KRAMER, Judge.
Jon Booker appeals the Jefferson Circuit Court's order denying his RCr
In a prior appeal, this Court stated the facts of this case as follows:
Booker v. Commonwealth, No. 2008-CA-001953-MR, 2011 WL 2731843, *1 (Ky. App. July 15, 2011) (unpublished).
Booker was indicted on one count of murder (acting alone or in complicity) and one count of first-degree burglary (acting alone or in complicity). The Commonwealth filed a notice of aggravating circumstances to inform the defense that the indictment would be prosecuted as a capital offense because the aggravating circumstances of first-degree burglary, as described in KRS
The Commonwealth provided an offer on a plea of guilty, which proffered to amend the first-degree burglary charge (acting alone or in complicity) to one count of criminal mischief and one count of third-degree burglary in exchange for Booker's guilty plea to the charges of murder, criminal mischief, and third-degree burglary. The Commonwealth further proffered to recommend a sentence of twenty years of imprisonment on the murder charge; five years of imprisonment on the third-degree burglary charge; and five years of imprisonment on the first-degree criminal mischief charge. The Commonwealth agreed to recommend that the sentences for third-degree burglary and first-degree criminal mischief be run consecutively for a total of ten years to be probated, with probation beginning after Booker served the maximum sentence for murder. Booker moved to enter a guilty plea in accord with the Commonwealth's offer. The court accepted his guilty plea to the charges of murder, third-degree burglary, and first-degree criminal mischief. The circuit court sentenced Booker to twenty years of imprisonment for the murder conviction, five years of imprisonment for the third-degree burglary conviction, and five years of imprisonment for the first-degree criminal mischief conviction. The court ordered all sentences to run consecutively for a total of thirty years of imprisonment. Further, the sentences for third-degree burglary and first-degree criminal mischief were ordered to run consecutively for a total of ten years to be probated, with the probation to begin "upon maximum serve out for [m]urder."
Booker filed his RCr 11.42 motion to vacate his sentence pro se. Post-conviction counsel then filed a supplemental memorandum in support of Booker's RCr 11.42 motion. The circuit court entered an order denying Booker's RCr 11.42 motion without holding an evidentiary hearing. Booker appealed, and this Court affirmed in part, reversed in part, and remanded. Specifically, this Court affirmed the circuit court's decision to not hold an evidentiary hearing concerning defense counsel's failure to interview witnesses Desean Dickey and Aaron Jones. This Court also affirmed the circuit court's decision that Booker was competent to plead guilty. However, the Court of Appeals reversed the circuit court's decision to not hold an evidentiary hearing concerning Virginia Brewer's affidavit and whether the burglary charge should have been used as an aggravator in this case. The Court also reversed the circuit court's decision to not hold an evidentiary hearing regarding whether counsel rendered ineffective assistance when counsel failed to interview Maurice Gasaway and failed to learn that Gasaway's statement was coerced, which Booker contended would have affected his decision on whether to plead guilty. This Court then remanded the case for further proceedings. See Booker, No. 2008-CA-001953-MR, 2011 WL 2731843, at *3-4 (Ky. App. July 15, 2011) (unpublished).
On remand, the circuit court held an evidentiary hearing. The court again denied Booker's RCr 11.42 motion. Booker again appealed, and this Court vacated the circuit court's decision because the circuit court had relied upon the wrong standard in denying Booker's motion. Therefore, this Court remanded the case for further proceedings. See Booker v. Commonwealth, No. 2012-CA-000387-MR, 2014 WL 351976, *1, *2 (Ky. App. Jan. 31, 2014) (unpublished).
When the circuit court took up the case again on remand, it again denied Booker's RCr 11.42 motion. Booker now appeals, contending that the circuit court erred: (a) by holding that Booker's case is indistinguishable from Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441, 448 (Ky. 2011), and Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999); (b) by finding that defense counsel rendered effective assistance even though counsel did not attempt to interview or depose Maurice Gasaway, Shaunt Gasaway, or Thomas Board; and (c) in finding that defense counsel rendered effective assistance although counsel merely presumed that his private investigator had interviewed Charlotte Ross.
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
Booker first contends that the circuit court erred in holding that his case is indistinguishable from Fugate, 993 S.W.2d at 931, and Bowling, 942 S.W.2d at 293, overruled on other grounds by McQueen, 339 S.W.3d at 448. Booker argues that if he was on the premises at the time in question, he was there with permission because he had been given a key to the apartment.
Regarding this claim, the circuit court held as follows:
We agree with the circuit court. In Fugate, the Kentucky Supreme Court reasoned as follows:
Fugate, 993 S.W.2d at 940-41. Therefore, in Fugate, the defendant was invited into the victim's home, where Fugate then murdered the victim. Fugate was still properly convicted of burglary, in addition to murder.
Furthermore, in Bowling, the Court discussed the holding in Tribbett, stating that in Tribbett, the Kentucky Supreme 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." Bowling, 942 S.W.2d at 307, overruled on other grounds by McQueen, 339 S.W.3d at 448 (discussing Tribbett, 561 S.W.2d at 662).
Following the rationales of Fugate, Bowling, and Tribbett, Booker committed burglary—despite the fact that he had a key to the apartment—because he used a gun against the victim in the apartment building, and the victim was not a participant in the crime. See KRS 511.020(1). Consequently, the aggravator of burglary was correctly applied to his murder charge, resulting in Booker being eligible for the death penalty. See KRS 532.025(2)(a)(2). Therefore, contrary to Booker's allegation, he did not receive the ineffective assistance of counsel when counsel advised him to plead guilty because the aggravator was, in fact, applicable in this case, which would have rendered Booker eligible for the death penalty. Accordingly, this claim lacks merit.
Booker next alleges that the circuit court erred by finding defense counsel rendered effective assistance even though counsel did not attempt to interview or depose co-defendants Maurice Gasaway, Shaunt Gasaway, or Thomas Board.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks omitted).
We begin by addressing the Commonwealth's allegation in its appellee brief that
Therefore, the Commonwealth argues that these claims were waived because Booker was required to raise them in the prior appeals.
We agree with the Commonwealth. Booker did not raise the claims concerning Shaunt Gasaway and Thomas Board in either of his prior appeals, and he did not raise the claim concerning Maurice Gasaway in his second appeal. Consequently, those claims are waived. See Johnson v. Commonwealth, 450 S.W.3d 707, 712-13 (Ky. 2014).
Regardless, even if they were not waived, these claims lack merit. Defense counsel testified at the evidentiary hearing that he did not attempt to interview or depose Booker's co-defendants because they were all represented by counsel, and it would have been inappropriate for counsel to contact them. Booker alleges in his opening brief in this appeal that this testimony by defense counsel was
Booker contends that Maurice Gasaway and Shaunt Gasaway both recanted statements they had made to police detectives before a ruling was entered on Booker's RCr 11.42 motion. He asserts that Maurice and Shaunt Gasaway both claimed that their statements to police were coerced.
Even if we were to assume that Maurice and Shaunt Gasaway would have spoken to defense counsel and that they would have told Booker's counsel that their statements to police were coerced, Booker still cannot show that he was prejudiced by counsel's failure to attempt to speak with them. There were three other witnesses to the crime, aside from Maurice, Shaunt, Booker, and the victim. The other witnesses were DeAndre Shaw, Keith Willis, and Thomas Board (Board was also a co-defendant). In his statement to police, DeAndre Shaw stated that he saw Booker holding and aiming the gun, and he then heard the gunshot. Additionally, Keith Willis told police that he witnessed the murder. Therefore, because these two people (who were not co-defendants and who did not recant their statements) both told police that they witnessed Booker committing the murder, Booker cannot show that he was prejudiced by defense counsel's failure to attempt to interview co-defendants Maurice Gasaway, Shaunt Gasaway, and Thomas Board.
Moreover, because Booker would have been eligible for the death penalty for the murder charge, due to the first-degree burglary aggravator, he cannot show that he was prejudiced and would have likely proceeded to trial if counsel had attempted to interview his co-defendants. This is particularly so considering that following his guilty plea, he was sentenced to twenty years of imprisonment for the murder conviction, as opposed to being eligible for the death penalty if he had gone to trial on the murder charge. Consequently, this claim lacks merit.
Finally, Booker asserts that the circuit court erred in finding defense counsel rendered effective assistance although counsel merely presumed that his private investigator had interviewed Charlotte Ross. Specifically, Booker contends that Charlotte Ross could have told counsel that Booker had permission to be in the apartment, which would have informed counsel that Booker should not plead guilty to the burglary charge.
During the evidentiary hearing, Charlotte Ross testified that she was present in the apartment when the murder occurred, but that she was asleep in the back bedroom at that time, so she does not know what happened. She attested that she is currently a recovering addict and has been since approximately three months after the murder occurred. Charlotte Ross testified that she was never interviewed by anyone from the defense about whether Booker had permission to be in the apartment. However, she stated that Booker did have permission to be in the apartment, but not if he had a gun. The apartment's leaseholder was her mother, Virginia Brewer, who did not testify at the evidentiary hearing because Virginia Brewer's counsel advised the circuit court that she now suffers from Alzheimer's disease and dementia, and she is no longer competent to testify.
As we previously discussed, Booker was properly charged with burglary in this case, and it could have been applied as an aggravator to the murder charge, even though he had a key to the apartment. Therefore, he was not prejudiced by the failure of defense counsel or the private investigator to interview Charlotte Ross, during which they simply would have learned that Booker had a key to the apartment. Moreover, even Charlotte Ross testified during the evidentiary hearing that Booker did not have permission to be in the apartment if he had a gun. Consequently, Booker did not receive the ineffective assistance of counsel when counsel failed to interview Charlotte Ross (or when counsel failed to ensure that the private investigator interviewed her), because Booker would have been eligible for the burglary aggravator even if Charlotte Ross had been interviewed. Thus, this claim lacks merit.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
