the circuit court was further justified in denying the latest motion without even considering the merits. See Taylor v. Commonwealth, 354 S.W.3d 592 (Ky. App. 2011).

-- 11 of 32 --

-12- As the Kentucky Supreme Court explained in Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016), we evaluate ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), adopted by this Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Under the Strickland framework, an appellant must first show that counsel’s performance was deficient. Strickland, 466 U.S. at 687. A “deficient performance” contains errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “In the guilty plea context, to establish prejudice the challenger must demonstrate a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (internal citations omitted). “Unless a defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687. When faced with IATC in an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance was reasonable. Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth,

-- 12 of 32 --

-13- 279 S.W.3d 151 (Ky. 2009)). We must analyze counsel’s overall performance and the totality of the circumstances in order to determine if the challenged conduct can overcome the strong presumption that counsel’s performance was reasonable. Haight, 41 S.W.3d at 441–42. The trial court’s factual findings and determinations of witness credibility are granted deference by the reviewing court. Id. Finally, we apply the de novo standard when reviewing counsel’s performance based on the facts found. McGorman, 489 S.W.3d at 736. ANALYSIS At the outset, McMahan criticizes the circuit court because he argues that the court did not consider all the evidence of record in making its decision. This contention has no merit. Also, we have considered the entire record independently. McMahan raises several issues on appeal. First, we will address the numerous claims that he was denied effective assistance of trial counsel. Then we will address his claim that trial counsel coerced him to plead guilty. Ineffective Assistance of Trial Counsel McMahan argues he was denied effective assistance of trial counsel for failures to investigate and to adequately discuss or assert on his behalf the defenses of (1) self-protection, (2) extreme emotional disturbance (EED), and (3) intoxication. He also argues failures to explain possible lesser-included offenses

-- 13 of 32 --

-14- and to fully investigate the impact of his prior closed head injury. We reject each of these contentions for reasons set forth below. (1) Self-defense: McMahan believes he was justified in killing Davis because he claims she was the initial aggressor, and he acted in self-defense. He also claims that trial counsel failed to adequately discuss this defense with him. And he argues here, as he did before the circuit court, that it was IATC for trial counsel to recommend that he accept the Commonwealth’s plea offer in lieu of challenging the charges under a self-defense theory. We disagree. The facts of this case concern a sympathetic victim (a 58-year-old grandmother who had a recent hip replacement surgery) and two sympathetic witnesses (the victim’s own grandchildren) who could competently testify that McMahan was not welcome in Davis’s home on the day of her murder and that they ran in fear for their own lives. Davis refused to allow McMahan to see the children and wielded a knife at him, purportedly to make him leave. McMahan could have left Davis’s home when the argument began. He also could have left Davis’s home after she refused to give him access to her grandchildren. Instead, McMahan, who, at that time was a 34-year-old male, standing more than 6 feet tall, successfully dislodged the knife from Davis’s hand by smashing her face and breaking her nose. Once he

-- 14 of 32 --

-15- dislodged the knife from Davis’s hand, McMahan had yet another opportunity to leave Davis’s home. But he chose to stay. It is highly unlikely that any reasonable jury would believe that, under these facts, McMahan feared for his own life at this point and was justified in continuing the altercation by strangling Davis to death with an electrical cord in her own home. The Commonwealth argued that McMahan had no reason to be in Davis’s home high on methamphetamine after getting into a fight with her daughter. And it was the Commonwealth’s intention to argue that McMahan chased the fleeing grandchildren because he was either going to kidnap or kill them. While Fightmaster testified she did not believe McMahan actually intended to harm the children, she feared it was too much of a gamble to put this evidence in front of a jury. This was a reasonable consideration. Fightmaster also had doubt whether the circuit court would even allow a self-defense argument. And she was right again to be so concerned. Self-defense may not be invoked when the defendant is the initial aggressor. KRS 503.060(3). And in Kentucky, individuals have the right to “stand their ground” in the sanctity of their own home. In Shackles v. Commonwealth, 730 S.W.3d 832, 842 (Ky. 2025), reh’g denied (Feb. 19, 2026), the Kentucky Supreme Court explained that, while a belief in the need for the use of force need not be strong, nor free from

-- 15 of 32 --

-16- contradiction, the complete absence of evidence differs from the existence of contradictory evidence. The language of KRS 503.050(1) plainly and unequivocally states that a criminal defendant may only use force to protect himself against the unlawful physical force of another. Id. Here, as in Shackles, there is no evidence that Davis used any unlawful physical force when she wielded a knife at McMahan. She was engaged in presumably lawful force in the protection of her home and grandchildren. And as our high Court in Shackles clarified, an individual who is not engaging in unlawful conduct and who is in a place where she has a right to be “has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.” KRS 503.055(3). There is no dispute that Davis owned the knife, or that McMahan was standing inside Davis’s home where her grandchildren were also located. McMahan also readily admits he was arguing with Davis when she wielded the knife at him. Davis’s use of force was presumably lawful under KRS 503.055(3) and there was no evidence to prove that McMahan’s use of deadly force, i.e., strangulation with an electrical cord, was in response to any unlawful use of force

-- 16 of 32 --

-17- by Davis as required by KRS 503.050(1). McMahan would not likely have been entitled to assert self-defense under the circumstances of this case. Regardless of Davis’s right to use force in the circumstances, self- defense cannot “exceed that necessary to repel an attack[.]” KRS 503.050 (Commentary). Once McMahan had accomplished the removal of the knife from Davis and she had been seriously injured, he lost his right to use self-defense by proceeding to kill Davis by strangling her. Counsel tried to explain to McMahan that there was a difference between his personal belief that he acted in self-defense and a legal entitlement to claim it. In this case, there may have been a factual dispute about whether McMahan committed the crime of burglary when he entered Davis’s home uninvited. Fightmaster explained to McMahan that it was not in his best interests to take a chance that the jury would believe his version of events over the Commonwealth’s version of events, especially since he was facing the death penalty. And Sands testified he feared that raising such an argument during the first phase of the trial would have infuriated the jury and led them to impose a harsher punishment than the sentence they had negotiated at mediation. It is pure speculation that a jury would have believed McMahan acted in self-defense under the facts of this case. And mere speculation as to how other counsel might have performed either better or differently without any indication of

-- 17 of 32 --

-18- what favorable facts would have resulted is not sufficient to support a claim for IATC. Conjecture that a different strategy might have proved beneficial is also not sufficient. Prescott v. Commonwealth, 572 S.W.3d 913, 921 (Ky. App. 2019) (citations omitted). The reviewing court must “eliminate the distorting effects of hindsight” and should review the reasonableness of counsel’s performance within the context of the circumstances at the time of the alleged errors. Haight v. Jordan, 59 F.4th 817, 831 (6th Cir. 2023) (citing Strickland, 466 U.S. at 689–90). Here, we determine that it was reasonable for trial counsel to forego a self-defense argument, and it was not deficient performance to recommend McMahan resolve the charges by accepting the Commonwealth’s plea offer, which greatly reduced the sentence McMahan faced if convicted at trial by a jury. (2) Extreme Emotional Disturbance (EED): McMahan makes the same IATC argument with regard to an EED defense. But the record indicates Fightmaster analyzed this defense and discussed it with McMahan personally and ultimately determined he would not likely prevail under this theory of the case either. We agree. Fightmaster testified that Shelton and McMahan had a “really rocky relationship,” which may have given rise to an EED defense if Shelton was the victim. But the delay in time between the argument McMahan had with Shelton in

-- 18 of 32 --

-19- Tennessee, and Davis’s murder in Kentucky, made EED a very difficult defense to prove. The defense of extreme emotional disturbance is warranted only when the killing occurs concurrently with a triggering event or shortly thereafter. While there is no definite time frame involved, the triggering event must be “sudden and uninterrupted.” Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky. 1999), as modified (May 3, 1999). Trial counsel’s hesitation to assert an EED defense in this case was thus reasonable considering the alleged triggering event (argument with Shelton) and the lengthy out of state commute to Davis’s home nearly two days later. (3) Voluntary Intoxication: McMahan also argues trial counsel failed to consider how his substance abuse may have affected his decision-making on the day of the murder. But the record indicates Fightmaster and Sands discussed McMahan’s substance abuse issues with him, and with his defense team, and determined that voluntary intoxication was more of a mitigating factor for consideration at sentencing than a valid defense to the crimes. McMahan does not say that someone slipped him the substances he took without his knowledge. He voluntarily drank vodka and took drugs, including the methamphetamine the unknown “buddy” gave him. Voluntary intoxication

-- 19 of 32 --

-20- applies if the defendant is so drunk he did not know what he was doing or he was so confused and impaired that he could not form the mens rea or mental state for the crime. See Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002). McMahan remembers quite clearly what he did and how he did it. He was not so drunk that he could not have formed the intent to kill. The decision to not proceed to trial with an intoxication defense was sound strategy. This determination is reasonable and does not support a claim for IATC. (4) Lesser-Included Offenses: McMahan argues trial counsel failed to discuss lesser-included offenses with him, but he fails to develop any argument as to how this constituted IATC. In addition, the record does not support this claim. Fightmaster testified she consulted with McMahan during the 5-hour mediation, using a whiteboard to help explain his options and potential punishment. She also presented him with a chart addressing possible lesser- included offenses and punishment. The circuit court found this testimony to be credible, and we will not disturb this finding on appeal. See Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006) (citations omitted), overruled on other grounds by Leonard, 279 S.W.3d 151 (a reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge).

-- 20 of 32 --

-21- (5) Closed Head Injury: McMahan next argues he was denied effective assistance of trial counsel for failure to adequately investigate and explore the nature and extent of his documented closed head injury and how it affected his ability to objectively exercise appropriate judgment. McMahan claims such evidence would have reduced his murder conviction to second-degree manslaughter and led to the dismissal of the burglary charge. But the record does not support these claims. Fightmaster and Sands each provided credible testimony that the team investigator and mitigation specialist assigned to McMahan’s case obtained medical records concerning his prior closed head injury, which he suffered in an automobile accident 17 years before the murder. There was limited follow-up after the collision and no specific diagnosis as a result of the injury. McMahan’s legal team reviewed his case monthly among themselves, with other members of the DPA, and in consultation with a mental health expert. And the consensus was that there was insufficient support that the prior head injury exculpated McMahan from criminal responsibility. It was a proper factor discussed with the Commonwealth at mediation and was used successfully to help McMahan’s legal team negotiate a lighter sentence than the death penalty or life without the possibility of parole. It is disingenuous for McMahan to argue that trial counsel failed to investigate his closed head injury. McMahan himself filed his own medical

-- 21 of 32 --

-22- records, which were collected by the DPA pursuant to his authorization permitting trial counsel to obtain them. And he acknowledged at the plea colloquy that trial counsel had sought expert funding to retain a medical expert to address his closed head injury. Trial counsel did not reach the point of hiring an expert because McMahan chose to resolve the case through the mediation. McMahan was evaluated during the post-conviction proceedings, and the report of Dr. Drogin, which was reviewed by both the circuit court and this Court, fails to support McMahan’s claims of a mental deficiency. (6) Miscellaneous arguments: McMahan also complains that trial counsel only met with him twice for approximately 20 minutes each time prior to mediation. He challenges the amount of time and effort put into the legal team’s investigation of his case. Counsel has a duty to conduct a reasonable investigation, including defenses to the charges. “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 . . . . The investigation must be reasonable under all the circumstances.” Haight, 41 S.W.3d at 446. Fightmaster testified that, although she would have preferred to spend more time with McMahan in person, her office was located several hours away,

-- 22 of 32 --

-23- and she was unable to do so due to her case load. But McMahan’s legal team met monthly to discuss his case, and all four members of his defense team were able to conduct multiple phone conferences with him. The team also spent nearly five hours discussing the case at mediation with McMahan and his parents. McMahan fails to assert whether there were other evidence or potential witnesses who could have been discovered if more time was spent on the investigation. He simply makes general complaints about the number of in-person consultations he had with Fightmaster and Sands. This is insufficient to support an IATC claim. This record reveals that trial counsel’s investigative efforts were reasonable. McMahan also insists trial counsel should have honored his “autonomous right” to assert a defense of self-protection. We need not address this claim any further other than to note that the failure to pursue self-defense was not deficient or unreasonable considering the facts of this case, and such failure to exert an unsupported claim of self-defense did not constitute IATC. It was reasonable for trial counsel to believe a negotiated plea was McMahan’s best option because there was simply nothing for a jury to latch onto to support a defense to the crimes or a conviction of a lesser-included offense. “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). And here, McMahan has failed to meet this

-- 23 of 32 --

-24- high burden. Trial counsel’s performance was neither unreasonable nor deficient. McMahan cannot meet the first prong of Strickland. The second prong of Strickland requires that the deficiency must have prejudiced McMahan such that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In the guilty plea context, the reasonable probability would be the defendant rationally deciding to go to trial instead of taking the plea agreement. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Entirely speculative and self-serving assertions that the outcome would have been different are merely “convenient revisionism” and will not be accepted. See Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000), overruled on other grounds by Leonard, supra. Here, McMahan’s bare assertions that, if he had gone to trial a jury would have found in his favor, are speculative and self-serving. Trial counsel did not believe there was any realistic chance for McMahan to be acquitted, and an outcome that avoided the death penalty or life in prison without the possibility of parole was the best case scenario for him. Given the realities of this case, McMahan was facing at least a murder conviction regardless of the burglary charge. If he had received the minimum for the murder, he would serve a 20-year sentence with no parole until serving at least

-- 24 of 32 --

-25- 17.5 years. The worst-case scenario was a death penalty or a life sentence with no chance of parole. He got concurrent sentences for the murder and burglary. So, the burglary (that he now insists he did not commit) did not add to the overall sentence. Although a life sentence was imposed, McMahan has the opportunity to seek parole after 25 years. In the circumstances of this case, McMahan simply cannot meet the second prejudice prong of Strickland. We have analyzed counsel’s overall performance and the totality of circumstances in this case and determined that trial counsel did not commit errors in McMahan’s representation. We further agree with the circuit court that, even if trial counsel had committed errors, no reasonable probability exists that, but for counsel’s errors, the result of this proceeding would have been different. There was no reasonable probability that, but for counsel’s errors, McMahan rationally would not have pleaded guilty and would have insisted on going to trial. The evidence against McMahan was indeed overwhelming, and the successfully negotiated plea agreement in this case substantially reduced the amount of time McMahan must serve in prison. We find no support for McMahan’s various claims of IATC. The circuit court thus did not err in denying McMahan relief under RCr 11.42. McMahan’s general argument, that the circuit court abused its discretion because “it sailed right off into the abyss of speculating what a [j]ury

-- 25 of 32 --

-26- may or may not have found had [he] presented a defense of self-protection, EED and intoxication,” is simply without merit. Coercion McMahan challenges the voluntariness of his guilty plea by arguing that trial counsel usurped his autonomy and coerced him to plead guilty. He asserts that trial counsel refused to listen to his self-defense claims and his denial that he had committed the offense of burglary. Again, he insists he had been invited into Davis’s home, thus there could be no death penalty qualification. And with his statements from the beginning that he acted in self-defense, trial counsel was not at liberty to “steer the ship the other way.” He continues that, by obstinately pursuing and coercing him to plead guilty, trial counsel revoked his agency and rendered him unrepresented in the proceedings. He further maintains that his closed head injury and substance abuse issues caused him to rely solely on trial counsel’s bad advice. Further investigation of his closed head injury was critical in assessing “whether there was a reasonable explanation or excuse” for the resulting murder “the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Again, these claims are without merit and wholly refuted by the record.

-- 26 of 32 --

-27- The general rule in this state is that an unconditional guilty plea waives all defenses except that the indictment does not charge a public offense. Jackson v. Commonwealth, 363 S.W.3d 11, 15 (Ky. 2012) (citation omitted). “This waiver covers most claims of ineffective assistance of counsel[.]” Id. As further discussed by the Kentucky Supreme Court in Jackson, “after a guilty plea, a defendant may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [McMann v. Richardson, 397 U.S. 759, 770 (1970)].” Jackson, 363 S.W.3d at 15–16 (internal quotation marks and citations omitted). “While this may require some analysis of whether trial counsel was ineffective, it is nevertheless a somewhat different and narrower inquiry, since it ultimately focuses on the voluntariness of the guilty plea and not general prejudice or the performance of counsel.” Id. at 16 (emphasis added) (citation omitted). When a defendant claims that his guilty plea was involuntary, “a proper exercise of this discretion requires trial courts to consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel[.]” Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001) (footnote citations omitted).

-- 27 of 32 --

-28- Our de novo review of the record in this case reveals an extensive and in-depth plea colloquy prior to the circuit court’s acceptance of McMahan’s guilty plea. McMahan was present at the hearing with trial counsel. He confirmed that trial counsel answered all questions to his satisfaction and discussed all possible defenses to the charges; confirmed the circuit court had made orders for funding of experts and to examine evidence and investigate; and confirmed he had attended mediation where he acknowledged he was treated fairly. McMahan denied he was promised anything in exchange for his guilty plea and admitted his trial counsel had been responsive. He stated on the record that he was satisfied with trial counsel’s advice. The circuit judge explained that McMahan did not have to enter a plea. The circuit judge discussed the rights McMahan was waiving by entering a guilty plea, as well as the terms of the plea agreement reached at mediation. The circuit judge clarified that the sentence agreement was life without the possibility of parole for 25 years, so there was no possibility of McMahan getting out of custody before November of 2043. McMahan admitted he understood the plea and consequences of it and denied for a second time that there were any threats or promises to accept the Commonwealth’s offer. The circuit judge further explained the consequences of felony convictions if McMahan were to be released in the future on parole.

-- 28 of 32 --

-29- Trial counsel stated she believed McMahan’s plea was knowing, intelligent, and voluntary. She confirmed she had explained to McMahan his possible defenses and mitigation, and the guilty plea was consistent with her advice. McMahan did not object to or challenge trial counsel’s statement in any way. The Commonwealth stated that the plea agreement at issue was the result of extensive mediation. The victim’s daughter was present and participated in negotiations and was also agreeable to the plea. The circuit court then accepted McMahan’s guilty plea and set the matter for sentencing and a pre-sentence investigation. At sentencing, Fightmaster advised the circuit court of discrepancies in the pre-sentence investigation report. Two of those discrepancies concerned clarification that trial counsel worked in the Capital Crimes Branch and the correction of the spelling of someone’s last name. The third discrepancy concerned who said what to whom the day of the murder. Again, McMahan argued the victim was the initial aggressor and this was not included in the narrative of the crime. The trial judge confirmed all three discrepancies and noted that the narrative did not include an assertion of an element of self-defense. Trial counsel confirmed there was no legitimate self- defense “or we wouldn’t be here.” She explained that McMahan’s position was

-- 29 of 32 --

-30- that he did not go to Davis’s home with malicious intent. While he was there, she jumped on his back and she was injured, and the “situation escalated from there.” Trial counsel also stated that McMahan had had a traumatic brain injury, which was documented in the report. Yet trial counsel and McMahan himself both asked the circuit court to follow the plea recommendation. And although McMahan wanted a definite “out date,” he had settled for the possibility of parole. McMahan was then sentenced in accordance with the plea agreement. At the November 2024 evidentiary hearing, Fightmaster testified she believed McMahan understood what he was doing when he entered the guilty plea, and she would not have allowed him to do it if it was not in his best interests. McMahan argues that, had it not been for the errors of trial counsel, he would have insisted on going to trial. But trial counsel did not commit errors. They simply disagreed with McMahan’s unreasonable opinion that he was justified in killing Davis under either a self-defense, EED, or other defense. They also disagreed that the evidence of his closed head injury from 17 years ago, or the evidence of his excessive use of drugs and alcohol on the day in question, could somehow exculpate him from criminal responsibility. McMahan’s arguments go to a difference of opinion as to trial strategy, not to the issue of voluntariness of his plea. And this difference of opinion was resolved by McMahan’s knowing and voluntary acceptance of the Commonwealth’s plea offer.

-- 30 of 32 --

-31- Returning briefly to the IATC claim in the context of voluntariness of the guilty plea, a defendant “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.” Stiger, 381 S.W.3d at 237. McMahan fails to make such a showing. Both trial counsel and the circuit court rejected the arguments that there were valid defenses available to McMahan, or that there was any realistic potential for a jury to recommend a lower sentence. We agree. The record supports the finding that McMahan’s plea was knowing, intelligent, and voluntary, and there is no evidence to support a finding that it would have been rational to reject the plea agreement. The negotiated plea agreement in this case may have saved his life. Our own de novo review of the egregious facts in this case support the circuit court’s determination that, if this case had gone to trial, the death penalty or life without the possibility of parole were both a distinct possibility and even a probability. The plea offer, which was going to be taken off the table by the Commonwealth if the case did not resolve at mediation, was the best case scenario for McMahan. The evidence against McMahan was overwhelming, and the recommendation to accept the plea offer was reasonable. McMahan was satisfied

-- 31 of 32 --

-32- with the plea agreement at the time he entered his guilty plea. The entire basis for withdrawing his guilty plea now is essentially buyer’s remorse. But there is nothing to indicate that McMahan did not enter his guilty plea knowingly and intelligently, and not as the result of coercion. His claim of coercion is without merit. CONCLUSION There was no deficient representation by McMahan’s counsel. Whatever shortcomings McMahan insists happened are simply not enough to establish prejudice. The circuit court did not abuse its discretion in denying relief under RCr 11.42. We AFFIRM. ALL CONCUR. BRIEF FOR APPELLANT: Bradley A. McMahan, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-- 32 of 32 --