                                                    RENDERED: AUGUST 25, 2016
                                                            TO PL E

                  *Inttnt Court of ( firtt
                                  2014-SC-000266-DG


  COMMONWEALTH OF KENTUCKY
                                                             DATEW/44 lebt; aecovt DC
                                                                          APPELLANT


                      ON REVIEW FROM COURT OF APPEALS
  V.                     CASE NO. 2012-CA-001037-MR
                     KENTON CIRCUIT COURT NO. 10-CR-00186


  DOUGLAS RANK                                                            APPELLEE



                 OPINION OF THE COURT BY JUSTICE VENTERS

                                     AFFIRMING


       The Commonwealth appeals from an opinion of the Court of Appeals

 which remanded this case to the Kenton Circuit Court for an evidentiary

 hearing on Appellee Douglas Rank's RCr 11.42 motion. Based upon a guilty

plea, Rank was convicted of first degree assault for which 'he was serving a

fifteen-year prison sentence when he moved pursuant to RCr 11.42 to vacate

his conviction. Rank's motion included a request for an evidentiary hearing to

establish that his guilty plea was not made knowingly, intelligently and

voluntary and was, instead, the result of ineffective assistance of his trial

counsel, Robert P. Gettys, and to lesser degree, attorney Pat Hickey.

       The circuit court denied Rank's motion without an evidentiary hearing.

Rank appealed, and the Court of Appeals concluded that he had raised issues

of fact that required an evidentiary hearing and remanded the case for an
evidentiary hearing. We granted the Commonwealth's motion for discretionary

review. For reasons stated below, we affirm the Court of Appeals.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
       Rank advances several theories to support the claim that he was denied

the effective assistance of trial counsel in connection with this guilty plea. His

primary claim is that Gettys failed to advise him about the possibility of a

defense based upon the legal theory of "extreme emotional disturbance" (EED),

which if successfully asserted could have resulted in a lesser offense, and

correspondingly, a lesser sentence. Rank complains that Gettys never explored

the viability of an EED defense. Rank also asserts that Gettys was ineffective

as a result of several ethical violations, including an attorney's fee and lien

agreement that created a personal conflict of interest affecting his

representation of Rank. For a proper perspective of Rank's claims, we first

review the circumstances of his conviction.

      Rank was a practicing psychiatrist who developed a romantic

relationship with a former patient named Misty Luke, who would become the

victim of his assault. The couple lived together at Rank's residence located in

the same building as his professional office. After a heated argument with

Rank, and apparently believing that he had left the building, Luke texted a

message to Rank telling him that she was ending their relationship and

leaving. Rank, still on the premises, reacted immediately by returning with a




                                         2
 sword and attacking Luke.' He stabbed her four times. Other residents in the

 building heard the commotion and intervened. They overpowered Rank, took

 the sword, and removed Luke from the scene.

       Rank was arrested; his bail was set at $50,000.00 cash. Through the

advice of an attorney-friend, Patrick Hickey, Rank hired Gettys for his criminal

defense. Rank claims that Gettys and Hickey advised him not to post bond.

Gettys obtained Rank's power-of-attorney so that he would have control over

Rank's assets, ostensibly to protect them from a possible civil suit by Luke.

       A few weeks later, Rank was indicted and charged with attempted

murder, a Class B felony carrying a possible sentence of ten to twenty years'

imprisonment. Gettys moved for a psychiatric evaluation to determine if Rank

was competent to stand trial. The trial court ordered the Kentucky

Correctional Psychiatric Center (KCPC) to examine Rank and report upon his

competence. After an evidentiary hearing on the issue, the trial court

concluded that Rank was competent.

       In the meantime, Gettys had secured the services of Dr. , Bobby Miller, a

board-certified forensic neuro-psychiatrist, to interview Rank and advise Gettys

with respect to Rank's mental condition. Eventually, Dr. Miller would testify at

the sentencing hearing that he determined that, although Rank was not

insane, he suffered from schizotypal personality disorder. Gettys served notice

pursuant to RCr 7.24(3)(B)(i) that Rank would present expert testimony at trial



1 The sword was apparently a Civil War relic that was part of a collection belonging to

another resident of the building.

                                            3
    to show that Rank suffered from a mental disease or defect, or other mental

    condition relevant to the issue of guilt or punishment. 2 Gettys also moved the

    court for permission to obtain a pretrial deposition of Luke on the grounds that

    to properly evaluate Rank and formulate an opinion for use at trial, Dr. Miller

    needed information from Luke.

          At that point in the pretrial process, the Commonwealth extended a

    written plea offer, agreeing to recommend a sentence of 15 years' imprisonment

if Rank would plead guilty to an amended charge of first degree assault. 3 On

Gettys' advice, Rank accepted the offer. His plea was entered in open court

following the typical Boykin 4 colloquy during which he acknowledged that he




2 In 2010, RCr 7.24(3)(B)(i) provided in part: "If a defendant intends to introduce
expert testimony relating to a mental disease or defect or any other mental condition
of the defendant bearing upon the issue of his or her guilt or punishment, the defendant
shall, at least 20 days prior to trial, or at such other time as the court may direct upon
reasonable notice to the parties, notify the attorney for the Commonwealth in writing
of such intention and file a copy of such notice with the clerk." As filed, the notice
does not indicate specifically whether expert testimony is intended to be introduced for
guilt or punishment. Today, however, a notice to introduce expert testimony on
mental issues must contain the purpose of the testimony. Effective January 1, 2013,
RCr 8.07(2)(A) provides in part: "A defendant who intends to introduce expert evidence
relating to a mental disease or defect or any other mental condition of the defendant
bearing on (i) the issue of guilt; (ii) the issue of punishment; or (iii) the issue of guilt
and the issue of punishment; shall, not less than ninety (90) days before the date set
for commencement of trial of the alleged offense, file a notice in writing of this
intention with the clerk and serve a copy of the notice upon the attorney for the
Commonwealth and all other parties. The notice shall specify whether the defendant
intends to introduce expert evidence bearing on the issue of guilt, the issue of
punishment or both such issues." (Emphasis added.)

3 First degree assault, like attempted murder, is a Class B felony, so the plea offer
involved a different charge than the original indictment, but not a reduced charge.
4   Boykin v. Alabama, 395 U.S. 238 (1969).
    had no complaints regarding the services of his counsel and that he was

    pleading guilty freely, knowingly, intelligently and voluntarily.

          Although the plea agreement stated that Rank could argue for "a lesser

    or probated sentence," Rank understood that because of the nature of his

    crime, probation was statutorily prohibited and he would not be eligible for

    parole until he had served 85% of the sentence. 5 The trial court accepted the

    guilty plea and ordered a presentence investigation.

          At the sentencing hearing and pursuant to its agreement, the

    Commonwealth recommended a fifteen-year sentence. The prosecutor asserted

    that Rank's attack on Luke was motivated by rage and jealously that she was

leaving him. In mitigation of punishment, Gettys presented testimony of three

witnesses: a rabbi who had known Rank for several years, a former

professional associate of Rank, and Dr. Miller.

          Dr. Miller testified that Rank was competent and sane, but suffered from

schizotypal personality disorder that caused problems in interpersonal

relationships and made him susceptible to "fixed responses" in stressful

situations. Dr. Miller explained at the sentencing hearing that the intensity of

Rank's attack on Luke was caused by the sense of betrayal he felt when Luke

said she was leaving him. Gettys informed the trial court that he had initially

considered an insanity defense, but Dr. Miller's opinion ruled it out. Gettys

urged the trial to consider Rank's personality disorder, with its associated




5   See KRS 439.3401.

                                            5
obsessive behavior and poor interpersonal relations, along with his alcohol use

on the night of the assault, as factors in mitigation of punishment. Rank

offered no explanation for his conduct and claimed that he had no recollection

of the incident. The trial court declined Rank's plea for mitigation and imposed

the fifteen-year sentence recommended by the Commonwealth.


         II. RCr 11.42 AND THE STRICKLAND TEST FOR INEFFECTIVE
                            ASSISTANCE OF COUNSEL
      RCr 11.42 provides a process by which a convicted prisoner may

collaterally attack the validity of his sentence. When a motion for relief under

RCr 11.42, or the response to such a motion, raises a material issue of fact

that cannot be resolved on the face of the record, the trial court must grant a

prompt hearing. RCr 11.42(5). To successfully establish the invalidity of a

guilty plea based upon the allegedly deficient performance of defense counsel,

the movant must satisfy both prongs of the two-part test set forth in Strickland

v. Washington, 466 U.S. 668 (1984) and restated by this Court in Bronk v.

Commonwealth, 58 S.W.3d 482, 486-487 (Ky. 2001). The movant must

demonstrate that: (1) defense counsel's performance fell outside the wide range

of professionally competent assistance; and that (2) a reasonable probability

exists that, but for the deficient performance of counsel, the movant would not

have pled guilty, but would have insisted on going to trial. In making that

determination, the trial court must indulge the strong presumption that

counsel's conduct fell within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689. The trial court must "consider the


                                        6
totality of the circumstances surrounding the guilty plea and juxtapose the

presumption of voluntariness inherent in a proper plea colloquy with a

Strickland v. Washington inquiry into the performance of counsel[.]" Bronk, 58

S.W.3d at 486 (citations omitted). "[T]he trial court must evaluate whether

errors by trial counsel significantly influenced the defendant's decision to plead

guilty in a manner which gives the trial court reason to doubt the voluntariness

and validity of the plea." Id. at 487.

       Rank's RCr 11.42 motion alleged several specific deficiencies in Gettys'

representation. Rank claims that Gettys failed to explore the possibility of an

EED defense and that he failed to explain to him the legal concept of EED. He

also claims that the effectiveness of Gettys' representation was compromised by

the conflicts of interest inherent in Gettys' fee arrangement. Rank also claimed

that Gettys failed to file a formal discovery motion, failed to follow criminal

practice and procedure, failed to assist him in posting bond, and failed to

adequately counsel him in making a knowing and intelligent decision to plead

guilty. He also claimed that Gettys failed to present effective mitigating

evidence at the sentencing hearing.

      The trial court regarded Gettys' apparent conflict of interest as troubling,

but otherwise concluded under Strickland inquiry that it had no effect on the

issue of whether Rank had intelligently and voluntarily pled guilty. The trial

court rejected Rank's claim that Gettys failed to investigate the EED defense,

pointing out that Gettys fulfilled his obligation of competent representation by

retaining Dr. Miller to evaluate Rank for mental conditions that might provide

                                         7
the basis for a defense. The trial court also concluded that an EED defense

could not have succeeded because Rank, who claimed to have no recollection of

the event, would not have been able to explain at trial what provoked him to

assault Luke.

       Based upon the totality of the circumstances apparent from the face of

the record, the trial court concluded that Rank could not satisfy Strickland's

second prong by demonstrating a reasonable probability that, but for counsel's

deficient performance, Rank would have insisted on going to trial rather than

plead guilty. The trial court found, that a[w]hile his counsel's performance may

well have fallen outside the range of professionally competent and ethical

assistance, [Rank] has failed to establish that he would have proceeded to trial

in this case [but for counsel's deficient performance.]"

      The Court of Appeals disagreed, holding that whether Rank, if properly

advised and represented, would have rejected the plea offer and proceeded to

trial hinged upon issues of fact that could not be determined from the record

alone. Specifically, the Court of Appeals found that the record was insufficient

to dispel Rank's claim that Gettys did not investigate the EED defense, and

that Dr. Miller's testimony at the sentencing hearing did not foreclose that

factual issue. The Court of Appeals found that Rank's other claims of deficient

representation, including Gettys' advice not to post bail, his failure to obtain

formal discovery, and his control of Rank's assets all raised factual issues that

may have influenced Rank's decision to plead guilty. We granted discretionary

review of that decision and now affirm the Court of Appeals.

                                         8
                                      III. ANALYSIS


A. An evidentiary hearing is warranted on Rank's claim that counsel
    failed to investigate and advise him of an EED defense.

       The Commonwealth contends that the Court of Appeals erred because

the record clearly demonstrates the invalidity of Rank's claim that Gettys failed

to properly investigate the viability of an EED defense. The Commonwealth

reiterates the trial court's conclusion that Gettys' effectiveness with respect to

an EED defense was established by the fact that he employed Dr. Miller as a

mental health consultant and expert witness to evaluate Rank and to consult

with counsel. The Commonwealth also argues that under the facts apparent

from the record and as established at the sentencing hearing, an EED jury

instruction and the possibility of a lesser offense that comes with it, would not

have been available to Rank. We do not agree.

      In his RCr 11.42 motion, Rank identified two deficiencies in Gettys'

performance relating to EED. Rank alleged that the concept of EED as a

defense against attempted murder was never discussed with him by Gettys, by

Hickey, or by Dr. Miller, and that he was not otherwise aware of the potential

EED defense until he was sentenced. Rank also alleged that his attorney did

not investigate the circumstances of the crime to determine if an EED defense

was feasible. Consequently, Rank claimed, he was not able to make an

intelligent, informed decision.

      KRS 507.020 provides for the reduction of a murder charge to first-

degree manslaughter when the accused intended to kill the victim but "acted


                                         9
under the influence of an [EED] for which there was a reasonable explanation

or excuse, the reasonableness of which is to be determined from the viewpoint

of a person in the defendant's situation under the circumstances as the

defendant believed them to be." KRS 508.040(1) extends the same mitigating

effect of EED to assault charges.

       In McClellan v. Commonwealth, we defined "extreme emotional

disturbance" as follows:

      Extreme emotional disturbance is 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 extreme emotional disturbance 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
      an extreme emotional disturbance 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.

715 S.W.2d 464, 468-469 (Ky. 1986).

      The possibility that EED played a role in Rank's crime would have been

readily apparent to any lawyer versed in criminal law and aware of the basic

facts of the crime. Consistent with the Commonwealth's version of events,

Rank became enraged upon learning that his cohabitant girlfriend was

breaking up their relationship and he immediately attacked her violently and

intensely with a sword, stabbing her four times.

      The significance of the EED defense is apparent in Rank's case. Before

agreeing to plead guilty to first degree assault, Rank was charged with

attempted murder and, had he opted to go to trial, he would have been tried on


                                       10
    that charge. Attempted murder is a Class B felony 6 with a sentencing range of

    not less than ten nor more than twenty years' imprisonment.? However, when

    committed by one acting under the influence of extreme emotional disturbance,

    attempted murder would be reclassified as attempted first degree

    manslaughter, which is a Class C felony, 8 with a sentencing range of not less

    than five nor more than ten years' imprisonment. 9 It is worth noting that the

amendment of the charge to first degree assault did not afford Rank any

    sentencing advantage at all. First degree assault, like attempted murder, is a

Class C felonym with the same ten-to-twenty year sentencing range. However,

first degree assault, when committed by one acting under the influence of an

extreme emotional disturbance, drops down to a Class D felony." A Class D

felony carries a sentencing range of imprisonment for not less than one nor

more than five years. 12

          Because we cannot know with certainty how the evidence would have

unfolded at trial, we cannot predict how the jury would have been instructed.



6 Murder is a capital offense, KRS 507.020, and therefore attempted murder is a Class
B felony. KRS 506.010(4)(b) ("A criminal attempt is a: . . . (b) Class B felony when the
crime attempted is a Class A felony or capital offense[.]").
7    KRS 532.060(2)(b).
8 First degree manslaughter is a Class B felony under KRS 507.030(2), and therefore
attempted first degree manslaughter is a Class C felony. KRS 506.010(4)(c) ("A
criminal attempt is a: . . . (c) Class C felony when the crime attempted is a Class B
felony[.)").
9    KRS 532.060(2)(c)
10   KRS 508.010(2).
11   KRS 508.040(2)(a).
12   KRS 532.060(2)(d).

                                           11
 Nevertheless, we can say that it is entirely plausible from the circumstances of

 the crime that the jury would have been instructed on alternative theories of

guilt allowing for a conviction for attempted murder or first degree assault,

pursuant to Hall v. Commonwealth, 337 S.W.3d 595, 608 (Ky. 2011) ("[W]here

the victim's suffering a serious physical injury is not really at issue, a first

degree assault instruction can be given as a lesser-included offense when the

defendant's intent (to kill or to injure) determines whether he or she is guilty of

first degree assault or attempted murder."). Thus, the presentation of an EED

defense could have resulted in a conviction for the Class D felony of first degree

assault under extreme emotional disturbance.

       Rank alleges that he was never advised by counsel about EED and the

effect it could have on his sentence and, therefore, he never had the option of

making an informed decision. It is entirely, possible, and it is not unreasonable

to believe, that if Rank had been properly advised with respect to EED and the

possibility of a sentence of less than five years, he would have opted for a trial.

Instead, he pled guilty to an amended charge that carried exactly the same

penalty range, ten to twenty years, as the initial charge.

      The trial court denied Rank's RCr 11.42 motion based on the second

prong of Strickland, finding no reasonable probability that, but for the deficient

performance of counsel, Rank would have insisted on going to trial. If Rank's

claim that, before pleading guilty, he was not fully and fairly apprised with

respect to EED is true, there is a reasonable possibility that he may have

rejected the plea offer and opted for trial. The record does not on its face


                                         12
resolve that factual issue. The Court of Appeals correctly concluded that an

evidentiary hearing should have been granted.

       Rank also contends that Gettys not only failed to advise him with respect

to EED, but that he failed even to investigate or explore the possibility of

raising EED in defense to the attempted murder charge. The Commonwealth

argues that that aspect of Rank's claim is refuted by Gettys' retention of a

mental health expert. Gettys' retention of Dr. Miller does not conclusively

demonstrate that he was attuned to the obvious possibility that EED might

apply to reduce the severity of the principal charge, and hence, the applicable

range of punishment.

      The record clearly establishes that Gettys was concerned about Rank's

competence to stand trial and about the plausibility of an insanity defense. He

expressly hired Dr. Miller to explore those possibilities. Competence and

insanity are ordinarily the manifestation of a mental disease or defect.

Extreme emotional disturbance is neither. Except in rare cases where the

diagnosis is self-evident, competence to stand trial and insanity typically

depend upon the informed opinion of a medical, psychiatric, or psychological

expert. Unlike competence and insanity, extreme emotional disturbance by

definition does not arise from a mental disease or defect. See McClellan, supra.

It is a factual determination reasonably within the ordinary comprehension of

lay jurors. Expert psychiatric or psychological testimony may assist in

understanding an emotional reaction like EED, but expert opinion testimony is

not required to sustain a finding of EED.

                                        13
       The record does not conclusively establish that Dr. Miller examined Rank

for the purpose of testifying about EED. The record is silent with respect to Dr.

Miller's role beyond determining Rank's sanity and competence. Dr. Miller met

with Rank one time for 3 1/2 hours to conduct his basic evaluation of Rank's

current mental status. He told Gettys it was unlikely he could assist in Rank's

mental health defense during the guilt/innocence trial phase. His role was to

provide mitigating testimony at sentencing by explaining Rank's diagnosed

schizotypal personality disorder. Dr. Miller never mentioned EED, and whether

he considered it and discussed it with Gettys or Rank is not apparent from the

record.

       In support of his contention that Dr. Miller was not hired to explore the

viability of an EED defense, Rank asserts that during Dr. Miller's evaluation of

him, Dr. Miller asked no questions bearing on the possibility that the attack

may have resulted from an EED, and that Dr. Miller never mentioned EED. Dr.

Miller testified at the sentencing hearing that he was hired to help Gettys

understand Rank and to help explain Rank's disorder and behavior in the

context of the crime as part of mitigation.

      We accept the Commonwealth's response that defense counsel cannot be

held responsible for the quality of an expert's evaluation, but that misses the

point. If Dr. Miller was not expressly instructed to evaluate Rank and the

circumstances of his crime in light of the definition of EED, the error is Gettys',

not Miller's. The record does not resolve the question. Defense counsel's

obligation to conduct reasonable investigations, Haight v. Commonwealth, 41

                                         14
S.W.3d 436, 446 (Ky. 2001), is not altered when a mental health expert is

employed to conduct an EED evaluation.

       EED is a statutorily defined defense bearing upon the issue of guilt; more

specifically, it can determine which crime the defendant committed.      Coffey v.

Messer, 945 S.W.2d 944, 946 (Ky. 1997). Defense counsel has a duty to

conduct a reasonable investigation of law and facts relevant to potential

defenses. In assessing the reasonableness of counsel's investigation, Strickland

explains:

      The reasonableness of counsel's actions may be determined or
      substantially influenced by the defendant's own statements or
      actions. Counsel's actions are usually based, quite properly, on
      informed strategic choices made by the defendant and on
      information supplied by the defendant. In particular, what
      investigation decisions are reasonable depends critically on such
      information. For example, when the facts that support a certain
      potential line of defense are generally known to counsel because of
      what the defendant has said, the need for further investigation
      may be considerably diminished or eliminated altogether. And
      when a defendant has given counsel reason to believe that
      pursuing certain investigations would be fruitless or even harmful,
      counsel's failure to pursue those investigations may not later be
      challenged as unreasonable. In short, inquiry into counsel's
      conversations with the defendant may be critical to a proper
      assessment of counsel's investigation decisions, just as it may be
      critical to a proper assessment of counsel's other litigation
      decisions.

466 U.S. at 691 (citation omitted). Thus, defense counsel is obligated "to make

reasonable investigations [of potentially applicable legal and factual issues] or

to make a reasonable decision that makes particular investigations

unnecessary." Strickland, 466 U.S. at 691.




                                        15
       Rank's motion raised a material question as to the reasonableness of

Gettys' investigation of the potential for an EED defense or, framed differently,

whether it was reasonable for Gettys not to pursue an EED defense.. See

Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (an evidentiary hearing is

required to determine whether counsel's decision was "trial strategy or an

abdication of advocacy"). Gettys' knowledge and understanding of the relevant

facts relating to a potential EED defense are not evident on the face of the

record. An evidentiary hearing on Rank's RCr 11.42 motion was required to

ascertain those facts.

B. An evidentiary hearing is not warranted on Rank's other claims.

      Rank also alleges that factors, other than the EED issue, also rendered

defense counsel's performance constitutionally ineffective. He argues that an

evidentiary hearing should have been granted to determine if counsel's

effectiveness was impaired due to his conflicts of interest; his failure to file a

formal written motion for discovery; his failure follow criminal practice and

procedure; his failure to assist Rank in getting released on bond to aid in his

defense; a breach of counsel's fiduciary duty; counsel's failure to adequately

assist him in making a knowing, intelligent, and voluntary decision about

whether or not to plead guilty; and counsel's failure to present effective

mitigating evidence at the sentencing hearing. As explained below, we are

satisfied that these claims did not require an evidentiary hearing.




                                         16
 1. Conflict of interest

       Rank alleges that his acquaintance and personal attorney, Patrick

Hickey, not only recommended that he hire Gettys, but also acted as Gettys'

co-counsel. As described by Rank, Hickey's role as co-counsel is demonstrated

by Hickey visiting him in jail, advising him (in conjunction with Gettys) not to

post bond and to liquidate his assets, counseling him about whether or not to

plead guilty, providing materials to the expert witness, and sitting at counsel

table during sentencing. Hickey had previously represented Luke in an

eviction case and Rank contends that that representation created a conflict of

interest for Hickey.

      Mitchell v. Commonwealth, 323 S.W.3d 755, 760 (Ky. App. 2010),

provides the standard of review particular to an ineffective assistance of

counsel claim premised on a conflict of interest. "[I]n order to successfully

assert a claim of ineffective counsel based on a conflict of interest, a defendant

who entered a guilty plea must establish: (1) that there was an actual conflict

of interest; and (2) that the conflict adversely affected the voluntary nature of

the guilty plea entered by the defendant." Id. at 760 (citing Thomas v. Foltz,

818 F.2d 476, 480 (6th Cir. 1987)). "A conflict arises from competing duties or

interests that create the potential for prejudice." Beard v. Commonwealth, 302

S.W.3d 643, 647 (Ky. 2010).

      Applying this standard to Rank's allegations, we conclude that an

evidentiary hearing.on the issue was not required. Hickey's prior




                                        17
 representation of Luke in an unrelated civil action could not have affected

 Rank's defense in the criminal case.

 2. Failure to file a formal discovery motion

       Rank alleges that Gettys failed to file a routine motion for discovery, and

 that he further failed to provide Rank with the discovery materials voluntarily

 disclosed by the Commonwealth. Our review of the record persuades us that

Rank cannot establish that Gettys' performance with respect to pretrial

discovery was substandard or that it had any prejudicial effect on the defense.

The record indicates, and Rank acknowledges, that all discoverable material

was obtained. Gettys' failure to make an unnecessary motion was not

unreasonable. Rank cannot demonstrate how he was prejudiced by not seeing

all of the discovery material Gettys obtained. An evidentiary hearing is not

required on this issue.

3. Failure to follow proper procedure in motion to depose the victim

       Rank alleges that Gettys' motion to depose Luke did not comply with

proper criminal practice and procedure. He asserts that the motion provided

no supporting legal authority and was filed without proper notice to the

Commonwealth. Although the trial court allowed Gettys time to submit

supporting authority for the request to depose Luke, Rank asserts that Gettys

never did so.

      Rank complains that Gettys' omission displays his lack of understanding

of criminal law practice and procedure. He does not, however, indicate how he

was prejudiced, and we fail to see any prejudice. The record reflects that


                                        18
Luke's deposition was taken and was available to Dr. Miller. An evidentiary

hearing is not required on this issue.

4. Failure to assist in posting bond; and breach of fiduciary duty
       Rank alleges that both Gettys and Hickey advised him that posting bond

would be adverse to his interest because it would create the appearance that

he was wealthy; it may encourage Luke to file a civil suit against him; and it

may lead to getting his bond increased. Gettys advised Rank to grant Gettys

his power of attorney so that Gettys could shield Rank's assets from the

potential civil claim. Rank points out if he had posted bond, he would not have

needed Gettys to have his power of attorney, nor would he have had to pay

Gettys for managing his personal business affairs. Rank claims that Gettys

sold many of Rank's possessions for less than fair market value. As noted by

the trial court, these allegations raise troubling ethical concerns but Rank does

not explain how these actions would have impacted his decision to plead guilty.

An evidentiary hearing is not required for these issues.

5. Misadvice on guilty plea

      Rank contends that he was induced to plead guilty as a result of

inaccurate advice provided by trial counsel about his eligibility for probation

and parole. Even if this allegation is true, which is a factual issue we do not

decide, the record discloses that the trial court clearly and correctly informed

Rank that he was pleading guilty to a violent crime and would have to serve

85% of the sentence before becoming eligible for parole. Although at one point

in the plea hearing Rank hesitated and asked for a continuance to more fully


                                         19
 consider his options, he ultimately relented and acknowledged that his guilty

 plea was knowing, intelligent, and voluntary. We held in Edmonds v.

 Commonwealth

       If the information given by the court at the plea hearing corrects or
       clarifies the earlier erroneous information given by the defendant's
       attorney and the defendant admits to understanding the court's
       advice, the criminal justice system must be able to rely on the
       subsequent dialogue between the court and defendant.

 189 S.W.3d 558, 568 (Ky. 2006) (quotation and citations omitted).

       The record reveals that any erroneous information given to Rank by

counsel about probation and parole eligibility was corrected by the trial court.

The trial court explained the terms of the plea and Rank expressed his

understanding of them. An evidentiary hearing is not required on this issue.

6. Mitigation evidence at sentencing hearing

      Rank alleges that defense counsel failed to present effective mitigating

evidence at his sentencing hearing. He complains that Gettys presented the

testimony of Dr. Miller that he had schizotypal personality disorder, that he did

not think his actions were wrong, and that he chose the sword as his weapon

because of its meaning to him. Rank complains that Dr. Miller's testimony

portrayed him as unremorseful and dangerous. He blames Gettys for not

anticipating the negative impact of Dr. Miller's testimony. Rank also complains

that Gettys' examination of other witnesses at the sentencing hearing failed to

focus on his better qualities, his lack of a criminal record, and his remorse, but

instead emphasized Rank's obsessive/compulsive nature. Rank's complaints

are, in this regard, refuted by the record. Rank seemingly discounts the


                                        20
positive references to his intelligence and productivity as a member of society.

Dr. Miller described the schizotypal personality disorder as treatable with

medication and psychotherapy, and that with treatment, Rank posed no

danger to society. A significant amount of sentencing hearing testimony

reinforced Gettys' plea for mitigation.

      Although Rank complains about his counsel's witness selection,

"[d]ecisions relating to witness selection are normally left to counsel's judgment

and this decision will not be second-guessed by hindsight." Foley v.

Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000) (citation omitted), overruled on

other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005).

Furthermore, a defendant "is not guaranteed errorless counsel, or counsel

judged ineffective by hindsight, but counsel likely to render and rendering

reasonably effective assistance." Haight, 41 S.W.3d at 442.

      As is not uncommon, after hearing the mitigation testimony, the trial

court imposed the sentence recommended by the Commonwealth rather than

the sentence hoped for by the defendant. The record refutes Rank's claim that

Gettys' performance with respect to mitigation witnesses was prejudicial to his

case. An evidentiary hearing is not required on this issue.


                                   IV. CONCLUSION
      For the foregoing reasons, the Court of Appeals is affirmed. This case is

remanded to the Kenton Circuit Court for an evidentiary hearing on Rank's RCr

11.42 motion, limited to the issue involving counsel's alleged ineffectiveness in



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investigating the potential for an EED defense and in advising Rank with

respect to the possible ramifications of an EED defense.

       AU sitting. Minton C.J.; Cunningham, Hughes, and Noble, JJ., concur.

Keller, and Wright, JJ., concur in result only.




COUNSEL FOR APPELLANT:

Andy Beshear
Attorney General of Kentucky

Taylor Allen Payne
Assistant Attorney General


COUNSEL FOR APPELLEE:

Douglas Rank
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty KY 41472




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