Kirby Bryan Ruano v. Commonwealth of Kentucky

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1763-MR
KIRBY BRYAN RUANO APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 12-CR-01233-003
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
ACREE, JUDGE: Kirby Bryan Ruano, pro se, appeals the Fayette Circuit Court’s
order denying his post-conviction motion for relief. We affirm.
FACTS AND PROCEDURE
In 2012, Ruano was indicted by the Fayette County Grand Jury on
charges of murder and first-degree robbery. Prior to trial, Ruano agreed to plead
guilty to the murder charge, based on a sentence of thirty years and to the charge of
robbery, based on a concurrent ten-year sentence for a total sentence of thirty
years. After conducting a plea colloquy, the trial court determined Ruano entered
into the plea agreement voluntarily and intelligently and accepted the plea
agreement. Prior to sentencing, however, Ruano filed a motion to withdraw his
plea. The trial court denied the motion and sentenced Ruano in accordance with
the plea agreement.
Ruano appealed the denial of his motion to withdraw, as a matter of
right, to the Kentucky Supreme Court.1 That Court vacated the order denying
Ruano’s motion to withdraw his guilty plea, concluding that the trial court’s
“informal disposition of Ruano’s motion to withdraw his guilty plea compromised
his right to conflict-free counsel.” Ruano v. Commonwealth, No. 2014-SC-
000469-MR, 2015 WL 9243549, at *1 (Ky. Dec. 17, 2015). The case was
remanded for further proceedings.
On remand, Ruano again moved to withdraw his guilty plea, asserting
he was pressured into accepting the Commonwealth’s offer, rendering his plea
involuntary. The trial court heard arguments from both sides, including Ruano’s
new conflict-free counsel, but denied his motion. Ruano again appealed to the
Kentucky Supreme Court. The Supreme Court affirmed. Ruano v.
Commonwealth, No. 2017-SC-000026-MR, 2018 WL 1417465 (Ky. Mar. 22,
2018).
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KY. CONST. § 110(2)(b).
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Subsequently, Ruano filed a RCr2 11.42 motion to vacate his
sentence. He argued, in part, that he was incompetent to stand trial, and his
counsel was ineffective for failing to raise this issue before the trial court. (Trial
Record (T.R.) at 352-354.) The trial court concluded that the record did not
support his claim, stating that Ruano’s ability to understand and make rational
decisions was addressed during his plea colloquy. In addition, it noted that the
Supreme Court had already addressed his ability to understand and enter into a
knowing and intelligent plea during his second appeal. Accordingly, the trial court
denied his motion without conducting an evidentiary hearing. (T.R. at 398-399.)
This appeal followed.
ANALYSIS
On appeal, Ruano asserts: (1) his counsel was ineffective for failing
to bring to light his incompetency to stand trial and enter into his plea agreement;
(2) the trial court erred by not holding an evidentiary hearing; and (3) the trial court
erred when it allowed the Department of Public Advocacy (“DPA”) to withdraw as
counsel. We first address Ruano’s ineffective assistance claim.
Every defendant is entitled to reasonably effective, but not necessarily
errorless, counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App.
2011). In evaluating a claim of ineffective assistance of counsel, we apply the
2
Kentucky Rules of Criminal Procedure.
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familiar “deficient-performance plus prejudice” standard first articulated in
Strickland v. Washington, 466 U.S. 688, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d
674 (1984).
Under this standard, the movant must first prove his counsel’s
performance was deficient. Id. at 687, 104 S. Ct. at 2064. To establish deficient
performance, the movant must show that counsel’s representation “fell below an
objective standard of reasonableness” such that “counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment[.]” Commonwealth v. Tamme, 83
S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21
(Ky. 2009).
Second, a movant must prove counsel’s “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. That
requires the movant to show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068.
Ruano argues that his decision to first plead guilty, then withdraw his
plea, demonstrated “erratic behavior” and an “inability to make a conscious
decision” about whether he wanted to accept the plea offer. He asserts this
behavior created an inference of incompetence, which his counsel should have
brought to the trial court’s attention. We disagree.
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A defendant’s indecision regarding a plea agreement is a common
occurrence in our criminal justice system, one which does not equate to
incompetence. More importantly, this type of common behavior would not suggest
to Ruano’s counsel that Ruano was not competent to stand trial or that he was
unable to understand his plea agreement.
Legal incompetency to stand trial means that “as a result of mental
condition, [there is a] lack of capacity to appreciate the nature and consequences of
the proceedings against one or to participate rationally in one’s own defense[.]”
KRS3 504.060(4). The Supreme Court resolved any concerns relating to Ruano’s
competency in his second appeal. Although addressing whether he voluntarily
entered into the plea, that Court noted:
At the plea hearing, the trial court engaged in
approximately six minutes of colloquy with Ruano to
ensure that he understood his plea and its consequences.
Ruano, while under oath, acknowledged that he had no
mental problems and was not sick or under the influence
of any substance that would make it difficult for him to
understand what was happening; that he discussed the plea
with his attorney, had enough time for discussions, and
had no complaints about her representation; that he read
the guilty plea form and understood it; that he understood
the implications of the plea, including the resulting waiver
of constitutional rights; that he understood the possibility
of these felonies being used to increase the penalty on any
future charges; and that no threats or promises were made
to induce him to enter the plea. Ruano’s counsel indicated
that she explained everything to Ruano and, in her opinion,
3
Kentucky Revised Statutes.
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he understood the circumstances surrounding the plea.
Assisted by counsel, Ruano reviewed and signed the plea
form.
. . . Ruano’s declarations, made under oath, indicate that
he understood the plea, considered the plea, and knew the
consequences of taking the plea. Ruano had many
opportunities to express reservations or indicate
unwillingness to enter the plea, but he failed to do so.
Ruano, 2018 WL 1417465, at *3.
Ruano’s acknowledgement that he had no mental problems, along
with his ability to fully understand his plea agreement, including an understanding
of the underlying charges, defeats his argument. In addition, it resolves any
question whether he intelligently entered into his plea. Because the trial court was
able to resolve Ruano’s contentions from the face of the record, he was not entitled
to an evidentiary hearing. RCr 11.42(5).
Ruano next asserts the trial court erred by allowing DPA counsel to
withdraw. Not every movant is entitled to counsel in a post-conviction proceeding.
Fraser v. Commonwealth, 59 S.W.3d 448, 451 (Ky. 2001). But, if an evidentiary
hearing is mandated, then the trial court shall appoint counsel to represent an
indigent defendant. RCr 11.42(5).
As explained above, the claims raised by Ruano are refuted by the
record and thus insufficient to justify relief under Strickland. An evidentiary
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hearing was not warranted and, accordingly, Ruano was not entitled to
appointment of counsel.
CONCLUSION
We affirm the Fayette Circuit Court’s order denying Ruano’s RCr
11.42 motion for post-conviction relief.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kirby Ruano, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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