Commonwealth of Kentucky v. Douglas Rank
2016 Ky. LEXIS 325
| Ky. | 2016Background
- Douglas Rank, a psychiatrist, stabbed his girlfriend four times with a sword; originally charged with attempted murder and later pleaded guilty to amended first-degree assault for a 15-year sentence.
- Rank hired attorney Robert Gettys (and consulted Patrick Hickey); Gettys obtained Rank’s power of attorney and retained Dr. Bobby Miller, a forensic neuro-psychiatrist, who evaluated Rank and testified at sentencing about schizotypal personality disorder.
- Prior to plea, Gettys moved for competency evaluation; court found Rank competent. The Commonwealth offered to recommend 15 years if Rank pled to amended first-degree assault; Rank accepted after a Boykin colloquy.
- Rank filed an RCr 11.42 motion alleging ineffective assistance of counsel (Strickland), chiefly that Gettys failed to investigate or advise him about an extreme emotional disturbance (EED) defense that could have reduced the charge/sentence.
- The trial court denied the motion without an evidentiary hearing; the Court of Appeals remanded for a hearing. The Supreme Court of Kentucky affirmed the remand, limiting the hearing to the EED-investigation/advice claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel failed to investigate/advice re: EED defense | Rank: Gettys did not discuss or investigate EED, so Rank could not make an informed plea and might have gone to trial | Commonwealth: Gettys retained Dr. Miller and pursued psychiatric evaluation; record shows EED would not have succeeded | Evidentiary hearing required — factual issues unresolved on the record regarding whether Gettys investigated/advised on EED |
| Conflict of interest from fee/power-of-attorney and Hickey’s role | Rank: Gettys/Hickey’s control of assets and prior relation to victim created a conflict that impaired representation | Commonwealth: Hickey’s prior civil representation was unrelated; no actual conflict affecting plea shown | No hearing required — record does not show an actual conflict affecting voluntariness |
| Failure to pursue discovery/depose victim/follow procedure/post bond | Rank: Gettys failed to file discovery motion, improperly moved to depose victim, advised against posting bond, and mishandled assets | Commonwealth: Discoverable materials were obtained; depositions occurred; Rank doesn’t show prejudice from procedural choices | No hearing required — record shows no prejudice or material factual dispute warranting hearing |
| Inadequate mitigation and misadvice about parole/probation | Rank: Counsel presented mitigation poorly and misadvised on probation/parole eligibility, inducing plea | Commonwealth: Trial court corrected any erroneous advice during plea colloquy; mitigation testimony was reasonable strategy | No hearing required — court’s plea colloquy corrected inaccuracies; mitigation strategy not shown deficient enough to require hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001) (applying Strickland to guilty-plea challenges and plea voluntariness)
- McClellan v. Commonwealth, 715 S.W.2d 464 (Ky. 1986) (definition and elements of extreme emotional disturbance)
- Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011) (when first-degree assault may be a lesser-included offense relative to attempted murder)
- Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001) (duty of counsel to investigate; reasonableness of investigation)
- Coffey v. Messer, 945 S.W.2d 944 (Ky. 1997) (EED can affect guilt classification)
- Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky. 2006) (court’s plea colloquy can cure erroneous advice by counsel)
- Mitchell v. Commonwealth, 323 S.W.3d 755 (Ky. App. 2010) (standard for conflict-of-interest claims in guilty-plea context)