RENDERED: AUGUST 25, 2016
TO PL E
*Inttnt Court of ( firtt
2014-SC-000266-DG
COMMONWEALTH OF KENTUCKY
DATEW/44 lebt; aecovt DC
APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001037-MR
KENTON CIRCUIT COURT NO. 10-CR-00186
DOUGLAS RANK APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
The Commonwealth appeals from an opinion of the Court of Appeals
which remanded this case to the Kenton Circuit Court for an evidentiary
hearing on Appellee Douglas Rank's RCr 11.42 motion. Based upon a guilty
plea, Rank was convicted of first degree assault for which 'he was serving a
fifteen-year prison sentence when he moved pursuant to RCr 11.42 to vacate
his conviction. Rank's motion included a request for an evidentiary hearing to
establish that his guilty plea was not made knowingly, intelligently and
voluntary and was, instead, the result of ineffective assistance of his trial
counsel, Robert P. Gettys, and to lesser degree, attorney Pat Hickey.
The circuit court denied Rank's motion without an evidentiary hearing.
Rank appealed, and the Court of Appeals concluded that he had raised issues
of fact that required an evidentiary hearing and remanded the case for an
evidentiary hearing. We granted the Commonwealth's motion for discretionary
review. For reasons stated below, we affirm the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rank advances several theories to support the claim that he was denied
the effective assistance of trial counsel in connection with this guilty plea. His
primary claim is that Gettys failed to advise him about the possibility of a
defense based upon the legal theory of "extreme emotional disturbance" (EED),
which if successfully asserted could have resulted in a lesser offense, and
correspondingly, a lesser sentence. Rank complains that Gettys never explored
the viability of an EED defense. Rank also asserts that Gettys was ineffective
as a result of several ethical violations, including an attorney's fee and lien
agreement that created a personal conflict of interest affecting his
representation of Rank. For a proper perspective of Rank's claims, we first
review the circumstances of his conviction.
Rank was a practicing psychiatrist who developed a romantic
relationship with a former patient named Misty Luke, who would become the
victim of his assault. The couple lived together at Rank's residence located in
the same building as his professional office. After a heated argument with
Rank, and apparently believing that he had left the building, Luke texted a
message to Rank telling him that she was ending their relationship and
leaving. Rank, still on the premises, reacted immediately by returning with a
2
sword and attacking Luke.' He stabbed her four times. Other residents in the
building heard the commotion and intervened. They overpowered Rank, took
the sword, and removed Luke from the scene.
Rank was arrested; his bail was set at $50,000.00 cash. Through the
advice of an attorney-friend, Patrick Hickey, Rank hired Gettys for his criminal
defense. Rank claims that Gettys and Hickey advised him not to post bond.
Gettys obtained Rank's power-of-attorney so that he would have control over
Rank's assets, ostensibly to protect them from a possible civil suit by Luke.
A few weeks later, Rank was indicted and charged with attempted
murder, a Class B felony carrying a possible sentence of ten to twenty years'
imprisonment. Gettys moved for a psychiatric evaluation to determine if Rank
was competent to stand trial. The trial court ordered the Kentucky
Correctional Psychiatric Center (KCPC) to examine Rank and report upon his
competence. After an evidentiary hearing on the issue, the trial court
concluded that Rank was competent.
In the meantime, Gettys had secured the services of Dr. , Bobby Miller, a
board-certified forensic neuro-psychiatrist, to interview Rank and advise Gettys
with respect to Rank's mental condition. Eventually, Dr. Miller would testify at
the sentencing hearing that he determined that, although Rank was not
insane, he suffered from schizotypal personality disorder. Gettys served notice
pursuant to RCr 7.24(3)(B)(i) that Rank would present expert testimony at trial
1 The sword was apparently a Civil War relic that was part of a collection belonging to
another resident of the building.
3
to show that Rank suffered from a mental disease or defect, or other mental
condition relevant to the issue of guilt or punishment. 2 Gettys also moved the
court for permission to obtain a pretrial deposition of Luke on the grounds that
to properly evaluate Rank and formulate an opinion for use at trial, Dr. Miller
needed information from Luke.
At that point in the pretrial process, the Commonwealth extended a
written plea offer, agreeing to recommend a sentence of 15 years' imprisonment
if Rank would plead guilty to an amended charge of first degree assault. 3 On
Gettys' advice, Rank accepted the offer. His plea was entered in open court
following the typical Boykin 4 colloquy during which he acknowledged that he
2 In 2010, RCr 7.24(3)(B)(i) provided in part: "If a defendant intends to introduce
expert testimony relating to a mental disease or defect or any other mental condition
of the defendant bearing upon the issue of his or her guilt or punishment, the defendant
shall, at least 20 days prior to trial, or at such other time as the court may direct upon
reasonable notice to the parties, notify the attorney for the Commonwealth in writing
of such intention and file a copy of such notice with the clerk." As filed, the notice
does not indicate specifically whether expert testimony is intended to be introduced for
guilt or punishment. Today, however, a notice to introduce expert testimony on
mental issues must contain the purpose of the testimony. Effective January 1, 2013,
RCr 8.07(2)(A) provides in part: "A defendant who intends to introduce expert evidence
relating to a mental disease or defect or any other mental condition of the defendant
bearing on (i) the issue of guilt; (ii) the issue of punishment; or (iii) the issue of guilt
and the issue of punishment; shall, not less than ninety (90) days before the date set
for commencement of trial of the alleged offense, file a notice in writing of this
intention with the clerk and serve a copy of the notice upon the attorney for the
Commonwealth and all other parties. The notice shall specify whether the defendant
intends to introduce expert evidence bearing on the issue of guilt, the issue of
punishment or both such issues." (Emphasis added.)
3 First degree assault, like attempted murder, is a Class B felony, so the plea offer
involved a different charge than the original indictment, but not a reduced charge.
4 Boykin v. Alabama, 395 U.S. 238 (1969).
had no complaints regarding the services of his counsel and that he was
pleading guilty freely, knowingly, intelligently and voluntarily.
Although the plea agreement stated that Rank could argue for "a lesser
or probated sentence," Rank understood that because of the nature of his
crime, probation was statutorily prohibited and he would not be eligible for
parole until he had served 85% of the sentence. 5 The trial court accepted the
guilty plea and ordered a presentence investigation.
At the sentencing hearing and pursuant to its agreement, the
Commonwealth recommended a fifteen-year sentence. The prosecutor asserted
that Rank's attack on Luke was motivated by rage and jealously that she was
leaving him. In mitigation of punishment, Gettys presented testimony of three
witnesses: a rabbi who had known Rank for several years, a former
professional associate of Rank, and Dr. Miller.
Dr. Miller testified that Rank was competent and sane, but suffered from
schizotypal personality disorder that caused problems in interpersonal
relationships and made him susceptible to "fixed responses" in stressful
situations. Dr. Miller explained at the sentencing hearing that the intensity of
Rank's attack on Luke was caused by the sense of betrayal he felt when Luke
said she was leaving him. Gettys informed the trial court that he had initially
considered an insanity defense, but Dr. Miller's opinion ruled it out. Gettys
urged the trial to consider Rank's personality disorder, with its associated
5 See KRS 439.3401.
5
obsessive behavior and poor interpersonal relations, along with his alcohol use
on the night of the assault, as factors in mitigation of punishment. Rank
offered no explanation for his conduct and claimed that he had no recollection
of the incident. The trial court declined Rank's plea for mitigation and imposed
the fifteen-year sentence recommended by the Commonwealth.
II. RCr 11.42 AND THE STRICKLAND TEST FOR INEFFECTIVE
ASSISTANCE OF COUNSEL
RCr 11.42 provides a process by which a convicted prisoner may
collaterally attack the validity of his sentence. When a motion for relief under
RCr 11.42, or the response to such a motion, raises a material issue of fact
that cannot be resolved on the face of the record, the trial court must grant a
prompt hearing. RCr 11.42(5). To successfully establish the invalidity of a
guilty plea based upon the allegedly deficient performance of defense counsel,
the movant must satisfy both prongs of the two-part test set forth in Strickland
v. Washington, 466 U.S. 668 (1984) and restated by this Court in Bronk v.
Commonwealth, 58 S.W.3d 482, 486-487 (Ky. 2001). The movant must
demonstrate that: (1) defense counsel's performance fell outside the wide range
of professionally competent assistance; and that (2) a reasonable probability
exists that, but for the deficient performance of counsel, the movant would not
have pled guilty, but would have insisted on going to trial. In making that
determination, the trial court must indulge the strong presumption that
counsel's conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. The trial court must "consider the
6
totality of the circumstances surrounding the guilty plea and juxtapose the
presumption of voluntariness inherent in a proper plea colloquy with a
Strickland v. Washington inquiry into the performance of counsel[.]" Bronk, 58
S.W.3d at 486 (citations omitted). "[T]he 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.
Rank's RCr 11.42 motion alleged several specific deficiencies in Gettys'
representation. Rank claims that Gettys failed to explore the possibility of an
EED defense and that he failed to explain to him the legal concept of EED. He
also claims that the effectiveness of Gettys' representation was compromised by
the conflicts of interest inherent in Gettys' fee arrangement. Rank also claimed
that Gettys failed to file a formal discovery motion, failed to follow criminal
practice and procedure, failed to assist him in posting bond, and failed to
adequately counsel him in making a knowing and intelligent decision to plead
guilty. He also claimed that Gettys failed to present effective mitigating
evidence at the sentencing hearing.
The trial court regarded Gettys' apparent conflict of interest as troubling,
but otherwise concluded under Strickland inquiry that it had no effect on the
issue of whether Rank had intelligently and voluntarily pled guilty. The trial
court rejected Rank's claim that Gettys failed to investigate the EED defense,
pointing out that Gettys fulfilled his obligation of competent representation by
retaining Dr. Miller to evaluate Rank for mental conditions that might provide
7
the basis for a defense. The trial court also concluded that an EED defense
could not have succeeded because Rank, who claimed to have no recollection of
the event, would not have been able to explain at trial what provoked him to
assault Luke.
Based upon the totality of the circumstances apparent from the face of
the record, the trial court concluded that Rank could not satisfy Strickland's
second prong by demonstrating a reasonable probability that, but for counsel's
deficient performance, Rank would have insisted on going to trial rather than
plead guilty. The trial court found, that a[w]hile his counsel's performance may
well have fallen outside the range of professionally competent and ethical
assistance, [Rank] has failed to establish that he would have proceeded to trial
in this case [but for counsel's deficient performance.]"
The Court of Appeals disagreed, holding that whether Rank, if properly
advised and represented, would have rejected the plea offer and proceeded to
trial hinged upon issues of fact that could not be determined from the record
alone. Specifically, the Court of Appeals found that the record was insufficient
to dispel Rank's claim that Gettys did not investigate the EED defense, and
that Dr. Miller's testimony at the sentencing hearing did not foreclose that
factual issue. The Court of Appeals found that Rank's other claims of deficient
representation, including Gettys' advice not to post bail, his failure to obtain
formal discovery, and his control of Rank's assets all raised factual issues that
may have influenced Rank's decision to plead guilty. We granted discretionary
review of that decision and now affirm the Court of Appeals.
8
III. ANALYSIS
A. An evidentiary hearing is warranted on Rank's claim that counsel
failed to investigate and advise him of an EED defense.
The Commonwealth contends that the Court of Appeals erred because
the record clearly demonstrates the invalidity of Rank's claim that Gettys failed
to properly investigate the viability of an EED defense. The Commonwealth
reiterates the trial court's conclusion that Gettys' effectiveness with respect to
an EED defense was established by the fact that he employed Dr. Miller as a
mental health consultant and expert witness to evaluate Rank and to consult
with counsel. The Commonwealth also argues that under the facts apparent
from the record and as established at the sentencing hearing, an EED jury
instruction and the possibility of a lesser offense that comes with it, would not
have been available to Rank. We do not agree.
In his RCr 11.42 motion, Rank identified two deficiencies in Gettys'
performance relating to EED. Rank alleged that the concept of EED as a
defense against attempted murder was never discussed with him by Gettys, by
Hickey, or by Dr. Miller, and that he was not otherwise aware of the potential
EED defense until he was sentenced. Rank also alleged that his attorney did
not investigate the circumstances of the crime to determine if an EED defense
was feasible. Consequently, Rank claimed, he was not able to make an
intelligent, informed decision.
KRS 507.020 provides for the reduction of a murder charge to first-
degree manslaughter when the accused intended to kill the victim but "acted
9
under the influence of an [EED] for which there was a reasonable explanation
or excuse, the reasonableness of which is to be determined from the viewpoint
of a person in the defendant's situation under the circumstances as the
defendant believed them to be." KRS 508.040(1) extends the same mitigating
effect of EED to assault charges.
In McClellan v. Commonwealth, we defined "extreme emotional
disturbance" as follows:
Extreme emotional disturbance is a temporary state of mind so
enraged, inflamed, or disturbed as to overcome one's judgment,
and to cause one to act uncontrollably from the impelling force of
the extreme emotional disturbance rather than from evil or
malicious purposes. It is not a mental disease in itself, and an
enraged, inflamed, or disturbed emotional state does not constitute
an extreme emotional disturbance unless there is a reasonable
explanation or excuse therefor, the reasonableness of which is to
be determined from the viewpoint of a person in the defendant's
situation under circumstances as defendant believed them to be.
715 S.W.2d 464, 468-469 (Ky. 1986).
The possibility that EED played a role in Rank's crime would have been
readily apparent to any lawyer versed in criminal law and aware of the basic
facts of the crime. Consistent with the Commonwealth's version of events,
Rank became enraged upon learning that his cohabitant girlfriend was
breaking up their relationship and he immediately attacked her violently and
intensely with a sword, stabbing her four times.
The significance of the EED defense is apparent in Rank's case. Before
agreeing to plead guilty to first degree assault, Rank was charged with
attempted murder and, had he opted to go to trial, he would have been tried on
10
that charge. Attempted murder is a Class B felony 6 with a sentencing range of
not less than ten nor more than twenty years' imprisonment.? However, when
committed by one acting under the influence of extreme emotional disturbance,
attempted murder would be reclassified as attempted first degree
manslaughter, which is a Class C felony, 8 with a sentencing range of not less
than five nor more than ten years' imprisonment. 9 It is worth noting that the
amendment of the charge to first degree assault did not afford Rank any
sentencing advantage at all. First degree assault, like attempted murder, is a
Class C felonym with the same ten-to-twenty year sentencing range. However,
first degree assault, when committed by one acting under the influence of an
extreme emotional disturbance, drops down to a Class D felony." A Class D
felony carries a sentencing range of imprisonment for not less than one nor
more than five years. 12
Because we cannot know with certainty how the evidence would have
unfolded at trial, we cannot predict how the jury would have been instructed.
6 Murder is a capital offense, KRS 507.020, and therefore attempted murder is a Class
B felony. KRS 506.010(4)(b) ("A criminal attempt is a: . . . (b) Class B felony when the
crime attempted is a Class A felony or capital offense[.]").
7 KRS 532.060(2)(b).
8 First degree manslaughter is a Class B felony under KRS 507.030(2), and therefore
attempted first degree manslaughter is a Class C felony. KRS 506.010(4)(c) ("A
criminal attempt is a: . . . (c) Class C felony when the crime attempted is a Class B
felony[.)").
9 KRS 532.060(2)(c)
10 KRS 508.010(2).
11 KRS 508.040(2)(a).
12 KRS 532.060(2)(d).
11
Nevertheless, we can say that it is entirely plausible from the circumstances of
the crime that the jury would have been instructed on alternative theories of
guilt allowing for a conviction for attempted murder or first degree assault,
pursuant to Hall v. Commonwealth, 337 S.W.3d 595, 608 (Ky. 2011) ("[W]here
the victim's suffering a serious physical injury is not really at issue, a first
degree assault instruction can be given as a lesser-included offense when the
defendant's intent (to kill or to injure) determines whether he or she is guilty of
first degree assault or attempted murder."). Thus, the presentation of an EED
defense could have resulted in a conviction for the Class D felony of first degree
assault under extreme emotional disturbance.
Rank alleges that he was never advised by counsel about EED and the
effect it could have on his sentence and, therefore, he never had the option of
making an informed decision. It is entirely, possible, and it is not unreasonable
to believe, that if Rank had been properly advised with respect to EED and the
possibility of a sentence of less than five years, he would have opted for a trial.
Instead, he pled guilty to an amended charge that carried exactly the same
penalty range, ten to twenty years, as the initial charge.
The trial court denied Rank's RCr 11.42 motion based on the second
prong of Strickland, finding no reasonable probability that, but for the deficient
performance of counsel, Rank would have insisted on going to trial. If Rank's
claim that, before pleading guilty, he was not fully and fairly apprised with
respect to EED is true, there is a reasonable possibility that he may have
rejected the plea offer and opted for trial. The record does not on its face
12
resolve that factual issue. The Court of Appeals correctly concluded that an
evidentiary hearing should have been granted.
Rank also contends that Gettys not only failed to advise him with respect
to EED, but that he failed even to investigate or explore the possibility of
raising EED in defense to the attempted murder charge. The Commonwealth
argues that that aspect of Rank's claim is refuted by Gettys' retention of a
mental health expert. Gettys' retention of Dr. Miller does not conclusively
demonstrate that he was attuned to the obvious possibility that EED might
apply to reduce the severity of the principal charge, and hence, the applicable
range of punishment.
The record clearly establishes that Gettys was concerned about Rank's
competence to stand trial and about the plausibility of an insanity defense. He
expressly hired Dr. Miller to explore those possibilities. Competence and
insanity are ordinarily the manifestation of a mental disease or defect.
Extreme emotional disturbance is neither. Except in rare cases where the
diagnosis is self-evident, competence to stand trial and insanity typically
depend upon the informed opinion of a medical, psychiatric, or psychological
expert. Unlike competence and insanity, extreme emotional disturbance by
definition does not arise from a mental disease or defect. See McClellan, supra.
It is a factual determination reasonably within the ordinary comprehension of
lay jurors. Expert psychiatric or psychological testimony may assist in
understanding an emotional reaction like EED, but expert opinion testimony is
not required to sustain a finding of EED.
13
The record does not conclusively establish that Dr. Miller examined Rank
for the purpose of testifying about EED. The record is silent with respect to Dr.
Miller's role beyond determining Rank's sanity and competence. Dr. Miller met
with Rank one time for 3 1/2 hours to conduct his basic evaluation of Rank's
current mental status. He told Gettys it was unlikely he could assist in Rank's
mental health defense during the guilt/innocence trial phase. His role was to
provide mitigating testimony at sentencing by explaining Rank's diagnosed
schizotypal personality disorder. Dr. Miller never mentioned EED, and whether
he considered it and discussed it with Gettys or Rank is not apparent from the
record.
In support of his contention that Dr. Miller was not hired to explore the
viability of an EED defense, Rank asserts that during Dr. Miller's evaluation of
him, Dr. Miller asked no questions bearing on the possibility that the attack
may have resulted from an EED, and that Dr. Miller never mentioned EED. Dr.
Miller testified at the sentencing hearing that he was hired to help Gettys
understand Rank and to help explain Rank's disorder and behavior in the
context of the crime as part of mitigation.
We accept the Commonwealth's response that defense counsel cannot be
held responsible for the quality of an expert's evaluation, but that misses the
point. If Dr. Miller was not expressly instructed to evaluate Rank and the
circumstances of his crime in light of the definition of EED, the error is Gettys',
not Miller's. The record does not resolve the question. Defense counsel's
obligation to conduct reasonable investigations, Haight v. Commonwealth, 41
14
S.W.3d 436, 446 (Ky. 2001), is not altered when a mental health expert is
employed to conduct an EED evaluation.
EED is a statutorily defined defense bearing upon the issue of guilt; more
specifically, it can determine which crime the defendant committed. Coffey v.
Messer, 945 S.W.2d 944, 946 (Ky. 1997). Defense counsel has a duty to
conduct a reasonable investigation of law and facts relevant to potential
defenses. In assessing the reasonableness of counsel's investigation, Strickland
explains:
The reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or
actions. Counsel's actions are usually based, quite properly, on
informed strategic choices made by the defendant and on
information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on such
information. For example, when the facts that support a certain
potential line of defense are generally known to counsel because of
what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether. And
when a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even harmful,
counsel's failure to pursue those investigations may not later be
challenged as unreasonable. In short, inquiry into counsel's
conversations with the defendant may be critical to a proper
assessment of counsel's investigation decisions, just as it may be
critical to a proper assessment of counsel's other litigation
decisions.
466 U.S. at 691 (citation omitted). Thus, defense counsel is obligated "to make
reasonable investigations [of potentially applicable legal and factual issues] or
to make a reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691.
15
Rank's motion raised a material question as to the reasonableness of
Gettys' investigation of the potential for an EED defense or, framed differently,
whether it was reasonable for Gettys not to pursue an EED defense.. See
Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (an evidentiary hearing is
required to determine whether counsel's decision was "trial strategy or an
abdication of advocacy"). Gettys' knowledge and understanding of the relevant
facts relating to a potential EED defense are not evident on the face of the
record. An evidentiary hearing on Rank's RCr 11.42 motion was required to
ascertain those facts.
B. An evidentiary hearing is not warranted on Rank's other claims.
Rank also alleges that factors, other than the EED issue, also rendered
defense counsel's performance constitutionally ineffective. He argues that an
evidentiary hearing should have been granted to determine if counsel's
effectiveness was impaired due to his conflicts of interest; his failure to file a
formal written motion for discovery; his failure follow criminal practice and
procedure; his failure to assist Rank in getting released on bond to aid in his
defense; a breach of counsel's fiduciary duty; counsel's failure to adequately
assist him in making a knowing, intelligent, and voluntary decision about
whether or not to plead guilty; and counsel's failure to present effective
mitigating evidence at the sentencing hearing. As explained below, we are
satisfied that these claims did not require an evidentiary hearing.
16
1. Conflict of interest
Rank alleges that his acquaintance and personal attorney, Patrick
Hickey, not only recommended that he hire Gettys, but also acted as Gettys'
co-counsel. As described by Rank, Hickey's role as co-counsel is demonstrated
by Hickey visiting him in jail, advising him (in conjunction with Gettys) not to
post bond and to liquidate his assets, counseling him about whether or not to
plead guilty, providing materials to the expert witness, and sitting at counsel
table during sentencing. Hickey had previously represented Luke in an
eviction case and Rank contends that that representation created a conflict of
interest for Hickey.
Mitchell v. Commonwealth, 323 S.W.3d 755, 760 (Ky. App. 2010),
provides the standard of review particular to an ineffective assistance of
counsel claim premised on a conflict of interest. "[I]n order to successfully
assert a claim of ineffective counsel based on a conflict of interest, a defendant
who entered a guilty plea must establish: (1) that there was an actual conflict
of interest; and (2) that the conflict adversely affected the voluntary nature of
the guilty plea entered by the defendant." Id. at 760 (citing Thomas v. Foltz,
818 F.2d 476, 480 (6th Cir. 1987)). "A conflict arises from competing duties or
interests that create the potential for prejudice." Beard v. Commonwealth, 302
S.W.3d 643, 647 (Ky. 2010).
Applying this standard to Rank's allegations, we conclude that an
evidentiary hearing.on the issue was not required. Hickey's prior
17
representation of Luke in an unrelated civil action could not have affected
Rank's defense in the criminal case.
2. Failure to file a formal discovery motion
Rank alleges that Gettys failed to file a routine motion for discovery, and
that he further failed to provide Rank with the discovery materials voluntarily
disclosed by the Commonwealth. Our review of the record persuades us that
Rank cannot establish that Gettys' performance with respect to pretrial
discovery was substandard or that it had any prejudicial effect on the defense.
The record indicates, and Rank acknowledges, that all discoverable material
was obtained. Gettys' failure to make an unnecessary motion was not
unreasonable. Rank cannot demonstrate how he was prejudiced by not seeing
all of the discovery material Gettys obtained. An evidentiary hearing is not
required on this issue.
3. Failure to follow proper procedure in motion to depose the victim
Rank alleges that Gettys' motion to depose Luke did not comply with
proper criminal practice and procedure. He asserts that the motion provided
no supporting legal authority and was filed without proper notice to the
Commonwealth. Although the trial court allowed Gettys time to submit
supporting authority for the request to depose Luke, Rank asserts that Gettys
never did so.
Rank complains that Gettys' omission displays his lack of understanding
of criminal law practice and procedure. He does not, however, indicate how he
was prejudiced, and we fail to see any prejudice. The record reflects that
18
Luke's deposition was taken and was available to Dr. Miller. An evidentiary
hearing is not required on this issue.
4. Failure to assist in posting bond; and breach of fiduciary duty
Rank alleges that both Gettys and Hickey advised him that posting bond
would be adverse to his interest because it would create the appearance that
he was wealthy; it may encourage Luke to file a civil suit against him; and it
may lead to getting his bond increased. Gettys advised Rank to grant Gettys
his power of attorney so that Gettys could shield Rank's assets from the
potential civil claim. Rank points out if he had posted bond, he would not have
needed Gettys to have his power of attorney, nor would he have had to pay
Gettys for managing his personal business affairs. Rank claims that Gettys
sold many of Rank's possessions for less than fair market value. As noted by
the trial court, these allegations raise troubling ethical concerns but Rank does
not explain how these actions would have impacted his decision to plead guilty.
An evidentiary hearing is not required for these issues.
5. Misadvice on guilty plea
Rank contends that he was induced to plead guilty as a result of
inaccurate advice provided by trial counsel about his eligibility for probation
and parole. Even if this allegation is true, which is a factual issue we do not
decide, the record discloses that the trial court clearly and correctly informed
Rank that he was pleading guilty to a violent crime and would have to serve
85% of the sentence before becoming eligible for parole. Although at one point
in the plea hearing Rank hesitated and asked for a continuance to more fully
19
consider his options, he ultimately relented and acknowledged that his guilty
plea was knowing, intelligent, and voluntary. We held in Edmonds v.
Commonwealth
If the information given by the court at the plea hearing corrects or
clarifies the earlier erroneous information given by the defendant's
attorney and the defendant admits to understanding the court's
advice, the criminal justice system must be able to rely on the
subsequent dialogue between the court and defendant.
189 S.W.3d 558, 568 (Ky. 2006) (quotation and citations omitted).
The record reveals that any erroneous information given to Rank by
counsel about probation and parole eligibility was corrected by the trial court.
The trial court explained the terms of the plea and Rank expressed his
understanding of them. An evidentiary hearing is not required on this issue.
6. Mitigation evidence at sentencing hearing
Rank alleges that defense counsel failed to present effective mitigating
evidence at his sentencing hearing. He complains that Gettys presented the
testimony of Dr. Miller that he had schizotypal personality disorder, that he did
not think his actions were wrong, and that he chose the sword as his weapon
because of its meaning to him. Rank complains that Dr. Miller's testimony
portrayed him as unremorseful and dangerous. He blames Gettys for not
anticipating the negative impact of Dr. Miller's testimony. Rank also complains
that Gettys' examination of other witnesses at the sentencing hearing failed to
focus on his better qualities, his lack of a criminal record, and his remorse, but
instead emphasized Rank's obsessive/compulsive nature. Rank's complaints
are, in this regard, refuted by the record. Rank seemingly discounts the
20
positive references to his intelligence and productivity as a member of society.
Dr. Miller described the schizotypal personality disorder as treatable with
medication and psychotherapy, and that with treatment, Rank posed no
danger to society. A significant amount of sentencing hearing testimony
reinforced Gettys' plea for mitigation.
Although Rank complains about his counsel's witness selection,
"[d]ecisions relating to witness selection are normally left to counsel's judgment
and this decision will not be second-guessed by hindsight." Foley v.
Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000) (citation omitted), overruled on
other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005).
Furthermore, a defendant "is not guaranteed errorless counsel, or counsel
judged ineffective by hindsight, but counsel likely to render and rendering
reasonably effective assistance." Haight, 41 S.W.3d at 442.
As is not uncommon, after hearing the mitigation testimony, the trial
court imposed the sentence recommended by the Commonwealth rather than
the sentence hoped for by the defendant. The record refutes Rank's claim that
Gettys' performance with respect to mitigation witnesses was prejudicial to his
case. An evidentiary hearing is not required on this issue.
IV. CONCLUSION
For the foregoing reasons, the Court of Appeals is affirmed. This case is
remanded to the Kenton Circuit Court for an evidentiary hearing on Rank's RCr
11.42 motion, limited to the issue involving counsel's alleged ineffectiveness in
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investigating the potential for an EED defense and in advising Rank with
respect to the possible ramifications of an EED defense.
AU sitting. Minton C.J.; Cunningham, Hughes, and Noble, JJ., concur.
Keller, and Wright, JJ., concur in result only.
COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General of Kentucky
Taylor Allen Payne
Assistant Attorney General
COUNSEL FOR APPELLEE:
Douglas Rank
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty KY 41472
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