Douglas Rank v. Commonwealth of Kentucky ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1491-MR
DOUGLAS RANK APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE JULIE REINHARDT WARD, SPECIAL JUDGE
ACTION NO. 10-CR-00186
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
DIXON, JUDGE: Douglas Rank appeals pro se from an order of the Kenton
Circuit Court, entered February 11, 2020, denying his RCr1 11.42 motion. After
careful review of the briefs, record, and law, we affirm.
1
Kentucky Rules of Criminal Procedure.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On February 21, 2010, Rank, then a practicing psychiatrist, stabbed
his client and paramour, Misty Luke, with a sword. Thereafter, Rank was charged
with attempted murder and retained Robert Gettys to represent him. In October
2010, Rank pled guilty to assault first degree on the Commonwealth’s
recommendation of a 15-year sentence but with the opportunity to argue for the
minimum of 10 years. To establish the factual predicate supporting the plea, the
Commonwealth noted that Luke’s injuries − a collapsed lung and damage to her
internal organs from a stab wound to her abdomen − required surgery and an
extended hospitalization, and caused lingering mental and physical impairments.
Dr. Miller, a private forensic psychologist retained by Gettys, testified
in mitigation at Rank’s sentencing hearing in December 2010. Therein, Dr. Miller
stated that after interviewing Rank for three-and-a-half hours, as well as reviewing
the presentence investigation, the KCPC2 report determining that Rank was
competent, and Luke’s deposition and victim impact statement, he diagnosed Rank
with Schizotypal Personality Disorder − a treatable medical condition. Dr. Miller
opined that Rank would be at an advantage for treatment because he was
intelligent, introspective, and knowledgeable of the psychotherapy process, and
2
Kentucky Correctional Psychiatric Center.
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that successful treatment would reduce the risk to society. Unpersuaded, the court
then imposed the recommended 15-year sentence.
In December 2011, Rank filed an RCr 11.42 motion alleging various
instances of ineffective assistance of counsel. The court denied the motion but was
reversed in part on appeal. Commonwealth v. Rank, 494 S.W.3d 476 (Ky. 2016).
On remand, in accordance with Rank, an evidentiary hearing was held to ascertain
(1) the reasonableness of Gettys’ investigation into the viability of an extreme
emotional distress (EED)3 defense, and (2) whether Gettys advised Rank as to the
merits of pursuing an EED defense at trial as opposed to entering the plea.
At the hearing, Rank called Doug Hamilton, Larry Hamilton, and
Larry Hamilton, Jr. (collectively “the Hamiltons”) to give their accounts of the
night of the attack. They testified that while they were watching television on the
3
In McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986), EED was defined as:
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 [EED] 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
[EED] 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.
Additionally, Kentucky courts have long held that the defense requires proof that the EED was
caused by a sudden and uninterrupted triggering event. See, e.g., Holland v. Commonwealth,
114 S.W.3d 792, 807 (Ky. 2003); Fields v. Commonwealth, 44 S.W.3d 355, 359 (Ky. 2001).
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second floor of their building, they heard screaming from the third floor where
Rank resided. On the third floor, Doug and Larry, Jr., found Rank physically
struggling with Luke, yelling that he was going to kill her, striking at her with a
sword, and threatening Doug when he attempted to intercede. Doug was able to
distract Rank by throwing a book in his face, ultimately disarming him and
removing Luke from the room. Rank remained agitated, struggled with Doug and
Larry, and expressed his desire to retrieve his gun in order to commit “suicide by
cop.” The Hamiltons assert that Rank’s behavior was out of character generally,
and specifically, Doug stated that Rank had been calm and collected earlier in the
evening. The Hamiltons denied that anyone from Rank’s defense team ever
discussed the attack with them.
Rank testified that his relationship with Luke had been tense in the
time preceding the attack and the two fought frequently about, among other issues,
whether she had relapsed. On the day prior to the attack, Luke was with her sister,
with whom Rank suspected she had relapsed; she did not come to bed, and she was
not there in the morning. On the day of the attack, Rank returned to the building
and, after briefly stopping on the second floor to speak with the Hamiltons, saw
Luke on the third floor. Not wanting to fight, Rank went to a side room where he
kept the sword. After a terse phone conversation with Luke, Luke texted Rank
saying she was leaving him and ending the relationship. Rank testified that ten
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seconds later, agitated and enraged, he grabbed the sword for an unknown purpose,
went into their room, and saw himself stabbing Luke.
Rank claimed that neither Gettys nor Patrick Hickey, who assisted
Gettys, ever inquired about the attack or explained to him what EED was, the
merits of an EED defense, what investigation had been conducted, or what his
defense would be at trial, though he admits Gettys investigated both insanity and
involuntary intoxication defenses. Rank admitted that he never attempted to recall
what occurred during the attack until after his RCr 11.42 motion was denied in
May 2012, explaining that no one, including Gettys or Dr. Miller, ever inquired.
He stated that after his motion was denied, a legal aide began to teach him about
EED, and he was compelled to remember in order to write the statement of facts.
Rank admits his memory of the night is not as clear as the memories he makes
now, citing the fact he did not have the Hamiltons’ statements until 2015, but
specifically denies that he ever claimed to have no memory of the attack.
Dr. Miller testified that during his March 2010 forensic interview of
Rank, Rank denied having any memory of the attack or the circumstances
preceding. He also stated that, being familiar with Kentucky EED law, he had
considered the defense during his evaluation of Rank but that he could not report it
within reasonable medical certainty. Dr. Miller conceded that his file contains no
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notations regarding EED, that he did not perform any collateral interviews with the
Hamiltons or Luke, and he did not review the Hamiltons’ interviews with police.
Dr. Edward Connor, a licensed clinical psychologist, testified that
following his evaluation of Rank in September 2017, he considered EED a possible
defense. He elaborated that he had identified a triggering event – Luke’s text
message saying “Thank you for the experience” – which Rank interpreted as
terminating their relationship, and Rank’s emotional pre-disposition to overreact
due to his fear of loneliness, his history of depression and paranoia, and his alcohol
and substance abuse. Dr. Connor’s determination was guided by: statements made
by Luke during a deposition for a civil action that she wanted to protect Rank from
people attempting to take advantage of him, that Rank attacked her ten seconds
after she sent the above referenced text, and that during the attack Rank’s voice
was strange and she did not know him; Rank’s statements during Dr. Connor’s
evaluation that he came unglued after reading her text and he saw himself stabbing
her; and the Hamiltons’ statements that Rank wanted to go out in a blaze of glory.
Dr. Connor asserted that he would not have been able to formulate an
opinion on EED without seeing the interviews or depositions of collateral sources,
but he conceded to do so was not outside the realm of professional practice. Dr.
Connor acknowledged that his evaluation benefited from several sources that were
not available to Dr. Miller, including Luke’s civil action deposition, and as a result,
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Rank’s EED defense may have improved with time. Finally, Dr. Connor conceded
that the matter was complicated by the fact Rank, a trained psychiatrist, had several
years to familiarize himself with EED.
Gettys affirmed that he was familiar with EED and was aware that it
was a potential defense. His reported investigation included reviewing the
statements of the Hamiltons and Luke to police, as well as the media coverage of
the event; communicating with the Hamiltons, Luke’s sister, Rank’s ex-wife,
numerous people in the area of Rank’s home and psychiatric practice, and Luke,
through Hickey; obtaining a copy of the Kentucky Board of Medical Licensure’s
investigation into allegations against Rank; retaining Dr. Miller with whom he
discussed EED in terms of uncontrollable urges and temporary insanity; and
discussing with Hickey whether to pursue an EED defense at trial.
Gettys stated that Rank denied having any memory of the relevant
events, refused to answer his questions, and was physically intimidating when
pressed for information. Through his investigation of other sources, Gettys learned
that eight weeks preceding the attack with the sword, Rank, angry that Luke had
been with her sister, threw what he erroneously led her to believe was boiling
water in her face, deeply frightening her. Two weeks later, Rank struck Luke
behind the ear with a mallet, which resulted in her seeking medical treatment.
Gettys also learned that Rank’s ex-wife claimed that he had tried to stab her with
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scissors, and a former patient of his, with whom Rank had a sexual relationship
resulting in his license being suspended, alleged Rank had harassed her after she
tried to terminate their relationship. Gettys was concerned that pursuing an EED
defense would permit introduction of these incidents as impeachment evidence.
Additionally, there were allegations that Rank was improperly supplying narcotic
drugs to Luke, as well as others in the community.
Citing these issues, as well as the lack of a triggering event, the fact
EED was not supported by Dr. Miller’s opinion, the viciousness of the attack, and
his assessment that Rank – whom he described as difficult, antisocial, aloof, and
smug – would not be well received by a jury, Gettys concluded an EED defense
would not be successful, Rank would likely receive the maximum penalty, and the
plea afforded Rank the best outcome. Gettys stated he discussed EED with Rank.
However, he admitted that beyond an email from Hickey inquiring about including
EED in proposed jury instructions, nothing in his file referenced EED, and he did
not specifically request Dr. Miller to evaluate for EED.
After hearing the evidence, the court denied the motion, and this
appeal followed. Additional facts will be presented as they become relevant.
STANDARD OF REVIEW
Since Rank entered a guilty plea, in order to successfully demonstrate
that he was afforded ineffective assistance of counsel, he must show:
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(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the
plea process that, but for the errors of counsel, there is a
reasonable probability that the defendant would not have
pleaded guilty, but would have insisted on going to trial.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “‘The
likelihood of a different result must be substantial, not just conceivable.’”
Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington
v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)).
“[B]oth parts of the Strickland test for ineffective assistance of
counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253
S.W.3d 490, 500 (Ky. 2008) (citing McQueen v. Commonwealth, 721 S.W.2d 694,
698 (Ky. 1986)). Unless clearly erroneous, we “must defer to the determination of
facts and credibility made by the trial court.” Id. We review de novo “counsel’s
performance and any potential deficiency caused by counsel’s performance.” Id.ANALYSIS
As an initial matter, we must address two overarching issues
regarding Rank’s brief. First, dissatisfied with the court’s findings of fact, Rank
repeatedly requests this Court to render its own findings de novo. Because factual
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findings, including weight and credibility determinations, are solely the province
of the trial court, we decline Rank’s request. Lewis v. Bledsoe Surface Mining Co.,
798 S.W.2d 459 (Ky. 1990).
Second, in an attempt to circumvent the page limits established by
CR4 76.12(4)(b)(i), Rank’s brief at various points merely refers this Court to
pleadings he filed with the circuit court for the bases of his arguments and the
supporting citations. This practice does not comport with the requirements of CR
76.12(4)(c)(v) to include an argument in the brief “with ample supportive
references to the record and citations of authority pertinent to each issue of law.”5
Rank’s pro se status does not exempt him from the rules of appellate procedure.
Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). When a party fails to
abide by the rules of civil procedure, we are permitted to ignore the deficiency,
strike the brief in whole or part, or review the issues raised for manifest injustice.
CR 76.12(8). In this matter, we have opted to confine our review solely to the
points actually raised in the brief.
4
Kentucky Rules of Civil Procedure.
5
We find no meaningful distinction between Rank arguing via adoption by reference to prior
pleadings and the sanctionable conduct of counsel raising arguments contained solely in a
supplemental appendix discussed in Hogg v. Commonwealth, 848 S.W.2d 449 (Ky. App. 1992).
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Gettys’ EED Investigation
Rank raises various challenges to the court’s determination that
Gettys’ investigation was reasonable. We will address these in turn.
First, Rank argues the court failed to apply the correct standard,
“reasonably substantial investigation,” and cites Strickland, 466 U.S. at 680, 104 S.
Ct. at 2061, in support. Misconstruing the law, Rank is incorrect. In Strickland,
the Supreme Court rejected the lower court’s pronouncement of the reasonably
substantial investigation standard and held that “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing professional norms”
and “considering all the circumstances.” Id. at 688, 104 S. Ct. at 2065; accord
Bronk, 58 S.W.3d at 486-87. In the context of investigation, the Court specifically
held that “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691, 104 S. Ct. at 2066. As this is the standard the court utilized, we
find no error.
Second, since Rank established that Gettys failed to specifically
request that Dr. Miller evaluate him for EED, did not discuss EED with Dr. Miller,
and did not provide Dr. Miller with the Hamiltons’ statements to police, Rank
asserts the court’s determination is clearly erroneous. We conclude the court did
not err in denying relief because Rank has failed to establish prejudice.
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Relevantly, the court found that Dr. Miller’s evaluation included
consideration of EED; that Gettys discussed the defense with Dr. Miller, albeit not
by name; and, regardless, Dr. Miller concluded Rank’s actions were not the result
of EED. These findings are supported by ample evidence, and thus, we conclude
that any deficiency was harmless. As for providing Dr. Miller the Hamiltons’
statements, Rank has failed to demonstrate how this prejudiced his defense when
the statements provide no insight into the purported triggering event.6 Therefore,
we find no error.
Third, Rank claims the court’s determination is clearly erroneous
given that he proved Gettys failed to learn of relevant facts. In evaluating the
reasonableness of counsel’s actions, we must consider counsel’s perspective at the
relevant time, making every effort to eliminate the distorting effects of hindsight,
and “indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance[.]” Id. at 689, 104 S. Ct. at 2065;
accord Brown, 253 S.W.3d at 498-99. We will address Rank’s specific
contentions in turn.
Rank argues Gettys was deficient in failing to learn specifically of a
text message from Luke which Rank asserts was the triggering event for the attack.
6
Dr. Connor testified that the Hamiltons’ statements were relevant in establishing the
authenticity of what he determined to be a possible EED defense but that he relied on evidence
from Rank and Luke to identify the triggering event.
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Rank, citing the Commonwealth’s statements during sentencing, maintains Gettys
should have learned of the text message through discovery; however, his claim is
not supported by the record since the Commonwealth did not reference the text
exchange. Additionally, Rank’s allegation that Gettys should have gathered this
information by questioning him is refuted by the court’s findings, which contrary
to Rank’s declaration otherwise, are supported by substantial evidence that Gettys
and Dr. Miller inquired as to the events of the attack and Rank denied having any
memory. Finally, given that Luke did not disclose the text exchange during
Gettys’ deposition of her, Rank contends that the deposition was inherently infirm.
We are unable to evaluate the merits of this claim, however, because Rank failed to
introduce the deposition or any relevant evidence. Accordingly, Rank has failed to
demonstrate that Gettys’ failure to learn of the text was the result of an
unreasonable investigation, and we find no error.
Next, citing Anderson v. City of Bessemer City, 470 U.S. 564, 575,
105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985), Rank challenges the court’s
finding that Gettys interviewed the Hamiltons about the case. In Anderson, the
Court stated that a finding based on a determination of credibility is not immune to
reversal if the finding is refuted by documentary or objective evidence or is “so
internally inconsistent or implausible on its face that a reasonable factfinder would
not credit it.” Id. However, a court’s decision to credit the coherent, facially
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plausible story of one witness over another can virtually never be clear error. Id.;
See also Potts v. Commonwealth, 172 S.W.3d 345, 349-51 (Ky. 2005). Here,
Gettys’ testimony supports the court’s finding, and the sole contradictory evidence
– the testimony of the Hamiltons, who are self-proclaimed friends of Rank – is not
of the caliber delineated in Anderson and Potts to undermine the court’s inherent
authority to decide credibility. Hence, we find no error.
Rank further asserts Gettys was deficient in not obtaining the
Hamiltons’ statements to police prior to discovery in June 2010 and failing to
specifically ask them about Rank’s perceived state of mind in order to ascertain
that he was out of control and enraged. We are unable to conceive how the former
prejudiced Rank. Likewise, though Gettys stated he could not recall if he asked
the Hamiltons that exact question, we are unable to find harm when Gettys stated
that he inferred from speaking with them that Rank was out of control and enraged.
Lastly on the issue of investigation, Rank argues Gettys was deficient
for failing to know that Larry Hamilton had estimated in his police interview that
the attack occurred 15 minutes after Rank’s brief, unextraordinary visit.7 Rank
contends this knowledge was critical to his EED defense as it demonstrates the
sudden onset of the rage which precipitated the attack. For the reasons we will
7
At the evidentiary hearing, Doug Hamilton estimated two hours elapsed between seeing Rank
and the attack, and Larry Hamilton estimated one hour.
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detail in our analysis of Gettys’ plea advice, we conclude that even if this lack of
memory a decade after the fact supports a finding of deficiency, Rank has failed to
establish that but for this oversight, he would have elected to go to trial.
Gettys’ Plea Advice
We turn now to Rank’s claims pertaining to the court’s finding that
Gettys was not deficient in rendering plea advice.
First, Rank asserts that the court’s finding that Gettys advised him as
to EED was not supported by any evidence and repeats his denial that he was
aware of the defense. We disagree, however, since Gettys testified specifically that
he did discuss EED with Rank.
Finally, Rank essentially argues that Gettys’ plea advice was deficient
because he did not comprehend the legal requirements for EED. A guilty plea
cannot be attacked on the basis of deficient legal advice unless the advice was not
“‘within the range of competence demanded of attorneys in criminal cases[.]’”
Commonwealth v. Tigue, 459 S.W.3d 372, 391 (Ky. 2015) (quoting McMann v.
Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970)).
We note that Gettys accurately identified the legal standard for EED and the
potential range of punishment Rank faced. Further, as detailed above, at the time
of the plea, the viability of an EED defense was impeded by the lack of evidence of
a triggering event. Gettys testified that his recommendation to accept the plea to a
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sentence five years less than the maximum with the opportunity for ten years less
was based on his reasoned evaluation of the weakness of an EED defense, the
viciousness of the attack, the potential for detrimental impeachment evidence, and
his assessment that a jury would not be receptive to Rank. Under the
circumstances, we conclude that Gettys’ advice was not unreasonable, and
consequently, the court did not err in denying relief.
CONCLUSION
Therefore, and for the foregoing reasons, we affirm the order of the
Kenton Circuit Court denying Rank’s RCr. 11.42 motion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Douglas Rank, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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