FRANK D. HUNT V. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-003391-MR
FRANK D. HUNT
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE ROBERT I. GALLENSTEIN, JUDGE
ACTION NOS. 93-CR-10 and 93-CR-20
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, JUDGES.
HUDDLESTON, JUDGE.
Frank D. Hunt appeals from a Fleming Circuit
Court order that denied in part and granted in part his Ky. R.
Crim. Proc. (RCr) 11.42 motion to vacate a judgment of conviction
on a guilty plea.
The circuit court granted Hunt's motion to run
the life sentence for murder and a five year sentence for theft
concurrently,
rather
than
consecutively
as
in
the
original
judgment, but declined to set aside the judgment.
In March 1993, Hunt was charged in an indictment with one
count of murder Ky. Rev. Stat. (KRS) 507.020 in the shooting death
of Walter "Plank" (Planck).
Over the next several months, the
Commonwealth and Hunt negotiated a plea agreement.
In June 1993,
Hunt was charged in a separate indictment with theft by unlawful
taking
over
$300.00
(KRS
514.030)
involving
seven
firearms,
binoculars and a 1977 Chevrolet automobile taken from Walter
"Plank" on the same day as the murder.
In June 1993, Hunt entered
guilty pleas to the murder and theft charges pursuant to a plea
agreement.
The Commonwealth, as agreed, recommended sentences of
life imprisonment for murder and five years' imprisonment for
theft, with the sentences to run consecutively.
The circuit court
sentenced Hunt to the term agreed upon.
In March 1996, Hunt filed a RCr 11.42 motion alleging
ineffective assistance of counsel related to the guilty pleas and
the sentencing.
The circuit court appointed counsel for Hunt and
conducted an evidentiary hearing.1
Subsequent to the hearing, the
court held that defense counsel rendered effective assistance, but
the five-year sentence for theft was to be served concurrently,
rather than consecutively, with the life sentence for murder.
On appeal, Hunt maintains that his guilty pleas were
constitutionally invalid because counsel misled him as to the
potential range of penalties associated with the murder charge.
According to Hunt, counsel erroneously advised him that, upon
conviction, he could receive the death penalty or life in prison
without parole for twenty-five years.
Hunt contends that he would
not have entered a guilty plea to murder had he known the maximum
sentence was life imprisonment, rather than death or life without
parole for twenty-five years.
1
Several issues raised in the original RCr 11.42 motion were
abandoned at the hearing.
2
The circuit court found that there was a lack of evidence
to establish that Hunt received ineffective assistance of counsel.
In reviewing a circuit court's decision on an RCr 11.42 motion, its
findings of fact made after a hearing are binding unless they are
clearly erroneous. Bell v. Commonwealth, Ky., 395 S.W.2d 784, 785,
cert. denied, 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 535 (1965).
See also Commonwealth v. Payton, Ky., 945 S.W.2d 424, 425 (1997);
CR 52.01.
On the other hand, the court's legal conclusions are
subject to de novo review.
See Thomas v. Kirby, 44 F.3d 884, 886
(10th Cir. 1995) (involving a federal habeas corpus statute similar
to RCr 11.42).
A guilty plea may be rendered invalid if the defendant
received constitutionally ineffective assistance of counsel under
the Sixth Amendment.
Hill v. Lockhart, 474 U.S. 52, 56-57, 106
S.Ct. 366, 369, 80 L.Ed.2d 203 (1985); Shelton v. Commonwealth, 928
S.W.2d 817 (1996). In order to establish ineffective assistance of
counsel, a convicted felon must satisfy a two-part test showing
that
counsel's
performance
was
deficient
and
the
resulted in actual prejudice affecting the outcome.
deficiency
Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985), cert.
denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
Prejudice
focuses
on
whether
counsel's
deficient
performance
renders the result of the proceeding unreliable or fundamentally
unfair.
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,
844, 122 L.Ed.2d 180 (1993). Where a defendant challenges a guilty
3
plea based on ineffective assistance, he must show both that
counsel made serious errors outside the wide range of professionally competent assistance, McMann v. Richardson, 397 U.S. 759, 771,
90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), and that the deficient
performance so seriously affected the outcome of the plea process
that,
but
for
the
errors
of
counsel,
there
is
a
reasonable
probability that the defendant would not have pleaded guilty, but
would have insisted on going to trial.
at 58, 106 S.Ct. at 370;
Hill v. Lockhart, 474 U.S.
accord Sparks v. Commonwealth, Ky.App.,
721 S.W.2d 726, 727-28 (1986).
The burden is on the movant to
overcome
that
a
strong
presumption
constitutionally sufficient.
counsel's
assistance
was
Strickland, 466 U.S. at 689, 104
S.Ct. at 2065; Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878
(1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d
479 (1993).
While we review the circuit court's findings of fact
on the issue of ineffective assistance of counsel for clear error,
the performance and prejudice components of the Strickland test are
considered mixed questions of law and fact, and are thus subject to
de novo review.
Strickland, 466 U.S. at 698, 104 S.Ct. at 2070;
McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996).
Hunt contends that counsel's advice on the potential
penalties for murder was based on an erroneous belief that he
qualified for enhanced penalties under KRS 532.025.
KRS 532.030
authorizes the death penalty, life without parole for twenty-five
years, life imprisonment or a term of not less than twenty years
for conviction of a capital offense, such as murder.
4
However, KRS
532.025
requires
notice
by
the
Commonwealth,
a
hearing
and
consideration by the judge or jury of certain aggravating and
mitigating circumstances before imposition of the death penalty or
life without parole for twenty-five years. KRS 532.025(2)(a) lists
several
aggravating
circumstances
including
the
commission
of
murder while the offender was engaged in the commission of firstdegree robbery or first-degree burglary, and the commission of
murder for the purpose of receiving money or any other thing of
monetary value or for other profit.
(4).
See KRS 532.025(2)(a)(2) and
Hunt argues that he was not eligible for the death penalty or
life without parole for twenty-five years because he was not
charged with murder plus an aggravating factor.
While KRS 532.025 requires the Commonwealth to provide
notice of its intent to seek the death penalty and the evidence
supporting the aggravating factors, the notice does not have to be
in writing.
Francis v. Commonwealth, Ky., 752 S.W.2d 309, 311
(1988). In addition, the aggravating factor or factors need not be
charged or specifically described in the indictment.
Commonwealth, Ky., 793 S.W.2d 802, 804 (1990).
Harris v.
The indictment
charged Hunt with murder and listed possible penalties as death and
life without parole for twenty-five years.
In addition, the
prosecutor notified defense counsel that he considered the case to
be one involving a capital offense subject to a possible death
penalty, and counsel treated it as such. Thus, adequate notice was
provided.
5
During the RCr 11.42 hearing, defense counsel testified
about the circumstances leading to Hunt's guilty pleas.
The
prosecutor practiced an open file discovery policy so counsel
reviewed the police investigative reports, the forensic reports,
photographs of the crime scene, and Hunt's statements to the
police.
In addition, counsel discussed the case with the police
investigator
and
Hunt.
Counsel
testified
that
based
on
his
analysis of the facts and the evidence, he believed the Commonwealth had sufficient evidence of aggravating factors to justify a
prosecution under the death penalty statute.
evidence
possibly
supported
the
Counsel believed the
aggravating
circumstance
of
robbery, burglary or murder for the purpose of receiving something
of monetary value.
During the examination of defense counsel during the
hearing, an audiotape recording of a conversation between counsel
and Hunt concerning the plea offer was introduced in evidence.
At
that time, Hunt's attorney told him that the prosecution had
sufficient factual evidence to submit the case to a jury on the
death penalty, in part because Hunt removed several firearms both
before and after killing the victim. Counsel informed Hunt that he
believed the possibility of the jury imposing a death penalty was
not strong, but the jury could return a sentence of between twenty
years in prison to death.
Hunt argues the case law at the time of the guilty plea
limited situations involving the aggravating factor of murder for
pecuniary gain to the use of the decedent's credit cards, the
6
possible receipt of life insurance benefits or an inheritance by
the defendant.
Hunt further posits that the facts in his case did
not support the statutory aggravating factors of robbery and
burglary as evidenced by the fact that Hunt subsequently was
charged
only
with
theft
of
the
firearms,
binoculars
and
an
automobile.
In Harris v. Commonwealth, Ky., 793 S.W.2d 802 (1990),
the Supreme Court held that a jury's consideration of aggravating
circumstances is not limited to those specifically described in KRS
532.025(2)(a).
See also Jacobs v. Commonwealth, Ky., 870 S.W.2d
412 (1994).
In Bowling v. Commonwealth, Ky., 942 S.W.2d 293
(1997),
court
the
discussed
situations
consistent
with
the
commission of burglary and robbery upon a victim's premises.
Implicit in this [KRS 511.090(2)] statute is the concept
that license or privilege expires once the person commits
an act inconsistent with the purposes of the business.
Bowling terminated his license to be on the premises when
he committed the criminal acts.
In Tribbett v. Common-
wealth, Ky., 561 S.W.2d 662 (1978), this Court upheld a
burglary charge even though Tribbett was given permission
to enter the dwelling of the victim, because the permission had expired when he killed the victim.
The offense
of first degree robbery is committed even when the robber
decides to steal the property after he kills the victim,
so long as the theft and the murder are part of the same
criminal episode.
In Williams v. Commonwealth, Ky., 639
7
S.W.2d 786 (1982), the Court of Appeals quoted from the
official commentary and held that a first degree robbery
was committed even when physical force was used after the
theft was completed.
Id. at 307.
The Court also indicated that a robbery occurs whether
the item stolen is taken before or after the victim is killed.
Id.2
In this case, the trial court found that defense counsel
discussed
with
Hunt
the
nature
of
the
charges,
any
possible
defenses, the range of penalties authorized by law, the aggravating
circumstances on which the Commonwealth intended to rely at trial,
and the plea offer made by the Commonwealth.
These factual
findings are supported by the record and are not clearly erroneous.
The forensic evidence indicated that Hunt shot and killed
the victim with a rifle as he stood over him; the bullet entered
the top right side of the victim's head and passed through his jaw
into the upper left arm.
The victim was found sitting in a chair
with his head resting on his arm and his legs crossed.
There was
testimony that the victim often slept in the chair in the position
in which he was found.
Hunt has admitted that he shot Walter
2
Hunt discounts reliance on Bowling v. Commonwealth, Ky.,
942 S.W.2d 293 (1997), in determining defense counsel's competence
in this case because Bowling was decided subsequent to the guilty
plea and attorney performance is judged based on the facts viewed
as of the time of counsel's conduct. See Strickland, 466 U.S. at
690, 104 S.Ct. at 2066. However, the quoted portion of Bowling
does not represent a new rule of law or new legal concepts
unavailable in 1993.
As is evident from the cases cited in
Bowling, the Court's discussion merely represented a general review
of the law on robbery and burglary.
8
Planck inside the victim's residence and removed several firearms
from the premises.
Hunt also was in possession of the victim's
automobile and binoculars immediately after the killing.
In
advising Hunt on the potential penalties and the risks of trial,
defense counsel was privy to other information not apparent from
the record.
on
an
The performance prong of the Strickland test is based
objective
standard
professional norms.
2065.
of
reasonableness
under
prevailing
Strickland, 466 U.S. at 688, 104 S.Ct. at
The Court in Strickland said that:
The court must then determine whether in light of all the
circumstances, the identified acts or omissions were
outside
the
assistance.
wide
range
of
professionally
competent
In making that determination, the court
should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case.
At the same time, the court should recognize that counsel
is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment.
466 U.S. at 690, 104 S.Ct. at 2066. See also Wilson v. Commonwealth, 836 S.W.2d at 878-79.
Defense counsel's belief that the
facts in this case supported a possible sentence of death or life
imprisonment for twenty-five years based on aggravated circumstances was not unreasonable.
Commonwealth
to
seek
the
The victim's family pressed the
death
9
penalty,
and
the
prosecutor
originally offered to recommend life without parole for twenty-five
years on a guilty plea.
Counsel's advice to Hunt concerning the
guilty plea offer and the range of penalties was not outside the
range of professionally competent assistance.
Hunt
has
not
satisfied
his
burden
of
Having decided that
establishing
deficient
performance by counsel, we need not address the second prong of the
Strickland test, that is, whether he suffered actual prejudice
because of counsel's error.
See Strickland, 466 U.S. at 697 104
S.Ct. at 2069; Brewster v. Commonwealth, Ky.App., 723 S.W.2d 863,
864-65 (1986).
In his initial RCr 11.42 motion, Hunt alleged that the
circuit court erred when it ordered that his five-year sentence be
served
consecutively
to
the
life
sentence
for
murder.
The
Commonwealth conceded that Hunt was correct, and the circuit court
amended the judgment to provide for concurrent sentences.
Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993).
See
Therefore,
Hunt has received the requested relief on this issue.
For the foregoing reasons, we affirm the order denying
Hunt's RCr 11.42 motion to vacate his judgment of conviction.
ALL CONCUR.
10
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ann T. Eblen
Louisville, Kentucky
A. B. Chandler III
Attorney General
Ian G. Sonego
Asst. Attorney General
Frankfort, Kentucky
11
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