Ediel Gijon-Cruz v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0078-MR
EDIEL GIJON-CRUZ APPELLANT
APPEAL FROM BOURBON CIRCUIT COURT
v. HONORABLE JEREMY MATTOX, JUDGE
ACTION NO. 10-CR-00050
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Ediel Gijon-Cruz, pro se, appeals from an order of the
Bourbon Circuit Court denying his motion to vacate, set aside, or correct sentence
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Because each of
Cruz’s claims are refuted by the record before us, we affirm.
On May 13, 2010, Cruz was indicted on two counts of complicity to
kidnapping (victim death) and two counts of complicity to murder. Cruz confessed
to his role in the planning and execution of the kidnappings to police officers but
denied any role in the murders. The Commonwealth filed notice it would seek the
death penalty against Cruz.
A year later, on May 12, 2011, Cruz entered into a plea agreement
with the Commonwealth. In exchange for his testimony against a co-defendant,
the Commonwealth agreed to dismiss the two counts of complicity to murder.
Cruz agreed to twenty years’ incarceration on each of the complicity to kidnapping
charges, to be served concurrently.
Cruz’s sentencing was delayed until April 12, 2012, as his co-
defendant’s case proceeded to trial. The trial court ultimately imposed sentencing
pursuant to the terms of the plea agreement.
In August 2012, Cruz began filing a series of pro se letters and
motions requesting the record of his case. On October 31, 2014, Cruz filed what
was entitled “Motion to Withdraw a Coerced Guilty Plea.” On December 4, 2014,
Cruz filed a motion pursuant to RCr 11.42. He broadly asserted that he did not
understand the charges against him at the time and that his attorney coerced him
into not going to trial under fear of receiving the death penalty. The trial court held
an evidentiary hearing on August 4, 2015. For reasons that are not clear from the
record before us, the trial court did not immediately enter an order. Rather, the
case languished until 2019, when Cruz sought relief from this Court in the form of
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a writ of mandamus, demanding the trial court rule on the now five-year-old
motion. The writ was granted by this Court, and the trial court entered what it
entitled a “comprehensive order” denying relief to Cruz on December 2, 2019. On
January 10, 2020, the trial court entered an “amended comprehensive order to
correct typographical/autocorrect error.” The order was substantively the same as
the previous order and denied relief to Cruz. This appeal followed.
Cruz appeals only the denial of his motion pursuant to RCr 11.42. He
makes three arguments on appeal. First, he contends he received ineffective
assistance of counsel because counsel did not use a Spanish interpreter during any
meetings with Cruz, including when discussing the terms and implications of the
plea agreement. Second, he argues counsel failed to investigate and prepare his
case. Finally, Cruz asserts counsel failed to discuss “collateral consequences” of
entering a guilty plea pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010). We interpret this argument to mean counsel failed
to inform Cruz, who is a Mexican citizen, that he would be deported after serving
his sentence. Each of Cruz’s claims are refuted by the record.
When a guilty plea has been entered and the movant collaterally
attacks the judgment via a motion pursuant to RCr 11.42, it must be established
(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the
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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.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). Further, “the trial
court must evaluate whether errors by trial counsel significantly influenced the
defendant’s decision to plead guilty in a manner which gives the trial court reason
to doubt the voluntariness and validity of the plea.” Id. at 487.
Our analysis begins with the voluntariness of Cruz’s plea. The
voluntariness of the plea is determined from the “totality of the circumstances.”
Rodriguez v. Commonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002). “Evaluating the
totality of the circumstances surrounding the guilty plea is an inherently factual
inquiry which requires consideration of the accused’s demeanor, background and
experience, and whether the record reveals that the plea was voluntarily made.”
Fegan v. Commonwealth, 566 S.W.3d 234, 237 (Ky.App. 2018) (internal quotation
marks and citation omitted). Accordingly, we must “juxtapose the presumption of
voluntariness inherent in a proper plea colloquy with a Strickland v. Washington[,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] inquiry into the
performance of counsel.” Bronk, 58 S.W.3d at 486.
The trial court conducted a plea colloquy pursuant to Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Cruz was alert and
engaged during the plea colloquy. A Spanish interpreter was used throughout the
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entirety of the plea as Cruz’s primary language is Spanish. First, defense counsel
testified he had explained the nature of the charges to Cruz, the possible penalties,
possible defenses, and the constitutional rights he would be waiving by entering a
guilty plea. The trial court then turned to Cruz. Through the interpreter, Cruz
testified he understood the nature of the charges against him, the range of penalties,
and possible defenses. He also testified he understood he was giving up the right
to a jury trial, the right to cross-examine the Commonwealth’s witnesses and to
call his own witnesses, the right to not incriminate himself, and the right to appeal.
Cruz admitted he committed the crimes as read by the trial court; specifically that
he “encouraged others and aided in planning and execution of the abduction of two
people[.]” The following exchange also occurred:
COURT: Has anyone threatened you, forced you, or
coerced you in any way to pleading guilty here today?
CRUZ: No.[1]
COURT: Are you doing this of your own free will and
because you believe it’s in your best interest to do so?
CRUZ: Yes.
COURT: Do you have any difficulty – obviously you’re
here with an interpreter today – it’s my understanding –
do you speak English?
CRUZ: A little. Some.
1
Cruz’s responses were in Spanish and translated to English by the interpreter.
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COURT: But you do need the assistance of an
interpreter, is that correct?
CRUZ: Yes.
COURT: And have you had the opportunity to have an
interpreter with you or someone who can understand
what your attorney is talking about when you talk to him
about this case?
CRUZ: Yes.
DEFENSE COUNSEL: Sometimes we do, judge, and
sometimes we do not. I know you’re getting ready to go
over the form. I went over the form with him in English
and we had the interpreter come in afterward and he
didn’t have any additional questions.
COURT: Okay.
DEFENSE COUNSEL: I just want to make it clear for
the record – he does – it is my belief that he does
understand what’s contained in the documents.
COURT: Mr. Cruz, I guess what I really want to know
is, do you believe at any point during the course of this
proceeding or these proceedings, that you didn’t have an
opportunity to understand what was going on because of
not having someone interpret information for you?
CRUZ: Yes, I understood everything well.
COURT: Okay. Your speaking Spanish has not been a
barrier to you understanding what’s going on here today,
is that correct?
CRUZ: Yes.
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COURT: I’m going to show you this motion to enter a
guilty plea. It’s in English. Have you seen that
document before?
CRUZ: Yes.
COURT: And did someone go over that document with
you?
CRUZ: Yes, he did.
COURT: And did you have an opportunity to talk with
your attorney with an interpreter or at least have an
interpreter go over it with you as well, or have a chance
to ask an interpreter questions as to any concerns . . .
might be about this document?
CRUZ: No, I didn’t have any questions.
COURT: You’re satisfied that you understand
everything in this document?
CRUZ: Yes.
COURT: Okay, on the back in the middle it looks like it
has your signature. Is that your signature?
CRUZ: Yes.
COURT: Did anybody force you to sign that?
CRUZ: No.
....
COURT: Are you completely satisfied with the services
of your attorney in this case?
CRUZ: Yes.
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COURT: Do you think [your attorney] has done
everything he should to represent you in this matter?
CRUZ: Yes.
COURT: How do you plead then – I’ll remind you that
you’re under oath – how do you plead to two counts of
complicity to kidnapping where the victims resulted in
death?
CRUZ: Guilty.
COURT: Are you pleading guilty because you’re truly
guilty and for no other reason?
CRUZ: Yes.
“Solemn declarations in open court carry a strong presumption of
verity.” Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006). In
addition to the testimony by Cruz during the plea colloquy, cross-examination by
the Commonwealth at the evidentiary hearing on Cruz’s RCr 11.42 motion
revealed Cruz had met with the Commonwealth’s Attorney and investigators
regarding testimony against his co-defendant without the use of an interpreter.
Accordingly, Cruz’s first argument must fail.
Next, Cruz makes broad, conclusory statements that defense counsel
failed to properly investigate the case prior to entry of his guilty plea. This is also
refuted by the record before us, including the above-cited testimony given by Cruz
regarding counsel’s performance, preparation, and discussion of possible defenses.
Now, Cruz attempts to argue counsel failed to, for example, request a competency
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hearing which, he asserts “is common practice given the Commonwealth’s
intention to seek the death penalty as potential consequence.” Cruz provides no
basis in law or fact for this assertion. RCr 8.06 states:
If upon arraignment or during the proceedings there are
reasonable grounds to believe that the defendant lacks the
capacity to appreciate the nature and consequences of the
proceedings against him or her, or to participate
rationally in his or her defense, all proceedings shall be
postponed until the issue of incapacity is determined as
provided by [Kentucky Revised Statute] 504.100.
At the evidentiary hearing, Cruz testified he spoke to defense counsel
about the plea agreement. His testimony indicated he clearly understood the offer
made by the Commonwealth and in fact instructed counsel to try to renegotiate a
better deal. In other words, Cruz’s testimony revealed he was an active participant
in negotiating his defense. There is nothing in the record to suggest defense
counsel should have sought a competency evaluation for Cruz.
Cruz also asserts that counsel’s failure to investigate and prepare the
case was ineffective assistance because Cruz “consistently maintained his
innocence.” This is again refuted by the record before us. Cruz confessed to his
role in the kidnappings. Consistent with his confession, counsel was able to
negotiate a plea agreement wherein the Commonwealth dropped both counts of
complicity to murder and the death penalty was taken off the table as a possible
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penalty. There is also no indication that counsel was unprepared. 2 Cruz’s second
argument must also fail.
Turning to Cruz’s third argument, we note the Supreme Court of the
United States has ruled that counsel must inform their client whether a guilty plea
carries a risk of deportation. Padilla, 559 U.S. at 374, 130 S.Ct. at 1486. Cruz’s
claim that counsel failed to inform him of the consequence of deportation is also
refuted by the record. At the sentencing hearing on April 10, 2012, counsel
informed the trial court that Cruz was aware he had to serve 85% of his sentence
until immigration officials take him into custody. Cruz was present with a Spanish
interpreter. He did not refute counsel’s statement or ask for clarification.
Finally, we note the following exchange occurred on cross-
examination at the evidentiary hearing:
COMMONWEALTH: What do you think happens if
you win this? What is your understanding? Do you
think you’re gonna go free? You’ve been told you’re
gonna go free? Go back to Mexico?
CRUZ: All I’m asking for is a lower charge, that’s all.
2
Cruz states that counsel said, “I will wing it” and points to this as evidence that counsel was
unprepared to try his case. This comment was taken out of context. It is unclear that counsel
was even speaking about this defendant or this case as this comment was made as part of a
conversation between counsel and the Commonwealth’s Attorney at the bench while waiting for
Cruz to enter. While the audio quality is poor, the conversation appears to have pertained to a
different defendant named Chad who had new charges.
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We agree with the trial court that Cruz’s guilty plea was knowingly,
voluntarily, and intelligently entered. He had multiple opportunities to alert the
trial court if he did not understand the proceedings due to a language barrier, or
any other reason, and did not. In fact, he testified he fully understood the
proceedings. His testimony at the evidentiary hearing on the RCr 11.42 motion
that he was simply “asking for [] a lower charge, that’s all” indicates Cruz regrets
making the plea agreement. Although Cruz is not appealing his motion to
withdraw his guilty plea, we nevertheless point out that hindsight or a change of
heart is not grounds for withdrawal of a guilty plea. See Commonwealth v.
Pridham, 394 S.W.3d 867, 885 (Ky. 2012). Nor is it proper grounds to collaterally
attack the judgment pursuant to RCr 11.42. Moreover, Cruz’s regret after the fact
is unrelated to counsel’s assistance in negotiating and entering the guilty plea. We
cannot say counsel made errors so serious his performance fell outside the wide
range of professionally competent assistance. Nor can we say Cruz was prejudiced
in any way by counsel’s performance. Bronk, 58 S.W.3d at 486-87.
For the foregoing reasons, the order of the Bourbon Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Ediel Gijon-Cruz, pro se Daniel Cameron
Sandy Hook, Kentucky Attorney General of Kentucky
Christopher C. Bailey
Assistant Attorney General
Frankfort, Kentucky
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