Elbert Phillip Long v. Commonwealth of Kentucky ( 2023 )

RENDERED: SEPTEMBER 29, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1078-MR
ELBERT PHILLIP LONG APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE LISA P. JONES, JUDGE
ACTION NO. 76-CR-18196
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.
EASTON, JUDGE: The Appellant (“Long”) seeks review of the circuit court’s
Order denying his latest post-conviction motion. We affirm.
In 1976, Long attempted to rape Connie White. Long then murdered
White’s father William Damron, Jr. A jury convicted Long of murder and
attempted rape and sentenced him to life imprisonment for murder and five years
for attempted rape. The Kentucky Supreme Court affirmed this conviction over
forty-five years ago. Long v. Commonwealth, 559 S.W.2d 482 (Ky. 1977).
Since then, Long has filed well over a dozen post-conviction
proceedings.1 Long’s appeal just prior to the present one was partially successful
in that this Court directed a correction of Long’s sentence in the original Judgment
to run his five-year sentence concurrent with his life sentence.2 Now Long argues
he was entitled to a new sentencing proceeding and that the withdrawal of his
appointed counsel from this appeal violated his rights.
It is well-established that post-conviction motions are limited to
claims which were not or could not have been made in prior such proceedings.
McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1977). For this reason, we will
not readdress the arguments Long makes again about his case. The appeal is
limited to review of the decision of the circuit court to correct the sentence as
directed by this Court and the related question of his right to counsel for this
appeal.
Kentucky Revised Statute (“KRS”) 31.110(2)(c) provides a statutory
right to be represented in post-conviction matters, provided the appointed attorney
believes the matter has enough merit to justify a person to hire private counsel.
This is consistent with the law in that there is no automatic right to counsel beyond
1
Not to belabor this Opinion, we will not repeat the listing of most of these efforts, which
appears in our Opinion Affirming in Long v. White, No. 2018-CA-001485-MR, 2019 WL
1092656 (Ky. App. Mar. 8, 2019).
2
This was explained in Footnote 5 of our Opinion Reversing and Remanding in Long v.
Commonwealth, No. 2021-CA-0977-MR, 2022 WL 2183250 (Ky. App. Jun. 17, 2022).
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a direct appeal. Stamps v. Commonwealth, 672 S.W.2d 336 (Ky. 1984). There
was no error in allowing the withdrawal of the attorney with the Department of
Public Advocacy in this case because there was no merit to this appeal.
The original sentence of life with a consecutive five years was
erroneous. As we explained in the most recent appeal, no sentence may be
consecutive to a life sentence. Yet Long’s sentence was effectively corrected
without an amendment of the original Judgment as we recognized in our last
appeal.
The concurrent nature of the sentences was recognized by this Court
over twenty years ago, and documentation from the Department of Corrections
recognized this as well. Long was granted parole once, only to violate it and return
to prison with an eventual parole decision of a serve out of the life sentence.
Contrary to Long’s argument, he has not served forty-six years on a five-year
sentence. While Long has obviously served more than five years, this did not
eliminate the consequences of his conviction of a sexual offense in terms of
conditions of any release on parole based on concurrent sentences or the natural
consequences of a concurrent life sentence.
Long was entitled only to a correction of the sentence in the original
Judgment. See Johnson v. Commonwealth, 450 S.W.3d 707 (Ky. 2014). Long was
not entitled to generally revisit his sentence. The circuit court correctly followed
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this Court’s directive to formalize the correction of the sentence which had already
been recognized over twenty years ago. The Order of the Daviess Circuit Court is
AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Elbert Phillip Long, pro se Daniel Cameron
Wheelwright, Kentucky Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky
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