Gary Mitchell Long v. Commonwealth of Kentucky

RENDERED: JUNE 17, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0004-MR
GARY MITCHELL LONG APPELLANT
APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 17-CR-00209
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Gary Long appeals the Marion Circuit Court’s December 16,
2020 order denying Appellant’s motion to vacate, set aside, or correct pursuant to
RCr1 11.42 alleging ineffective assistance of counsel. We affirm.
On September 8, 2017, Appellant struck Felicia Hazelwood and her
daughter with a crowbar. On July 26, 2018, on advice of counsel, Appellant
1
Kentucky Rules of Criminal Procedure.
pleaded guilty to two counts of second-degree assault. Accordingly, the circuit
court sentenced Appellant to seven years on count one and five years on count two,
to run concurrently. The circuit court probated the sentence for five years.
(Record (“R.”) at 72.)
On July 22, 2020, Appellant filed a motion pursuant to RCr 11.42
alleging ineffective assistance of counsel. Appellant alleges his counsel failed to
understand the facts of the case, did not properly communicate with or inform
Appellant of the consequences of pleading guilty, did not inform Appellant about
possible defenses to the charges, and only represented him to collect attorney fees.
Appellant claims the facts his counsel failed to understand are these.
The victim started the fight when she alleged Appellant blocked the road with his
vehicle. After investigating, Appellant’s counsel discovered he may have started
the incident by spouting racial slurs at the victim. Additionally, Appellant alleges
counsel confused whose car the victim alleged blocked the road. However, given
all counsel knew, she advised him to plead guilty.
The circuit court heard testimony from Appellant’s counsel, Dawn
McCauley. McCauley testified to having met with or having gone to court with
Appellant seventeen different times. She testified to scheduling review of body-
camera video once the video was made available through discovery. She discussed
self-defense as being the main defense to these charges. However, she expressed
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concerns as to the success of a self-defense claim because body-camera footage
contradicted Appellant’s account of what happened.2 McCauley also expressed to
Appellant that a jury may not be sympathetic to Appellant given the circumstances
and she believed, based on the victims’ reputations, that they could be easily
angered on the stand. McCauley testified to negotiating Appellant’s original
charges down and fought to have Appellant avoid jail time as she was concerned
about him going to prison for a lengthy term.
Based on the aforementioned evidence, the circuit court denied
Appellant’s motion. In denying Appellant’s RCr 11.42 motion, the circuit court
described McCauley’s services as “not only competent, but . . . exceptional.” (R.
at 123.)
This appeal followed.
We begin by noting no defendant is entitled to perfect counsel;
instead, every defendant is entitled to reasonably effective counsel. Fegley v.
Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). Additionally, “counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland v.
2
For example, Appellant’s claimed Felicia Hazelwood struck him and broke his glasses. After
this, Appellant picked up a crowbar and struck both Felicia Hazelwood and her daughter.
McCauley testified body-camera footage showed his glasses were not broken.
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Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984).
Thus, “[j]udicial scrutiny of counsel’s performance [is] highly deferential.” Id.When reviewing a RCr 11.42 claim for ineffective assistance of
counsel, this court applies the two-part test articulated by the United States
Supreme Court in Strickland v. Washington.3 Gall v. Commonwealth, 702 S.W.2d
37 (Ky. 1985). To satisfy this test, the defendant must first show counsel’s
performance was so deficient the defendant did not receive counsel as guaranteed
by the Sixth Amendment to the United States Constitution. Id. at 687; see also
Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002). Second, the defendant
must show counsel’s defective performance in some way prejudiced the defendant.
Id. To show prejudice, the defendant must show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. We also
note that we must make every effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S. Ct.
at 2065.
3
We note, according to Hill v. Lockhart, the test articulated in Strickland applies to ineffective
assistance of counsel claims concerning guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58-59, 106
S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).
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The circuit court heard sufficient testimony from McCauley, which
this Court reviewed, to justify the conclusion that counsel did discuss the full facts
and the panoply of laws at issue here. She discussed her professional opinion as to
the success of Appellant’s self-defense claim and the factual doubts she maintained
in the defense. Appellant cannot claim ineffective assistance of counsel merely
because he dislikes his counsel’s professional opinion. In the same vein, the circuit
court heard sufficient evidence as to the time McCauley spent with Appellant, the
communications McCauley had with Appellant, and the thoroughly thought-out
legal opinions McCauley maintained as to the objective possibilities of Appellant’s
case if it were to go to trial. With the presumption that McCauley’s performance
was effective in mind, Appellant raised nothing concerning these two points to
overcome the presumption her performance was effective.
Additionally, assuming McCauley truly misunderstood the facts
concerning how the altercation started4 and whose car blocked the road,
misunderstanding these specific facts does not rise to the level of deficient
performance under the Sixth Amendment to the United States Constitution, nor
would this error rise to the level of prejudice required under Strickland. The main
factual concern in (what would have been) Appellant’s self-defense claim was
4
Though again, we note there are several factual discrepancies between Appellant’s account, the
victim’s accounts, and the body-camera footage.
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whether the victim started the altercation and whether Appellant’s response was
appropriate. It does not matter who thought whose car was blocking the road.
McCauley clearly understood the possibility of a jury believing Appellant did not
act proportionately in response to the victim’s alleged attack. Appellant alleges
victim hit Appellant first, and Appellant responded by hitting the victims with a
crowbar. McCauley was wise to fear a jury may view Appellant’s response as
disproportionate – which would severely compromise his self-defense claim.
We conclude Appellant has not raised any issues showing
McCauley’s performance was ineffective or deficient. Because of this, Appellant
fails the first prong of Strickland’s test.
Accordingly, the Marion Circuit Court did not err when it denied
Appellant’s RCr 11.42 motion. For the foregoing reasons, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Elmer J. George Daniel Cameron
Lebanon, Kentucky Attorney General of Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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