EDWARD RALPH LONG v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000199-MR
EDWARD RALPH LONG
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 98-CR-00176
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE.
Edward Ralph Long appeals from an order of the
Campbell Circuit Court denying his motion to vacate, set aside,
or correct sentence brought pursuant to RCr 11.42.
Having
concluded that Long received effective assistance of counsel, we
affirm.
On May 14, 1998, the Campbell County Grand Jury
indicted Long on four counts of assault in the first degree1 and
1
Kentucky Revised Statutes (KRS) 508.010.
one count of being a persistent felony offender in the first
degree (PFO I).2
The Commonwealth alleged that on April 23,
1998, Long had stabbed two individuals with a bladed martial-arts
weapon called a kama and that in an apparently related incident
two days later he had stabbed a third individual with a knife and
had struck a fourth with a beer bottle.
On June 5, 1998, defense counsel filed a discovery
request asking for all police and medical reports, statements of
witnesses, and exculpatory evidence.
Counsel also moved to
separate and sever for trial those counts related to each of the
two incidents.
When counsel indicated that he might wish to
pursue a defense based on mental disease or defect, the court
ordered a mental competency evaluation of Long by personnel at
the Kentucy Correctional Psychiatric Center (KCPC).
The KCPC
evaluation indicated that Long was competent to stand trial and
did not lack criminal responsibility for his actions due to
mental disease or defect.
The court then granted the motion to
sever and ordered separate trials for the counts related to the
two incidents.
In conjunction with this order, however, the
court advised Long that a conviction on the two counts involving
the April 23 incident could be used as evidence of prior bad acts
in a subsequent trial on the remaining counts.
On October 28, 1998, Long entered a guilty plea to the
four counts of assault in the first degree pursuant to a plea
2
KRS 532.080. The PFO I count was based on Long’s prior
felony convictions for assault in the third degree, burglary in
the third degree and trafficking in marijuana within 1,000 yards
of a school.
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agreement.
Under the agreement, the Commonwealth moved to
dismiss the PFO I count and recommended a sentence of ten years
on each of the four assault counts to run concurrently for a
total sentence of ten years.
On December 10, 1998, the trial
court sentenced Long accordingly to ten years’ imprisonment.
On November 2, 1999, Long filed an RCr 11.42 motion
based on ineffective assistance of counsel.
He alleged that
defense counsel had failed to investigate adequately and so had
failed to develop a potentially meritorious self-protection
defense.
Counsel had also failed, Long contended, to challenge
the alleged seriousness of the victims’ injuries.
Such a
challenge, Long maintained, would likely have resulted in a
reduction of the charges against him.
evidentiary hearing on the motion.
Long requested an
On December 30, 1999, the
circuit court denied the motion and the request for a hearing.
This appeal followed.
Long argues on appeal that the trial court erred by
denying his RCr 11.42 motion without a hearing.
He contends that
counsel rendered ineffective assistance in failing to challenge
the element of first-degree assault requiring the existence of
“serious physical injury” and for failing to investigate the
defense of self-protection.
He maintains that an evidentiary
hearing was necessary to evaluate defense counsel’s conduct.
We begin by noting that a movant is not automatically
entitled to an evidentiary hearing on his RCr 11.42 motion.3
3
An
Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 904 (1998),
cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 359
(continued...)
-3-
evidentiary hearing is not required when the issues raised in the
motion are refuted on the record, or when the allegations, even
if true, would not be sufficient to invalidate the conviction.4
RCr 11.42 does not require a hearing to serve the function of
discovery.5
In order to establish ineffective assistance of
counsel, a defendant must satisfy a two-part test by showing both
that counsel’s performance was deficient, and that the deficiency
resulted in actual prejudice affecting the outcome of the
proceeding.6
He is not entitled to relief unless he shows that
the underlying proceeding was fundamentally unfair or that its
result was unreliable.7
When a defendant challenges a guilty
plea based on ineffective assistance of counsel, he must show
both that counsel made serious errors outside the wide range of
professionally competent assistance,8 and that the deficient
performance so seriously affected the outcome of the plea process
3
(...continued)
(1999).
4
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 908
(1998), cert. denied, 526 U.S. 1025, 119 S.Ct. 1266, 143 L.Ed.2d
361 (1999); Baze v. Commonwealth, Ky., 23 S.W.3d 619, 628 (2000).
5
Haight v. Commonwealth, Ky., 41 S.W.3d 436, 443 (2001).
6
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); Harper v. Commonwealth, Ky., 978 S.W.2d
311, 314 (1998), cert. denied, 526 U.S. 1056, 119 S.Ct. 1367, 143
L.Ed.2d 527 (1999).
7
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,
842, 112 L.Ed.2d 180 (1993); Casey v. Commonwealth, Ky. App., 994
S.W.2d 18 (1999).
8
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441,
1449, 25 L.Ed.2d 763 (1970).
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that, but for the errors of counsel, there is a reasonable
probability that the defendant would not have pled guilty, but
would have insisted on going to trial.9
The defendant bears the burden of establishing
ineffective assistance.10
A court must be highly deferential in
scrutinizing counsel’s performance and avoid second-guessing
counsel’s actions based on the benefit of hindsight.11
The
defendant must overcome a strong presumption that counsel’s
conduct fell within the wide range of reasonable assistance.12
In measuring prejudice, the relevant inquiry is whether
“there is a reasonable probability, that but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.
A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”13
“‘A
defendant is not guaranteed errorless counsel, or counsel
9
Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370,
88 L.Ed.2d 203 (1985); Roberson v. Commonwealth, Ky., 913 S.W.2d
310, 316 (1994).
10
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Bowling
v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert. denied,
527 U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778 (1999).
11
Harper, 978 S.W.2d at 315; Wilson v. Commonwealth, Ky.,
836 S.W.2d 872, 879 (1992), cert. denied, 507 U.S. 1034, 113
S.Ct. 1857, 123 L.Ed.2d 479 (1993); Russell v. Commonwealth, Ky.
App., 992 S.W.2d 871, 875 (1999).
12
Strickland, 478 U.S. at 689, 104 S.Ct. at 2065;
Bowling, 981 S.W.2d at 551.
13
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. See
also Moore v. Commonwealth, Ky., 983 S.W.2d 479, 488 (1998),
cert. denied, 528 U.S. 842, 120 S.Ct. 110, 143 L.Ed.2d 93 (1999).
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adjudged ineffective by hindsight, but counsel reasonably likely
to render and rendering reasonably effective assistance.’”14
Long is correct, of course, that trial counsel has a
duty to make “reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
15
“A reasonable investigation is not, however, the investigation
that the best defense lawyer, blessed not only with unlimited
time and resources but also with the inestimable benefit of
hindsight would conduct.”16
Long argues that counsel failed to investigate and
assert possible defenses to the assault charges based on selfprotection and the seriousness of the victims’ injuries.
A
review of the record, however, reveals that defense counsel was
well aware of the facts of the case and the possible defense of
self-protection.
At the sentencing hearing, counsel stated that
during the several weeks he engaged in plea negotiations with the
prosecutor, he utilized the ambiguity in the factual
circumstances of the case and a possible self-protection defense
to obtain the fairly lenient plea offer.
However, counsel also
recognized the weaknesses in the defense case.
For instance,
Long made false statements to the police during the initial
investigation in both incidents.
Also, several witnesses to the
second incident stated that Long was the initial aggressor.
14
Sanborn, 975 S.W.2d at 911 (quoting McQueen v.
Commonwealth. Ky., 949 S.W.2d 70, 71 (1997)).
15
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.
16
Baze, 23 S.W.3d at 625.
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Only
Long himself countered that assertion.
Even Long’s brother
stated that he saw Long searching his apartment for weapons just
prior to the altercation on the second occasion.
Furthermore,
when the police arrived at the scene of the second incident, Long
was pursuing several individuals with a knife threatening to kill
them.
With respect to the first incident, Sgt. Cole, the
arresting officer, described his reasons for charging Long with
assault in the first degree as follows:
Based on the injuries to Gunckle and Blevins
[the two victims], the fact that Blevins was
attacked from the back, the fact that neither
Blevins nor Gunckle were armed, the fact that
Long decided to attack rather than summon
police, and then lied to police, and the fact
that the neighbors heard a man yelling that
he would kill “John” (the name of one of the
victims), as well as other details outlined
in the report, a criminal complaint will be
signed charging Long as listed above.
A friend of Long’s told police that after the first incident,
Long stated he intended to kill Blevins and Gunckle.
While Long has repeatedly claimed that he acted in
self-defense, any trial based on that defense clearly was fraught
with problems.
Long’s actions were very violent and aggressive
on both occasions.
Had Long risked a trial and lost, he faced a
possible sentence of life imprisonment.
Given these factors, we
cannot say that defense counsel acted unreasonably in
recommending that Long accept the plea agreement rather than
proceed to trial.
The record refutes Long’s claim that more
investigation could have changed this result.
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Long’s contention that counsel did not adequately
investigate the seriousness of the victim’s injuries also lacks
merit.
He asserts that counsel failed to obtain medical records
that would have indicated that the victims did not sustain
“serious physical injuries.”
Under the assault statute, “serious
physical injury” is defined as
physical injury which creates a substantial
risk of death, or which causes serious and
prolonged disfigurement, prolonged impairment
of health, or prolonged loss or impairment of
the function of any bodily organ[.]17
Three of Long’s victims suffered deep puncture wounds--one of
them was stabbed in the throat and another in the back of the
neck near the spine.
The fourth victim suffered deep cuts above
and below his left eye.
Assuming that all of the victims
recovered, it is perhaps arguable that these injuries ought not
to be deemed “serious” for statutory purposes.
The argument is
not a strong one, however, for it seems equally plausible that
there was a genuine risk of death in each case.
In any event,
the record refutes the contention that counsel neglected this
argument or that Long was at all likely to risk trial and a
possible life sentence on the assertion that his violent attacks
had injured no one “seriously.”
In conclusion, Long has shown neither that defense
counsel rendered deficient performance outside the wide range of
professionally competent assistance nor that he was prejudiced by
counsel’s conduct in that there is a reasonable probability that
he would have insisted on going to trial rather than plead
17
KRS 500.080(15).
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guilty.
Counsel is entitled to a presumption of competence and
given the facts of this case, his evaluation of the risks of
conviction and greater punishment at trial were reasonable.
Finally, the trial court did not err in failing to conduct an
evidentiary hearing on the RCr 11.42 motion because the record
clearly refutes Long’s claim of ineffective assistance of
counsel.
For the foregoing reasons, we affirm the order of the
Campbell Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward Long, Pro Se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
J. Hamilton Thompson
Assistant Attorney General
Frankfort, Kentucky
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