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Commonwealth of Kentucky Court of Appeals
NO. 2002-CA-002458-MR

GLEN FRANKLIN MURPHEY1

APPELLANT

v.

APPEAL FROM HOPKINS CIRCUIT COURT HONORABLE CHARLES W. BOTELER, JR., JUDGE ACTION NO. 91-CR-00087-002

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** ** ** ** BEFORE: JOHNSON, KNOPF, AND McANULTY, JUDGES. JOHNSON, JUDGE: Glen Franklin Murphey had appealed from an

order of the Hopkins Circuit Court entered on October 29, 2002, that denied his petition for post-conviction relief pursuant to RCr2 11.42, challenging his guilty plea to murder,3 robbery in

1

In the notice of appeal, the appellant's name appears as "Glenn Franklin Murphy," but it is this Court's understanding that the correct spelling is "Glen Franklin Murphey." Kentucky Rules of Criminal Procedure. Kentucky Revised Statutes (KRS) 507.020.

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the first degree,4 and burglary in the first degree.5

Having

concluded that the trial court properly determined that Murphey received effective assistance of trial counsel during the proceedings which resulted in his guilty plea, we affirm. The trial transcript of Murphey's co-defendant, Tina Perkins, discloses that on May 5, 1991, Murphey and Perkins went to the home of Lester Goodridge for the purpose of robbing and killing him. After arriving at the home, Murphey hid and waited When Goodridge came out,

for Perkins to draw Goodridge outside.

Murphey stabbed him with a large butcher knife, killing him. After killing Goodridge, Perkins and Murphey went into the house and stole $500.00 in cash. Murphey's blood-soaked Murphey and

clothes were later discovered in a nearby dumpster.

Perkins quickly spent the stolen money on cocaine and then fled to Atlanta, Georgia. Local police eventually linked Perkins to Perkins was During

Goodridge and an arrest warrant was issued.

detained in Georgia and questioned by the police.

questioning, Perkins initially denied any role in the murder, robbery and burglary, but later changed her story and confessed. When Murphey learned that Perkins had been taken into custody, Murphey voluntarily turned himself in to the police. Murphey confessed and accepted responsibility for killing

4

KRS 515.020. KRS 511.020.

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Goodridge.

Murphey and Perkins were returned to Kentucky and

both subsequently gave taped confessions admitting to the planning and execution of the murder and robbery of Goodridge. On June 5, 1991, Murphey was indicted for murder, robbery in the first degree, and burglary in the first degree. On October 8, 1992, the Commonwealth filed a notice of its intent to introduce evidence of an aggravating circumstance at the trial, which could have led to the imposition of the death penalty against Murphey.6 On October 16, 1992, Murphey and the Commonwealth entered into a plea agreement under which Murphey would agree to plead guilty to murder, robbery in the first degree, and burglary in the first degree. In return the Commonwealth would

recommend a sentence of life without parole for 25 years on the murder conviction, and ten years each on the robbery and burglary convictions. On November 19, 1992, the trial court

entered final judgment and sentence in accordance with the plea agreement. On March 25, 1996, Murphey filed a motion to vacate his sentence pursuant to RCr 11.42. The trial court initially

appointed the Madisonville Department of Public Advocacy as counsel to represent Murphey in the RCr 11.42 proceedings. However, as the allegation of ineffective assistance involved a
6

See KRS 532.025. The prosecutor had also orally notified defense counsel that if Murphey went to trial he would seek the death penalty.

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former high-ranking DPA attorney from the area, private attorney Christopher N. Lash was later substituted as appointed postconviction counsel. In June 1999 Murphey's trial counsel, Joel Robinson "Rob" Embry, was indicted on charges of murder,7 possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Embry subsequently pled guilty to the charge of Based upon these

manslaughter and to the drug offenses.

developments, Murphey supplemented his RCr 11.42 motion to allege ineffective assistance of counsel on the basis that Embry was abusing drugs during the period he was representing Murphey. The primary focus of Murphey's claim for post-conviction relief thereafter became whether his abuse of drugs resulted in his ineffective representation of Murphey. On March 15, 19, and 28, 2002, an evidentiary hearing was held on Murphey's RCr 11.42 motion. On October 29, 2002,

the trial court entered an order denying Murphey's motion for post-conviction relief. This appeal followed.

First,8 Murphey contends that the trial court erred in finding that Embry's assistance was constitutionally adequate.
7

On February 7, 1999, Embry's mother was admitted to the hospital with a body temperature of 85 degrees suffering from dehydration, emaciation, multiple sores, abrasions, and contusions. Embry was initially charged with criminal abuse; however, following the mother's death on February 12, 1999, the charge was upgraded to murder. To facilitate continuity, the issues are discussed in a different order than presented by Murphey in his brief.

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The two-pronged test for ineffective assistance of counsel is (1) whether counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense.9 In analyzing trial counsel's performance, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [.]"10 Where an appellant challenges a guilty plea based on ineffective assistance of counsel, he must show both that counsel made serious errors outside the wide range of professionally competent assistance,11 and 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 pled guilty, but would have insisted on going to trial.12 In summary, Murphey alleges that he received ineffective assistance because trial counsel had a serious drug abuse problem during his period of representation of the
9

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Strickland, 466 U.S. at 689.

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McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

12

Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726, 727

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