RENDERED: NOVEMBER 9, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1044-MR
ASIEL IRAOLA-LOVACO APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CR-00202
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: In 2015, Appellant, Asiel Iraola-Lovaco, struck three
individuals with his vehicle and then drove away from the scene. Two of the
victims lost a leg and all required extensive medical treatment. He entered a guilty
plea to one count of leaving the scene of an accident. A Fayette County jury found
him guilty of three counts of second-degree assault, and one count of driving under
the influence of alcohol. The jury recommended a sentence of 30 years’
imprisonment. He was ultimately sentenced to serve 20 years.1 His conviction
was unanimously affirmed by the Kentucky Supreme Court. See Iraola-Lovaco v.
Commonwealth, 586 S.W.3d 241 (Ky. 2019). Appellant subsequently filed a
motion for post-judgment relief pursuant to RCr2 11.42. He was initially
represented by an attorney with the Department of Public Advocacy (DPA). His
counsel reviewed the case pursuant to KRS 31.110(2)(c) and concluded that this
was “not a proceeding that a reasonable person with adequate means would be
willing to bring at his or her own expense.” As a result, counsel filed a Motion to
Allow the DPA to Withdraw as Counsel and to Allow Movant to Fully Pursue His
Claims Pro Se. The motion to withdraw was granted. Thereafter, the court
scheduled a RCr 11.42 evidentiary hearing. The circuit court ultimately denied
Appellant’s motion for post-conviction relief. Appellant now appeals to this Court
as a matter of right. For the following reasons, we affirm.
Appellant specifically claims that his trial counsel failed to: 1)
present a defense of extreme emotional distress; 2) object to the prosecutor crying
during the Commonwealth’s closing argument; 3) make an opening statement
during the penalty phase of trial; and 4) call more than one defense witness during
1
Pursuant to Kentucky Revised Statutes (KRS) 532.080 and KRS 532.110 the cap on Class C
and D felonies is twenty (20) years.
2
Kentucky Rules of Criminal Procedure.
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the penalty phase of trial. He also argues that defense counsel was deficient due to
his statement during closing argument that Appellant should receive “more time.”
As to the latter claim, trial counsel did not ask the jury to consider the minimum
sentence. Instead, he requested that they assess an increased term of years, but to
be served concurrently.
A successful motion for relief under RCr 11.42 for ineffective
assistance of counsel must survive the twin prongs of “performance” and
“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). As to the
second Strickland prong, the defendant has the duty to “affirmatively prove
prejudice.” Id. at 693. Appellant’s sole issue on appeal is that he was erroneously
denied counsel during the underlying evidentiary hearing. RCr 11.42(5) provides
in relevant part as follows:
If the answer raises a material issue of fact that cannot be
determined on the face of the record the court shall grant
a prompt hearing and, if the movant is without counsel of
record and if financially unable to employ counsel, shall
upon specific written request by the movant appoint
counsel to represent the movant in the proceeding,
including appeal.
Appellant correctly cites that “[i]f an evidentiary hearing is required, counsel must
be appointed to represent the movant if he/she is indigent and specifically requests
such appointment in writing.” Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky.
-3-
2001) (citation omitted). The Commonwealth does not contest Appellant’s
indigency, or that he requested counsel. In fact, on the same day he filed his RCr
11.42 petition, Appellant also filed a pro se motion to proceed in forma pauperis
and for appointment of counsel. This satisfies the writing requirement. However,
the Commonwealth correctly cites that the Kentucky Supreme Court has held that
when the evidentiary hearing is an exercise in futility, any error in failing to
appoint counsel for the RCr 11.42 motion, is harmless. Commonwealth v. Stamps,
672 S.W.2d 336, 339 (Ky. 1984). See also Fraser, 59 S.W.3d at 455 (citing
Stamps, 672 S.W.2d at 337-39).
We have reviewed the underlying hearing. Therein, the
Commonwealth, the trial judge, and Appellant, all questioned Appellant’s trial
counsel regarding the claims raised in the RCr 11.42 motion. The court denied
Appellant’s motion in a well-reasoned eleven-page order. Any error that occurred
here due to the absence of counsel was harmless. Therefore, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney Hightower
Assistant Attorney General
Frankfort, Kentucky
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Asiel Iraola-Lovaco v. Commonwealth of Kentucky
Combined Opinion