ELBERT PHILLIP LONG v. COMMONWEALTH OF KENTUCKY; STEVE PENCE, JUSTICE SECRETARY, JUSTICE CABINET; JOHN REES, COMMISSIONER, DEPARTMENT OF CORRECTIONS; LANCE ORTHER, BRANCH MANAGER, OFFENDER RECORDS, DEPARTMENT OF CORRECTIONS; AND JAMES L. MORGAN, WARDEN, NORTHPOINT TRAINING CENTER
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RENDERED:
SEPTEMBER 22, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002065-MR
ELBERT PHILLIP LONG
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 02-CI-01676
COMMONWEALTH OF KENTUCKY; STEVE
PENCE, JUSTICE SECRETARY, JUSTICE
CABINET; JOHN REES, COMMISSIONER,
DEPARTMENT OF CORRECTIONS; LANCE
ORTHER, BRANCH MANAGER, OFFENDER
RECORDS, DEPARTMENT OF CORRECTIONS;
AND JAMES L. MORGAN, WARDEN,
NORTHPOINT TRAINING CENTER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE.
ABRAMSON, JUDGE:
In 1977, a Daviess County jury found Elbert
Long guilty of murder, in violation of KRS 507.020, and of
attempted rape in violation of KRS 510.040 and KRS 506.010.
1
The
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statues 21.580.
Daviess Circuit Court sentenced him, respectively, to life and
to five years in prison.
In Long v. Commonwealth, 559 S.W.2d
482 (Ky. 1977), our Supreme Court affirmed Long’s conviction and
sentence.
The Parole Board granted Long parole in 1986, but
apparently because he refused to participate in sex-offender
counseling, his parole was revoked and he was returned to prison
in 1988.
Since then Long has appeared before the Board three
times, but on each occasion was denied parole.
Following his
last appearance, in 1998, the Board ordered him to serve out his
life sentence.
Although the record does not include the reasons
for the Board’s denials, Long suggests that they resulted, at
least in part, from his continuing refusal of sex-offender
treatment.
In December 2002, Long filed a petition in the
Franklin Circuit Court seeking habeas corpus and declaratory
relief.
The petition comprised eighteen allegations of error.
Four of those allegations attacked Long’s judgment of conviction
on the ground of alleged defects in the jury’s verdict, while
the rest complained that because Long had served his five-year
sentence for attempted rape, the Department of Corrections
should remove the sex offense from his record, and the Parole
Board should cease to treat him as a sex offender.
The trial
court dismissed the habeas petition, and in an order entered May
8, 2003, this Court upheld that dismissal.
-2-
Long v.
Commonwealth, NO. 2003-CA-000118-MR (May 8, 2003).
Perhaps
thinking that that was the end of the matter, the Commonwealth
failed to respond to Long’s declaratory judgment petition, so in
May 2005, Long moved for a default or a summary judgment.
The
Commonwealth responded with a motion to dismiss, which the trial
court granted by orders entered June 2, 2005 and September 6,
2005.
Appealing from that dismissal, Long reiterates the claims
he made in the trial court and contends that the trial court
abused its discretion by denying his motion for default
judgment.
Convinced that Long is not entitled to the relief he
seeks, we affirm the trial court’s orders.
Initially we note, as the Commonwealth points out,
that CR 55.04 precludes default judgment against the
Commonwealth unless the claimant “establishes his claim or right
to relief by evidence satisfactory to the Court.”
Because
neither Long’s initial pleading nor his motion for judgment
clearly established a right to relief, the trial court did not
abuse its discretion by denying Long’s motion for a default
judgment and permitting the Commonwealth to respond, albeit
belatedly, to his claims.
Nor did the trial court err by dismissing Long’s first
four allegations of error, those alleging that his judgment is
void because it is based on defective verdicts.
Because these
allegations attack the Daviess Circuit Court’s 1977 judgment,
-3-
they should have been brought in a collateral proceeding before
that court.
The Franklin Circuit Court, as it correctly ruled,
was not authorized to address them.
are meritless.
The allegations, moreover,
Long is correct that he was entitled to verdicts
on both counts of his indictment that were consistent, clear,
and unambiguous, Beaty v. Commonwealth, 125 S.W.3d 196 (Ky.
2003), and that both verdicts in his case were defective.
The
murder verdict did not specify that the jury was finding him
guilty of murder, but only that it was finding him guilty under
instruction number one, where the facts constituting the
elements of murder were alleged.
And the attempted rape verdict
mistakenly omitted the word “attempted.”
Neither defect renders
its verdict infirm, however, because the indictment; the jury
instructions; and, with respect to the attempted rape verdict,
the sentence make absolutely clear what crimes the jury found.
A verdict that the rest of the record makes clear and
unambiguous is sufficient.
287 S.W. 23 (1926).
Crump v. Commonwealth, 215 Ky. 827,
If Long had objected before the jury was
dismissed, he could have had the defects corrected.
Commonwealth, supra.
Beaty v.
But at this late date they do not
otherwise entitle him to relief from his judgment.
As noted above, the rest of Long’s allegations of
error are all variations on a single theme, i.e., because he has
long since served his five-year sentence for attempted rape, he
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should no longer be subjected to the sex-offender consequences
of that conviction.
Although Long has not clearly specified how
that conviction continues to prejudice him, he suggests that the
principal burden is the Parole Board’s continuing insistence
that he undergo sex-offender counseling.
recently answered Long’s complaint.
Our Supreme Court
In Stewart v. Commonwealth,
153 S.W.3d 789 (Ky. 2005), the Court held that the Parole Board
did not abuse its discretion by requiring an inmate serving a
sentence for two offenses, one a sex offense and one not, to
participate in sex-offender counseling even after the inmate had
served the sex-offense portion of the sentence:
Utilization of the Sex Offender Treatment
Program by the Parole Board is one of the
options available to the Board in
determining the conditions of parole. The
pertinent information required by the
statute is not limited to the individual
facts of a particular crime, but rather
encompasses matters that are relevant to the
question of a determination that parole
would be in the best interests of society.
The Sexual Offender Treatment Program is
required for sex offenders, but that does
not mean that it cannot be a condition of
parole for other offenders on a case-by-case
basis.
Stewart v. Commonwealth, 153 S.W.3d at 793-94.
The Department
of Corrections did not violate Long’s rights, therefore, by
refusing to remove the attempted rape conviction from his
record, and the Parole Board did not violate his rights by
conditioning parole on his participation in sex-offender
-5-
therapy, even after service of his sex-offense sentence.
The
Board’s serve-out decision, furthermore, did not convert Long’s
sentence to life without parole.
Long was accorded the
opportunity to be heard by the Board, and the Board retains the
authority to revisit the serve-out order if it wishes.
Because
Long is thus not entitled to relief even if the factual
allegations of his complaint are true, the trial court did not
err by ordering that the complaint be dismissed.
CR 12.02; Wood
v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002) (citing
Pari-Mutual Clerks’ Union v. Kentucky Jockey Club, 551 S.W.2d
801 (Ky. 1977)).
Accordingly, we affirm the June 2, 2005, and September
6, 2005, orders of the Franklin Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elbert Phillip Long, pro se
Burgin, Kentucky
Elizabeth A. Heilman
Assistant General Counsel
Justice & Public Safety Cabinet
Department of Corrections
Frankfort, Kentucky
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