Opinion
NO. 2015-CA-001730-MR
06-09-2017
GEORGE A. LUNA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: George A. Luna Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE DENNIS R. FOUST, SPECIAL JUDGE
ACTION NO. 12-CR-00042 OPINION
AFFIRMING
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BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. COMBS, JUDGE: Appellant, George A. Luna (Luna), pro se, seeks review of the Trigg Circuit Court's denial of his Motion in Vacatur of Judgment of Conviction & Sentence. After our review, we affirm.
In 2007, Luna was indicted on charges of first-degree murder and first-degree arson for killing Debra Hendrickson, an acquaintance, and burning the trailer in which she lived. A jury convicted Luna on all charges and sentenced him to life imprisonment. That judgment was reversed and the case was remanded for retrial in Luna v. Commonwealth, 2008-SC-000652-MR, 2010 WL 4683564, at *4 (Ky. Nov. 18, 2010).
On retrial, the Commonwealth sought statutory aggravators. Luna was again convicted of first-degree murder and first-degree arson. The jury found Luna guilty of murdering Hendrickson during the commission of first-degree robbery and sentenced him to life imprisonment without possibility of probation or parole. On appeal, the Kentucky Supreme Court held that that Luna was entitled to a directed verdict on the charge of first-degree arson because the Commonwealth failed to present sufficient evidence that Hendrickson was still alive before the fire started. Luna v. Commonwealth, 460 S.W.3d 851 (Ky. 2015). However, the directed verdict on the arson charge did not affect Luna's sentence of life imprisonment without benefit of probation or parole for first-degree murder committed in the commission of first-degree robbery.
On August 27, 2015, Luna, pro se, filed a Motion in Vacatur of Judgment of Conviction and Sentence, which the trial court explained was essentially a motion to set aside pursuant to RCr11.42. By Order entered October 5, 2015, the trial court denied Luna's Motion in relevant part as follows:
Kentucky Rules of Criminal Procedure.
The first ground relates to the fact that [Luna] was not indicted on first degree robbery charges, but that the jury found that he committed the act of murder during the course of a robbery. . . . The Court does not make light nor take lightly any case in which a defendant is denied his constitutional right. However, in this case, everything that defendant is claiming is "ineffective assistance of counsel" is nothing more than issues which could have been addressed on appeal but were not.
That brings the Court to the second claim of ineffective assistance of counsel, where [Luna] is claiming that he did not receive effective assistance of counsel on appeal. The Court finds that assertion to be wholly unsupported by the transcript, and particularly by the Supreme Court Opinion. All the issues which were raised in the initial part of this motion are issues that could have been addressed by the Supreme Court. However, this Court would note that this entire matter consists of defendant, against advice of counsel, choosing a path of action in which he attempted to present a self-defense claim. [Luna] was appropriately advised by counsel, and to sum up defense counsel's advice to [Luna] . . . counsel said "I am afraid that if the jury doesn't buy the self-defense theory, it will lead to a harsher sentence". [sic] This assertion by [Luna] in and of itself summarizes why [Luna] does not have an RCr 11.42 claim of ineffective assistance of counsel.
What happened to [Luna] was that he was convicted initially of Murder. That conviction was reversed, and [Luna] was retried. He was again convicted, and given a harsher sentence. At no step in the proceedings did defense counsel do or not do anything which did not meet the standards of competent counsel. . . . None of the claims made by [Luna] are supported by the facts of the case. There are no legal grounds cited in [Luna]'s Brief which would require an evidentiary hearing, as there is quite a sufficient record from which this Court can overrule [Luna]'s motion.
Luna's first ground for appeal is premised on the theory that an offense which the Commonwealth desires to use as an aggravator pursuant to KRS 532.025 must first be charged as an underlying substantive offense by indictment. Luna claims that trial counsel's failure to "appropriately and contemporaneously object to this process" and appellate counsel's failure to raise the issue on appeal under palpable error both constitute ineffective assistance of counsel.
Kentucky Revised Statutes.
The two-pronged test for ineffective assistance of counsel is (1) whether counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)Fraser v. Commonwealth, 59 S.W.3d 448, 456-57 (Ky. 2001).
As Luna acknowledges at page ten of his Brief, aggravators do not have to be charged in an indictment.
Although a defendant cannot be made to face the sentencing phase of a capital trial unless he or she is first given sufficient notice of the Commonwealth's intention to seek the death penalty[,] [t]here is no authority supporting [Appellant's] claim that an aggravating circumstance must be described in the indictment. The Commonwealth complied with KRS 532.025(1)(a) by providing Appellant with written notice prior to trial . . . .St. Clair v. Commonwealth, 140 S.W.3d 510, 560 (Ky. 2004) (internal quotation marks and citations omitted).
As Luna notes at page one of his Brief, the Commonwealth filed a KRS 532.025 Notice of Aggravators prior to trial. We agree with the Commonwealth that there was no error with regard to the statutory aggravators. Consequently, there was no deficient performance either by trial counsel or by appellate counsel. We find no error in the trial court's denial of Luna's motion without an evidentiary hearing. Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014), reiterates the rule of black-letter law that an evidentiary hearing is not necessary where a trial court is able to resolve issues on the basis of the record.
Next, Luna argues that it was ineffective assistance of counsel for his attorney to refuse to present the affirmative defense of self-defense under KRS 503.085(1) "at the critical stage when it was necessary" before trial. That statute provides in relevant part:
A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer . . . .A January 15, 2013, letter to Luna from his attorney, Goodrich, reflects that Luna was "considering changing our defense and adopting a self-defense theory" at a meeting the preceding Friday (Appendix "B," to Luna's Motion). Goodrich advised Luna of his concerns that a self-defense theory could lead to a harsher sentence if the jury did not buy it. Goodrich reiterated this concern in a letter to Luna dated January 30, 2013 (Appendix "C," to Luna's Motion). Nonetheless, Luna ignored counsel's advice. As the trial court noted, Luna's "day of reckoning came, and now [he] is left with the consequences of his actions." The record does not support a finding of ineffective assistance of counsel on this issue.
We affirm the October 5, 2015, Order of the Trigg Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: George A. Luna
Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky