Elbert Phillip Long v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: September 28, 2023
• Docket: 2022 CA 001078
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 29, 2023; 10:00 A.M. NOT TO BE PUBLISHED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).

-2- 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

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

-3- 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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