ROBERT FRAUSTO v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 11, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002914-MR
ROBERT FRAUSTO
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 96-CR-00052
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, McANULTY, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Robert Frausto (Frausto) appeals from an order
of the Adair Circuit Court denying his motion to alter, amend, or
vacate sentence brought pursuant to Kentucky Rule of Criminal
Procedure (RCr) 11.42.
After carefully reviewing the record, we
affirm.
On May 2, 1996, Frausto was at home with his wife,
Carol, their two-year-old son, ten-year-old daughter, and their
four-year-old niece, H.L.
At some point, Carol left the house
for approximately thirty minutes to run some errands, leaving
Frausto alone with the children.
Later that evening, H.L. told
her parents that while she was alone in a bedroom, Frausto came
in and sodomized her.
H.L.’s parents took her to the hospital
where she repeated the allegation to the doctor.
After the
parents notified the police, Detective Lisa Rudzinski (Rudzinski)
interviewed H.L. using anatomically correct dolls to assist the
child in describing the event.
The next day Rudzinski
interviewed Frausto during which he admitted to having sodomized
H.L.
In May 1996, the Adair County Grand Jury indicted
Frausto on one felony count of sodomy in the first degree (KRS
510.070) for having engaged in deviant sexual intercourse with a
person less than twelve years old.
Following a one day trial,
the jury found Frausto guilty and recommended a twenty-five year
sentence.
In January 1997, the trial court sentenced appellant
consistent with the jury’s recommendation.
On direct appeal, the
Kentucky Supreme Court affirmed the conviction.
Frausto v.
Commonwealth, 97-SC-0114-MR (not to be published opinion rendered
on September 4, 1997).
In September 1998, Frausto filed an RCr 11.42 motion
raising several issues based on ineffective assistance of
counsel.
He claimed that counsel rendered deficient performance
by failing to: (1) move to strike a juror for cause; (2) give an
opening statement; (3) adequately cross-examine three prosecution
witnesses; (4) utilize an expert witness on child sexual abuse,
and (5) adequately prepare and present mitigation evidence during
the sentencing phase of the trial.
The Commonwealth filed a
brief response stating that trial counsel did not provide
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ineffective assistance but offered no support for its position.
The trial court denied the motion without a hearing stating all
but one of Frausto’s complaints merely involved discretionary
trial strategy.
The court also held that the mitigation evidence
Frausto alleged was not presented by counsel was inadmissible.
Frausto now appeals the trial court’s denial of his motion.
Frausto raises three issues on appeal.1
First, he
contends the trial court should have excused sua sponte a juror
for cause after the prospective juror acknowledged speaking with
the victim’s father just prior to jury selection.
Second,
Frausto argues the trial court erred by failing to suppress his
confession.
Third, he argues that the trial court erred by
failing to exclude Rudzinski’s testimony about information she
obtained from her interview with the victim.
Because all of
these issues were addressed on direct appeal, they are not
cognizable on a subsequent collateral attack pursuant to RCr
11.42.
Additionally, Frausto has not demonstrated that any of
the issues has substantive merit.
The Kentucky Supreme Court has addressed and rejected
Frausto’s arguments, thus he is precluded from relitigating these
issues.
It is well-established that a defendant may not utilize
RCr 11.42 to raise issues that either were or could have been
raised in his direct appeal.
Sanborn v. Commonwealth, Ky., 975
S.W.2d 905, 908-09 (1998), cert. denied, 526 U.S. 1025, 119 S.
1
Frausto’s failure to address in his appellate brief issues
raised in his original motion in the circuit court constitutes a
waiver of those issues on appeal. See Ballard v. King, Ky., 373
S.W.2d 591, 593 (1963); Milby v. Mears, Ky. App., 580 S.W.2d 724,
727 (1979).
-3-
Ct. 1266, 143 L. Ed. 2d 361 (1999); Bowling v. Commonwealth, Ky.,
981 S.W.2d 545, 549 (1998), cert. denied, ___ U.S. ___, 119 S.
Ct. 2375, L. Ed. 2d (1999); Wilson v. Commonwealth, Ky., 975
S.W.2d 901, 903 (1998), cert. denied, 526 U.S. 1023, 119 S. Ct.
1263, 143 L. Ed. 2d 359 (1999).
In addition, “[a]n issue raised
and rejected on direct appeal may not be litigated in these [RCr
11.42] proceedings by claiming that it amounts to ineffective
assistance of counsel.”
omitted).
Sanborn, 975 S.W.2d at 909 (citations
Moreover, he has not demonstrated that his conviction
should be vacated based on ineffective assistance of counsel.
Therefore, the trial court did not err in denying his RCr 11.42
motion without a hearing.
For the foregoing reasons, we affirm the order of the
Adair Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert Frausto, Pro Se
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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