Commonwealth v. Rank, 2014-SC-000266-DG
| Decision Date | 25 August 2016 |
| Docket Number | 2014-SC-000266-DG |
| Citation | 494 S.W.3d 476 |
| Parties | Commonwealth of Kentucky, Appellant v. Douglas Rank, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
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
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.
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 sword and attacking Luke.1 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 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 Boykin4
colloquy during which he acknowledged that he 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 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.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. The trial court must “consider the 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.
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 the basis for a defense. The trial court also concluded that an EED...
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