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Dunlap v. Commonwealth

Supreme Court of Kentucky

June 20, 2013

KEVIN WAYNE DUNLAP, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

Released for Publication February 20, 2014.

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ON APPEAL FROM LIVINGSTON CIRCUIT COURT. HONORABLE CLEARANCE A. WOODALL, III, JUDGE. NO. 09-CR-00027.

COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate, Roy Alyette Durham, II, Assistant Public Advocate, Kathleen Kallaher Schmidt, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, David Bryan Abner, Assistant Attorney General.

Minton, C.J., Abramson, Keller, Noble, Scott, and Venters, JJ., sitting.

OPINION

Page 550

SCOTT, JUSTICE

Appellant, Kevin Wayne Dunlap, pled guilty to three counts each of capital murder, capital kidnapping, and tampering with physical evidence, and one count each of attempted murder, first-degree kidnapping, first-degree rape, first-degree arson, and first-degree burglary. The Livingston

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Circuit Court sentenced Appellant to death for each of the six capital crimes; life imprisonment for kidnapping, rape, and arson; twenty years' imprisonment for attempted murder and burglary; and five years' imprisonment for each of the tampering convictions. He now appeals as a matter of right. Ky. Const. § 110(2)(b). We affirm.

I. BACKGROUND

On October 15, 2008, Appellant approached Kristy Frensley while she was working in her yard. Kristy's house was for sale and Appellant asked if she would show it to him. Once inside, Appellant put a gun to her head, zip tied her hands and ankles, and moved her to her bedroom. Shortly thereafter, Kristy's three children, Kayla Williams, 17, Kortney Frensley, 14, and Ethan Frensley, 5, returned home from school. Appellant pushed all three children into the bedroom and tied Kayla and Kortney with zip ties and Ethan with pantyhose. He then took the children to a different part of the house.

Appellant returned to Kristy's bedroom and raped her. After giving her a shower, he placed Kristy in her bed, began to strangle her, and attempted to smother her with a pillow. After that, he began cutting her neck. He briefly left the room; when he returned he stabbed Kristy in her left ear and twice in her lower back. Kristy later learned that Appellant had broken off a butter knife in her neck at the handle that had to be surgically removed. Kristy pretended that she was dead by lying still and slowing her breathing. Appellant covered her with a blanket and left the room. Feeling smothered by the blanket, Kristy moved so that her nose was uncovered and she could see.

Appellant poured flammable liquid on the floor of the bedroom and set the bedroom on fire. From her position, Kristy could see Ethan across the hall lying on a pile of pillows. Kristy attempted to rescue him but before she could do so her foot caught fire. She then discovered her legs were not functioning properly and rolled off of her bed to the bedroom's French doors which led to the pool deck. She pulled one of the door handles with her foot but her legs failed her again and she got stuck in the doorframe. Eventually, with her hands still tied, she managed to roll into the pool where a Sheriff's deputy later found her.

The fire caught the attention of neighbors and passers-by and Kayla's body was seen through a window; they punched out the window with their fists and pulled her body outside. The fire was so hot that when they pulled her body out her skin came off in their hands. Kayla's hands were still tied and her mouth was gagged with pantyhose; her throat had been cut from ear to ear, deep enough that her trachea was visible. A steak knife blade was protruding from her back through her sweater. Remarkably, Kayla was still alive, gasping for breath and gurgling. Two women attempted CPR, but Kayla died in the yard from her wounds.

The fire destroyed the home, burning Kortney and Ethan's bodies. An autopsy revealed that Ethan had two stab wounds to the chest (including one that penetrated his heart), six stab wounds to his back and one to his stomach. Kortney had three stab wounds to her chest that penetrated the left lung and one stab wound to the right side of the neck. The doctor who performed the children's autopsies testified that all three children died from the stab wounds.

Based on an eyewitness description of a vehicle seen at the Frensley's house that day, a search warrant was issued for Appellant's home. Law enforcement officers seized several items linking him to the

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Frensley massacre. Forensic analysts at the Kentucky State Crime Lab examined the seized items and a " rape kit" that medical personnel had performed on Kristy. A vaginal swab revealed that DNA inside Kristy matched Kevin Dunlap.[1] The analyst also discovered DNA on the driver's side seatbelt of Appellant's truck that matched Kristy's.[2] Additionally, Kortney's DNA was found on Appellant's tennis shoes.[3]

Appellant was indicted by a Trigg County Grand Jury for three counts each of capital murder, capital kidnapping, and tampering with physical evidence; and one count each of attempted murder, first-degree burglary, first-degree arson, and first-degree rape. Upon joint motion by the Commonwealth and Appellant, the Trigg Circuit Court granted a change of venue to the Livingston Circuit Court. Thereafter, the Commonwealth's Attorney gave notice that he was seeking the death penalty.

Two months prior to trial, Appellant was sent to the Kentucky Correctional Psychiatric Center (KCPC) for a thirty-day evaluation of his competency to stand trial and criminal responsibility. The Livingston Circuit Court held a competency hearing on January 22, 2010, approximately three weeks prior to the trial date. The court heard the testimony of Dr. Amy Trivette, the psychiatrist supervising Appellant's evaluation at KCPC, who testified that Appellant understood the nature and consequences of the charges against him and had a general understanding of the courtroom proceedings and the individuals involved. Consistent with this testimony, the trial court found Appellant competent to stand trial.

About one month prior to trial, a CT scan revealed two non-specific hyper-attenuated punctuate foci--essentially, abnormal spots--on the right frontal lobe of Appellant's brain. Defense counsel requested a PET scan and an MRI, and moved the trial court for a continuance so the results of these tests could be fully examined. The trial court permitted the tests but denied the continuance. About a week before trial was to begin, the tests revealed that Appellant had an arterial venous malformation (AVM) on his right frontal lobe, measuring approximately one cubic inch--a tangle of arteries and veins existed where cortical matter would be on a normally-developed brain.

The day before jury selection was to begin, Appellant informed the court that he wanted to change his plea from Not Guilty to Guilty But Mentally Ill (GBMI). He also informed the court that if it did not accept his GBMI plea then he wished to enter a plea of Guilty. In light of the newly discovered AVM, defense counsel moved to stay the proceedings and have Appellant reevaluated. After hearing testimony from Appellant's expert witness, Dr. Michael Nicholas, the trial court denied counsel's request to stay the proceedings, rejected Appellant's request to plead GBMI, and accepted his Guilty plea.

Appellant reserved his right to be sentenced by a jury for his capital convictions, and a capital sentencing proceeding began on February 10, 2010, lasting two weeks. After deliberating for three hours, the jury recommended a death sentence on each of

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the capital offenses; the trial court adopted its recommendation. Appellant waived jury sentencing on the non-capital charges, and the trial court sentenced him to life imprisonment for kidnapping, rape, and arson; twenty years' imprisonment for attempted murder and burglary; and five years' imprisonment for each of the tampering convictions. The twenty-year sentences and the five-year sentences were to run consecutively to one another, for a total of fifty-five years, and concurrently with the life sentences which, by law, must run concurrently with one another. Mabe v. Commonwealth, 884 S.W.2d 668, 673 (Ky. 1994) ( citing Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993)). Additional facts will be provided where relevant to our analysis.

II. STANDARDS OF REVIEW

Appellant seeks review of twenty-one related issues (plus a separate " cumulative error" argument), " some of which comprise numerous sub-issues, and many of which were not preserved for review pursuant to RCr 9.22 or 9.54." Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990). " Indeed, more than a few . . . were not even raised below." Id. Thus, in other instances they would be treated as unpreserved. However, " [w]here the death penalty has been imposed, we nonetheless review allegations of these quasi errors." Id.

[If] the so-called error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; [but] (2) if there is no [such] reasonable explanation, [we then address] whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. All unpreserved issues are subject to this analysis.

Id. (internal citations omitted); see also Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky. 2003).

" The rationale for this rule is fairly straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice process. Id.; see also KRS 532.075(2) (" The Supreme Court shall consider . . . any errors enumerated by way of appeal." ).

Preserved errors are reviewed under normal standards. As noted in Brown v. Commonwealth, " preserved evidentiary and other non-constitutional errors will be deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), if we can say with fair assurance that the judgment was not substantially swayed by the error." 313 S.W.3d 577, 595 (Ky. 2010). " Our inquiry is not simply 'whether there [is] enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.'" Id. ( quoting Kotteakos, 328 U.S. at 765). " As to those preserved constitutional errors which are subject to harmless error review, they must be shown to be 'harmless beyond a reasonable doubt' in order to be deemed harmless." Id.

Moreover, we review a trial court's evidentiary rulings for an abuse of discretion. Penman v. Commonwealth,

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194 S.W.3d 237, 245 (Ky. 2006). " The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945, 46 8 Ky. L. Summary 28 (Ky. 1999).

On appellate review of a trial court's denial of a motion to suppress, we apply the two-step process set out in Omelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by this Court in Adcock v. Commonwealth, 967 S.W.2d 6, 45 5 Ky. L. Summary 15 (Ky. 1998). We review the trial court's findings of fact under the substantial evidence standard. Id. at 8. Under this standard, the trial court's findings of fact will be deemed conclusive if supported by substantial evidence. RCr 9.78. Finally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).

III. ANALYSIS

A. The Trial Court Properly Accepted Appellant's Guilty Plea

Appellant first argues that the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it rejected his GBMI plea, denied his requests for a continuance and a second competency evaluation, accepted his guilty plea, and asked him to admit to the statutory aggravating circumstances.

On the day before jury selection was to begin, Appellant informed the trial court that he wanted to change his plea from Not Guilty to GBMI, but added that if the trial court did not accept his GBMI plea, then he wished to plead Guilty. He asked to enter this plea against the advice of his attorneys who stated that in their opinion, the decision was not knowingly, intelligently, and voluntarily made, but was instead the product of mental illness--specifically, a previously diagnosed depressive disorder and organic brain damage. The trial court conducted a plea colloquy, heard evidence regarding mental illness, and ultimately concluded that Appellant was competent to enter a new plea. It further concluded that Appellant was not suffering from a mental illness at the time of the murders; it therefore rejected the GBMI plea and accepted the Guilty plea.

Central to Appellant's argument to this Court is the AVM found on his brain six days before he changed his plea. He argues that its discovery " had the potential to change everything. It also had the potential to explain a lot about [his] behavior and mental state, past and present." This, he argues, is because the location of the AVM--the right frontal lobe--is the part of the brain associated with self-control, impulses, and judgment. As such, he contends that (1) he was incompetent to enter a guilty plea, (2) even if he was competent the guilty plea was not knowingly and voluntarily made, (3) the trial court should have granted his requests for a continuance and a new competency hearing, and (4) the trial court erroneously asked him to admit to the aggravating circumstances.

1. Appellant was competent to enter a guilty plea

First, Appellant argues that he was incompetent to enter a guilty plea.[4] Specifically,

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he suggests that the abnormality in his brain substantially affected his judgment and the capacity to waive his rights. This issue is preserved.

" A criminal defendant may not be tried unless he is competent[,] Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966), and he may not waive his right to counsel or plead guilty unless he does so 'competently and intelligently,' Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938) . . . ." Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). " A competency determination is based on the preponderance of the evidence standard. We may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous ( i.e., not supported by substantial evidence)." Chapman, 265 S.W.3d at 174 (footnotes and citations omitted).

As an initial matter, we must decide what factual standard for determining competency applies to Appellant's situation. In most scenarios, the test for determining competency to plead guilty is the same as determining competency to stand trial: " whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). See also Godinez, 509 U.S. at 398 (rejecting " the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard" ); Chapman, 265 S.W.3d at 175 (same). The trial court applied the Dusky standard in determining that Appellant was competent to enter his guilty plea.

However, in Chapman we held that a different, heightened standard of determining competency applies under a very narrow (and rare) set of circumstances, i.e., " when a defendant desires to plead guilty, waive jury sentencing and presentation of mitigation evidence, and asks the trial court to be sentenced to death." Id. at 180. That standard, adopted from Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), requires the trial court to determine whether the defendant " has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Chapman, 265 S.W.3d at 179 ( quoting Rees, 384 U.S. at 314).

Appellant argues that the circumstances surrounding his guilty plea are sufficiently analogous to those in Chapman to warrant application of the heightened Rees standard. He contends that his failure to affirmatively seek the death penalty (as the appellant in Chapman had) is irrelevant. Rather, he alleges that the consequence of his decision to waive his right to a jury trial, plead guilty to six capital offenses, and admit to three aggravating circumstances that made him death-eligible " was exactly the same as if he had told the trial court he wanted a death sentence." We disagree.

Our holding in Chapman makes clear that the heightened Rees standard applies to one situation: " when a defendant desires to plead guilty, waive jury sentencing and presentation of mitigation evidence, and asks the trial court to be sentenced to death." Id. at 180. We have not extended application of the Rees standard to any other factual scenario.[5] See id.; Windsor

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v. Commonwealth, No. 2008-SC-000383-MR, 413 S.W.3d 568, 2010 WL 3374240 at *2 (Ky. Aug. 26, 2010).[6] Here, Appellant pled guilty but he did not waive jury sentencing or presentation of mitigation evidence, and he did not ask the trial court to be sentenced to death. We are not persuaded that pleading guilty to a capital crime (or even several capital crimes) and admitting to aggravating circumstances is the equivalent of asking the trial court for the death penalty; indeed, pleading guilty constitutes sound legal strategy in some cases. Thus, we conclude application of the Rees standard is not appropriate in this case.

Accordingly, Appellant was competent to enter a guilty plea if the trial court was satisfied by a preponderance of the evidence that he " ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and [that] he ha[d] a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402. Under this standard, the trial court found that Appellant was indeed competent to enter a guilty plea. This finding is supported by substantial evidence.

The trial court held a competency hearing on January 22, 2010 at which Dr. Trivette, the KCPC psychiatrist who supervised Appellant's month-long evaluation, offered substantial testimony. She concluded that, to a reasonable degree of medial certainty, Appellant understood the nature and consequences of the proceedings against him and had a general understanding of the courtroom proceedings and the individuals involved. She also stated that he was able to assist his counsel and rationally participate in his own defense.

A mere eighteen days later--and the day before jury selection was to begin__ Appellant asked to enter a plea of GBMI, or if rejected, Guilty.[7] The trial court conducted a plea colloquy and heard evidence on Appellant's mental illness. The following exchange from the plea colloquy is informative:

Trial court : [T]oday, do you think you understand what we're doing here today?
Appellant : Yes, sir.
Trial court : Is it your belief that your judgment is clear and that you understand what we're about to go through in this question and answer session?
Appellant : Yes, sir.
Trial court : While we're still on the question of mental illness, disease, or defect which, as I mentioned earlier, we

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will discuss more directly, I want to get a little bit more from you. You heard Dr. Trivette's testimony that she believed that you were competent to stand trial. Do you agree with that?
Appellant : Yes, sir, I'm competent.
Trial court : And have you understood all the proceedings here in court up 'til today and including today so far?
Appellant : Yes, sir.
Trial court : Do you believe that if you did not enter a guilty plea you would be able to assist your counsel in a trial in the guilt phase of this case, and, assuming I accept a guilty plea, do you think you can assist your counsel in a sentencing phase of this case?
Appellant : Yes, sir.
Trial court : So, as far as you're standing there now, is it your belief that your judgment is not impaired at this time?
Appellant : That is correct.

Later in the hearing, the defense's own expert witness, Dr. Nicholas, stated that he " never had an issue with [Appellant's] competency to stand trial." [8] As previously mentioned, under the facts of this case the standards for determining competency to stand trial and competency to enter a guilty plea are identical, see Dusky, 362 U.S. at 402; Chapman, 265 S.W.3d at 175, and if he was competent to stand trial--as all parties agreed he was-- a fortiori he was competent to enter a guilty plea. Thus, the trial court's finding that Appellant was competent to reject the advice of his attorneys and enter a guilty plea was based on substantial evidence--Appellant's opinion, Dr. Trivette's opinion, Dr. Nicholas's opinion, and the court's own observations during its colloquy--and it is therefore not clearly erroneous.

2. Appellant's waiver was knowing and voluntary

Appellant next argues that even if he was competent to enter his plea, he did not do so knowingly and voluntarily. He contends that the trial court's colloquy was insufficient to determine whether he understood and appreciated the rights he was waiving. This issue is preserved. Whether a defendant's plea is knowing and voluntary " is inherently fact-sensitive, thus this Court reviews such a determination for clear error, i.e., whether the determination was supported by substantial evidence." Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006) (citations omitted).

On the morning of February 9, 2010, Appellant informed the trial court that he wished to change his plea from Not Guilty to GBMI, but if the court would not accept a GBMI plea, then he wished to plead Guilty. The trial court conducted a plea colloquy lasting approximately twenty-seven minutes, which included the following exchanges relevant to the question of whether Appellant's plea was knowing and voluntary:

Trial court : There's only one document today, which is a substantially-altered-to-fit-the-circumstances Motion to Enter a Guilty Plea. Were you able to read that document?
Appellant : Yes, sir.
Trial court : Have you ever suffered from any mental illness, disease, or defect that affects your ability to think or to reason?

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Appellant : I don't really know how to answer that question, sir.
Trial court : All right, answer it the best you can.
Appellant: [appears to briefly consult with counsel] Yes.
Trial court : All right, and tell me what that is.
Appellant : Apparently I have a spot on my brain that affects my judgment.
Trial court : All right, and is that based on the recent MRI and PET scan diagnostics that you had?
Appellant : Yes.
Trial court : All right, before that, had you ever been diagnosed with any mental illness, disease, or defect that affects your ability to think or to reason.
Appellant : Depression would probably affect my reasoning.
Trial court : All right did you treat your depression occasionally through prescribed medicine?
Appellant : Yes, sir.
Trial court : Okay, and did that help?
Appellant : Sometimes.
Trial court : All right. I guess more to the point today, do you think you understand what we're doing here today?
Appellant : Yes, sir.
Trial court : Is it your belief that your judgment is clear and that you understand what we're about to go through in this question and answer session?
Appellant : Yes, sir.
Trial court : While we're still on the question of mental illness, disease, or defect which, as I mentioned earlier, we will discuss more directly, I want to get a little bit more from you. You heard Dr. Trivette's testimony that she believed that you were competent to stand trial. Do you agree with that?
Appellant : Yes, sir, I'm competent.
Trial court : And have you understood all the proceedings here in court up 'til today and including today so far?
Appellant : Yes, sir.
Trial court : Do you believe that if you did not enter a guilty plea you would be able to assist your counsel in a trial in the guilt phase of this case, and, assuming I accept a guilty plea, do you think you can assist your counsel in a sentencing phase of this case?
Appellant : Yes, sir.
Trial court : So, as far as you're standing there now, is it your belief that your judgment is not impaired at this time?
Appellant : That is correct.
. . . .
Trial court : All right. As you know, a Trigg County grand jury has charged you with several offenses. And there is no short-hand way to do this, so I'm simply going to read them, Mr. Dunlap.
Under Count 1, the grand jury charged that on or about October 15, 2008 in Trigg County, you did and with intent to cause the death of another person, caused the death of Kayla Williams. That's a capital offense, and I'm just going to summarize, on each of these capital offenses, once for all, as you know the range for the punishment on a capital offense is from a term of not less than twenty years to no more than fifty years; or it can be a term of life imprisonment; it can be a term of life without probation or parole for a period of twenty-five years; it can be a term of imprisonment for life without benefit of probation or parole at all; and then finally it can be the death penalty. You understand that's the range for capital offenses?
Appellant : Yes, sir.
Trial court : [Trial court goes on to read each count, explaining the penalty range

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for each class of felony with which Appellant was charged.] That's the charges with which you stand here charged. Do you understand that those are those charges?
Appellant : Yes, sir.
Trial court : Now let me add to those the aggravating factors that the Commonwealth filed by notice that was recorded on January 6, 2009--that the offense of murder was committed upon each minor while the defendant was engaged in the commission of arson in the first degree, burglary in the first degree, and rape in the first degree. The second aggravating circumstance being that the defendant's acts of killing the aforementioned was intentional and resulted in multiple deaths. And the third aggravator is the offenses of kidnapping perpetrated against the minors and their mother, Kristy Frensley, were committed while the defendant was engaged in the commission of the crimes of arson in the first degree, burglary in the first degree, rape in the first degree, and murder in the first degree. Are you also aware that those are the aggravating factors that make the capital offenses punishable potentially by the death penalty?
Appellant : Yes, sir.
Trial court : And is there anything about any of those charges that you don't understand? Or the aggravators for that matter?
Appellant : No, sir.
Trial court : And you understand the facts from which those charges arose--in other words, why you got charged with those offenses.
Appellant : Yes, sir.
Trial court : Is there anything you don't understand about the facts from which those charges arose?
Appellant : No, sir.
Trial court : Have your attorneys explained to you the nature of these charges and the penalties they carry as well as any possible defenses to any of these charges?
Appellant : Yes, sir.
Trial court : And I also know that your attorneys have discussed with you your constitutional rights but I want to remind you that you do have the right to a speedy and public trial by jury, where the Commonwealth would have to prove your guilt beyond a reasonable doubt. You have the right to confront and cross-examine any witnesses who are called to testify against you as well as the right to compel the attendance of witnesses in your own behalf. You have the right to not testify against yourself--you don't have to incriminate yourself. You have the right to a jury trial on sentencing after the entry of this guilty plea. If you have a trial and you're convicted, you have a right to appeal that conviction to a higher court and if you can't afford a lawyer at that stage in the proceedings the court would appoint one for you. So do you understand all of those rights, Mr. Dunlap?
Appellant : Yes, sir.
Trial court : And do you also understand that by entering a guilty plea today--whether it is Guilty but Mentally Ill, or whether it's just Guilty--that you give up those rights that I just mentioned.
Appellant : Yes, sir.
Trial court : Do you also understand that statements you make here today are against your right to self-incriminate; that is, statements you make today may be used in a sentencing phase of a trial against you.
Appellant : Yes, sir.

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Trial court : Do you think you've had sufficient time to discuss this matter with your lawyers?
Appellant : Yes, sir.
. . . .
Trial court : Now I know from what [your attorney] said before you and I began this discussion that you have talked with your attorneys about your plea of guilty today, and is it your understanding that they agree or disagree with your going forward with any plea today?
Appellant : I understand that they disagree.
Trial court : And despite that disagreement is it your wish to go ahead with a plea today?
Appellant : Yes, sir.
Trial court : Can you tell me why you would go against your attorney's advice and do that?
Appellant : It's what I feel is right.
Trial court : As I mentioned earlier the only plea document that we have is a Motion to Enter a Guilty Plea. It has your constitutional rights spelled out. It says many of the same things I've asked you about not being impaired by drugs and that you're prepared to voluntarily admit your guilt, subject to your claim of Guilty but Mentally Ill and unconditional otherwise. Did you have an opportunity to read this just before our session this morning?
Appellant : Yes, sir.
Trial court : Did you sign it here on the back?
Appellant : Yes, sir.
Trial court : And did you understand it before you signed it?
Appellant : Yes, sir.
Trial court : And did you sign it freely and voluntarily?
Appellant : Yes, sir.
Trial court : Do you also understand that the Commonwealth has made no agreement with you in return for a guilty plea today?
Appellant : Yes, sir.
Trial court : And so you understand that the penalties that I outlined earlier would come into play in the sentencing phase with your guilty plea today without any commitment by the Commonwealth to amend any charges or recommend any particular punishment?
Appellant : Yes, I understand.
. . . .
Trial court : As far as entry of a guilty plea, again, I'm simply going to go through these charges, beginning with Count 1, and ask you if you admit:
On or about October 15, 2008 in Trigg County, you intentionally caused the death of Kayla Williams by stabbing her and cutting her throat with a knife.
Appellant : Yes, sir.
Trial court : [Trial court reads charges 2 through 8; Appellant admits to committing the offenses alleged in each charge.]
In relation to the kidnapping offenses, I want you to explain to me why you tied them up, bound them, and restrained them.
Defense counsel : Objection. We would object that that's unnecessary.
Trial court : All right, then let's approach it this way. Let me just address Mr. Dunlap. Have you talked with your lawyers about the kidnap exemption statute?
Appellant : Yes, sir.
Trial court : All right, and did they explain to you that if a person's criminal purpose is the commission of an offense outside of the kidnapping or other related charges, and if it occurs immediately with and incidental to the commission of

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an offense outside KRS 509 [Kidnapping and Related Offenses], and that unless it exceeds that which is normally incident to the commission of the offense outside of KRS 509 that a person can claim that the kidnapping exemption[9] applies to that?
Appellant : Yes, sir.
Trial court : And let me ask counsel, and that's the purpose, so that I am assured that there is a factual basis to the kidnapping plea. You have discussed that with Mr. Dunlap?
Defense counsel : We have, Your Honor.
Trial court : And I'll leave it at that. I need not have the facts further based upon counsel's representation of having gone over that.
. . . Now back on Count 9, . . . [trial court reads counts 9 through 14; Appellant admits to committing the offenses alleged in each charge].
. . .
[Trial court reads each aggravating factor and Appellant admits to each of them.]
Trial court : All right. Do you admit your guilt to those offenses and to those aggravators because you are guilty and for no other reason?
Appellant : Yes, sir.
Trial court : Knowing that you do have the constitutional rights that I went over earlier and that are set out in the Motion to Enter a Guilty Plea, and knowing that your guilty plea today is against the advice of your attorneys, is it still your desire to give up all those rights by entering those guilty pleas today and allow a jury to affix your punishment in the range allowed by law?
Appellant : Yes, sir.
Trial court : Let me ask you an open-ended question, Mr. Dunlap, is there anything else you want to add about your plea or any question about these proceedings that you have before I ask your attorneys for additional input?
Appellant : No, sir.
Trial court : Are you confused on any point or question that you've given an answer to today?
Appellant : No, sir.

" In addition to determining that a defendant who seeks to plead guilty . . . is competent, a trial court must satisfy itself that the waiver of his constitutional

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rights is knowing and voluntary." Godinez, 509 U.S. at 400 ( citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)). See also Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (" What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." ). " The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This rule has been incorporated into RCr 8.08, which provides in pertinent part: " The court may refuse to accept a plea of guilty or guilty but mentally ill, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge." Additionally, " [d]ue process requires a trial court to make an affirmative showing, on the record, that a guilty plea is voluntary and intelligent before it may be accepted." Edmonds, 189 S.W.3d at 565 ( citing Boykin, 395 U.S. at 241-42).

Turning to the question of voluntariness, " [a] guilty plea is involuntary if the defendant lacked full awareness of the direct consequences of the plea or relied on a misrepresentation by the Commonwealth or the trial court." Id. at 566 ( citing Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). To begin with, there is no allegation that the Commonwealth or the trial court made any representations to induce Appellant's plea. Indeed, Appellant acknowledged that " the Commonwealth ha[d] made no agreement with [him] in return for a guilty plea." Furthermore, Appellant acknowledged that he had been advised of and understood his Constitutional rights, but nevertheless wanted to waive those rights. Additionally, the trial court read to Appellant each Count with which he was charged and the penalty range for each offense; Appellant acknowledged that he understood the charges and the penalty ranges, as well as the kidnapping exemption.

Appellant knew precisely what he was giving up by pleading guilty (in lieu of GBMI) including his Constitutional rights and any defenses to his charges, and was fully aware of the consequences of such a plea. See id. at 566 ( citing Brady, 397 U.S. at 755). Accordingly, substantial evidence supports the trial court's conclusion that Appellant's plea was voluntary.

For the same reasons, Appellant's plea was entered knowingly and intelligently. " A guilty plea is intelligent if a defendant is advised by competent counsel regarding the consequences of entering a guilty plea, including the constitutional rights that are waived thereby, is informed of the nature of the charge against him, and is competent at the time the plea is entered." Id. ( citing Brady, 397 U.S. at 756; Boykin, 395 U.S. at 243). Appellant indicated that he was advised by counsel and the court of " the consequences of entering a guilty plea, including the constitutional rights that are waived thereby, . . . [and] of the nature of the charge[s] against him . . . ." Id. ( citing Boykin, 395 U.S. at 243). Having already concluded that Appellant was " competent at the time the plea [was] entered," id. ( citing Boykin, 395 U.S. at 243), we hold that Appellant's plea was knowing, intelligent, and voluntary.

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Appellant, however, complains that the trial court did not (1) ask " searching questions" about what defenses he might be giving up, or (2) explain that the jury would be told that he pled guilty to six capital offenses.[10] He also complains that the court did not adequately explore why he would be willing to enter a plea without knowing whether it would be Guilty or GBMI, and what the consequences of each choice were. All of his complaints with respect to this issue revolve around his own reluctance to discuss his crimes in detail. He appears to, ask this Court to hold that when a defendant (like himself) refuses to discuss the circumstances surrounding his crimes or his thought-process leading to his decision to plead guilty, insufficient grounds exist from which a trial court can find a knowing, intelligent, and voluntary waiver. We decline to do so. Instead, we hold that the trial court's conclusion was based on substantial evidence and it is therefore not clearly erroneous.

3. The trial court did not err by denying Appellant's request for a continuance and new competency evaluation

Appellant next argues that the trial court erroneously refused to have him re-evaluated for competency to plead guilty. Specifically, he contends that denying his requests for a continuance, new competency evaluation, and second competency hearing violated his Fourteenth Amendment rights to present a defense and due process of law, and his Eighth Amendment right to rational sentencing. He further argues that the court's ruling deprived his attorneys the opportunity to fulfill their duty to investigate all possible defenses and mitigating circumstances and bolster evidence to support a GBMI plea. This issue is preserved.

Assuming, without deciding, that the discovery of the AVM could have provided reasonable grounds on which to grant a continuance and order a new competency evaluation, having already determined that the trial court properly found him competent to reject the advice of counsel and enter a guilty plea, any error here would be harmless beyond a reasonable doubt. Appellant waived his right to present a defense by virtue of pleading guilty. See, e.g., Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) ( " The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense." ) (citation omitted).

Also, the trial court's ruling on the motion did not " deprive" defense counsel of the opportunity to investigate defenses; rather, Appellant's guilty plea absolved defense counsel of their duty to investigate. The trial court was presented with conflicting wishes of counsel and accused. The trial court exercised its discretion, determined that Appellant was competent, and properly heeded to Appellant's wishes. Defense counsel's duty to investigate possible defenses is outweighed by Appellant's right to pacify a guilty conscience and plead guilty. See Jacobs v. Commonwealth, 870 S.W.2d 412, (Ky. 1994) (holding that a competent defendant's right to control his own defense encompasses the right to reject counsel's wishes to present an insanity defense).

Finally, both Dr. Trivette and Dr. Nicholas testified that the AVM would have been present when they respectively found Appellant competent to stand trial. Accordingly,

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a new evaluation to determine Appellant's competency to plead guilty would have been duplicative because, as previously noted, the standards for determining competency to stand trial and competency to plead guilty are identical in this case. Appellant was adjudged competent and is therefore not entitled to relief on these grounds.

4. It was not reversible error for the trial court to ask Appellant to admit to the aggravating circumstances

Appellant next argues that his admission to aggravating circumstances during the plea colloquy was illegal.[11] Specifically, he contends that it was erroneous for the trial court to ask him to admit the aggravators simply because he wanted to plead guilty to the charged offenses. He argues that aggravators are not criminal offenses as defined by the legislature, they are not elements of the offense of murder, and they were not charged by the grand jury in an indictment; thus, he alleges, they were not charges to which he could plead guilty. Additionally, he contends that admitting to the facts listed in the aggravators was outside the scope of his intended plea. This issue is unpreserved.[12]

As previously noted, during the plea colloquy the trial court recited to Appellant the aggravating circumstances alleged by the Commonwealth:

Trial court [T.C.] : Now let me add to those the aggravating factors that the Commonwealth filed by notice that was recorded on January 6, 2009--that the offense of murder was committed upon each minor while the defendant was engaged in the commission of arson in the first degree, burglary in the first degree, and rape in the first degree. The second aggravating circumstance being that the defendant's acts of killing the aforementioned was intentional and resulted in multiple deaths. And the third aggravator is the offenses of kidnapping perpetrated against the minors and their mother, Kristy Frensley, were committed while the defendant was engaged in the commission of the crimes of arson in the first degree, burglary in the first degree, rape in the first degree, and murder in the first degree. Are you also aware that those are the aggravating factors that make the capital offenses punishable potentially by the death penalty?
Appellant : Yes, sir.
Trial court : And is there anything about any of those charges that you don't understand? Or the aggravators for that matter?
Appellant : No, sir.
Trial court : And you understand the facts from which those charges arose--in other words, why you got charged with those offenses.
Appellant : Yes, sir.
Trial court : Is there anything you don't understand about the facts from which those charges arose?

Later in the colloquy, after Appellant admitted his guilt to each count against him, the following exchange occurred:

Trial court : And do you acknowledge that the offense of murder was committed

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upon each minor while you were engaged in the commission of arson in the first degree, burglary in the first degree, and rape in the first degree?
Appellant : Yes, sir.
Trial court : And do you further admit that your acts of killing the three deceased persons were intentional and did result in multiple deaths?
Appellant : Yes, sir.
Trial court : And do you further admit that the offenses of kidnapping against the three minors and their mother were committed while you were engaged in the commission of arson in the first degree, burglary in the first degree, rape in the first degree, and murder in the first degree?
Appellant : Yes, sir.
Trial court : All right. Do you admit your guilt to those offenses and to those aggravators because you are guilty and for no other reason?
Appellant : Yes, sir.

Appellant contends that admitting to the aggravating circumstances was outside the scope of his intended plea; he only intended to waive his rights in the guilt phase, and not the sentencing phase; and that he had a constitutional right to have a jury consider the death penalty only ...


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