Bryan Russell v. Commonwealth of Kentucky ( 2016 )

RENDERED: AUGUST 25, 2016
TO BE PUBLISHED
S5uprrtur (Court of TArttfuritv
2015-SC-000385-MR
BRYAN RUSSELL APPELLANT
ON APPEAL FROM CAMPBELL CIRCUIT COURT
V. HONORABLE JULIE REINHARDT WARD, JUDGE
CASE NUMBERS 14-CR-00444, 14-CR-00758
AND 14-CR-00830
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
After entering a guilty plea, the Appellant, Bryan Russell, sent a letter to
the trial court complaining about the effectiveness of his counsel and the
legality of the sentence to which he had agreed. The letter did not specifically
ask for any relief, such as the setting aside of Russell's plea. The primary issue
in this case is whether Russell's letter was sufficient to constitute a pro se
motion to withdraw his guilty plea under Criminal Rule 8.10. Resolution of that
issue turns primarily on whether the letter "set[s] forth the relief or order
sought" as required under Criminal Rule 8.14. Although pro se litigants are not
held to the same standards as counsel, this Court nonetheless holds that
because Russell's letter did not expressly ask for any relief, much less ask to
withdraw his guilty plea, it cannot be construed as a motion under Criminal
Rule 8.14. Therefore, this court affirms the Campbell Circuit Court judgment.
I. Background
Russell was indicted for various charges on three separate occasions
from June to October 2014. He was appointed a DPA attorney, who entered an
appearance in all three cases and represented Russell throughout the
proceedings. Rather than proceeding to trial, the Commonwealth and Russell
resolved all three cases by entering into a plea agreement under which Russell
would be sentenced to a total of 30 years' imprisonment (a pair of 10-year
concurrent terms to be served consecutively to a 20-year term). On April 13
2015, after engaging in the plea colloquy required by Boykin v. Alabama, 395
U.S. 238 (1969), the trial court accepted Russell's guilty pleas, and set
sentencing for May 18, 2015. At the sentencing hearing, the trial court once
again went over the terms of the plea agreement in great detail, to which
Russell responded that he understood and agreed to the terms of the plea. The
final judgments in these cases were signed the next day.
Within a few days of the sentencing hearing,' Russell wrote a letter to the
trial court complaining about the adequacy of his legal representation and
claiming that he had misunderstood the terms of the plea agreement. The trial
record indicates that Russell's letter was filed on June 1, 2015, and was
marked as "Letter in ref to appeal" on the step sheet (i.e., the index of
documents in the clerk's file).
1 Russell claims in his brief that he wrote the letter on May 19, but the letter is
dated May 22.
2
Relevant to the issue before this Court are the following statements
contained in the letter: 2
I am writing to you in regards to my sentence/case. I want to know
what i must do to first apply and recive an appeallett lawyer cause
i cant afford private council and what happens from there? My
reasons for the appeal are that one—my public defender came to
see me "2" times in the 9 1/2 months i've been here in jail fighting
these charges and two—it has come to my attention that no "class
D" sentence shall exceed a 20 year sentence term. Mine is 30, and
on top of this i just don't feel i had a lawyer whom had my best
interests in mind. I was under the assumption that the burglary
and robbery had to run together—concurrently but for some
reason the few times i spoke to [my lawyer] he told me that isint so
and that there was no way i could reach a 20 year sentence at
20%. ... And i don't know why my P.S.I. has my risk level so high,
ive kept a job and completed H.I.P and M.R.S. While out, i guess i
had missed putting all of my work history in. But i do understand
the severity and what my past charges makes me look like. But
please your honor, please belive me when i say i am not a monster,
i do not and have not physically harmed anyone thru any of my
mistakes. And not to make that sound as a excuse i deserved the
sentences that i got and did for my sins. ... Honestly off of the
drugs ive never committed a crime your honor, and even though i
have made the mistake of using again and stealing again i still
deserved a lawyer who was working for me. I am just 31 years old
i realize i defintly deserve some time but 30?, i wouldnt even be
writing if id got the 20 i pleaded and begged for. ... But anyways i
want to appeal my case due to insufficient counsil based off his
lack of work, his contact with me in 9 1/2 months—twice!—and how
he apparently allowed me to plead guilty to a sentence improperly
stacked/imposed—again, i belive no "class D" sentence shall
exceed 20 years, mine is 30 at 20%. Thank you so much for your
time and consideration .... Again it does bother me that that P.S.I.
make me sound like a monster, it cant possibly help the parole
board do anything but flop me over + over even though i guarantee
i will see them with all they recommend completed and not 1 write
up. I guess only time will tell but that's exactly why im trying to get
at least a sentence reduction.
2 The quote from the letter is copied verbatim from Russell's letter to the court.
Grammatical and spelling errors are left unchanged and are not noted by the usual
"[sic]" notation.
3
The trial court took no action with respect to the letter. The final
judgments were entered by the clerk on June 2, 2015. Russell appealed
to this Court as a matter of right.
II. Analysis
On appeal, Russell argues that his letter to the trial court should have
been considered a pro se motion to withdraw his plea under Criminal Rule
8.10. He further contends that the substance of the letter put the trial court on
notice that his guilty plea was entered into involuntarily as a result of
ineffective assistance of counsel, and that he was thus entitled to an
evidentiary hearing.
A guilty plea is valid only if it is entered knowingly, intelligently, and
voluntarily. Boykin v. Alabama, 395 U.S. 238 (1969); Bronk v. Commonwealth,
58 S.W.3d 482, 486 (Ky. 2001). Under Criminal Rule 8.10, a defendant may
move to withdraw a plea and "at any time before judgment the court may
permit the plea of guilty . . . to be withdrawn and a plea of not guilty
substituted." If a Criminal Rule 8.10 motion alleges that the plea was not
entered into knowingly, intelligently, or voluntarily, then the defendant is
entitled to an evidentiary hearing to determine the validity of the plea.
Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006); Rodriguez v.
Commonwealth, 87 S.W.3d 8, 11 (Ky. 2002). However, according to the
Criminal Rules, an allegation that the plea was not entered knowingly,
intelligently, or voluntarily, must be asserted in a proper motion.
Commonwealth v. Tigue, 459 S.W.3d 372, 386-387 (Ky. 2015). Our initial task,
then, is determining whether Russell's letter was a proper motion.
4
A. Russell's letter did not set forth the relief requested, and therefore,
the letter cannot be construed as a pro se motion under Criminal
Rule 8.14.
Whether a filing constitutes a valid motion is controlled by Criminal Rule
8.14, which states that "an application to the court for an order shall be by
motion which shall be in writing unless made during a hearing or trial, shall
state with particularity the grounds therefor, and shall set forth the relief or
order sought." (Emphasis added.) The trial court never made an explicit
determination as to whether the letter was a motion, but its decision not to
address it at all suggests that it believed the letter was but a letter. Regardless,
whether a defendant made a proper motion under Criminal Rule 8.14 is a
question of law reviewed de novo.
Russell's letter was not a formal motion by any means. But a letter to the
court may be construed as a pro se motion if it complies with Criminal Rule
8.14. Tigue, 459 S.W.3d at 386-87. Additionally, this Court has recognized that
pro se litigants are entitled some leniency. Beecham v. Commonwealth, 657
S.W.2d 234, 236 (Ky. 1983). As this Court stated in Beecham, "Pro se pleadings
are not required to meet the standard of those applied to legal counsel." Id.
Nonetheless, pro se pleadings still "must give at least fair notice of the claim for
relief to be sufficient." Id. (emphasis added).
Although Russell contends that his letter to the trial court was a motion
to withdraw his plea, he has offered no support that his letter gave the trial
court fair notice of the claim for relief, i.e., that he wished to withdraw his plea
of guilty. In fact, the letter contains no express request for relief and consists
5
primarily of complaints about the quality of the lawyer and his claimed
misunderstanding of his plea agreement.
Upon close examination of the letter, the letter could be construed as
implicitly requesting a sentence reduction or guidance for how to proceed with
an appeal from final judgment. Specifically, the statements, "i want to appeal
my case due to insufficient counsil"; "I want to know what i must do to first
apply and recive an appeallett lawyer"; "im trying to get at least a sentence
reduction"; and "i wouldnt even be writing if id got the 20 i pleaded and begged
for," relate to these subjects. But neither of those subjects has anything to do
with Russell withdrawing his guilty plea. Thus, this Court is convinced that
Russell did not intend for his letter to be construed as a motion to withdraw his
plea under Criminal Rule 8.10. Even if that was his intent, nothing in his letter
evinces it.
This conclusion becomes even more apparent when compared to
Commonwealth v. Tigue. In Tigue, this Court held that a defendant's letter
could be construed as a pro se motion to withdraw a plea under Criminal Rule
8.10 and in compliance with the requirements of Criminal Rule 8.14, because
the defendant had also made a "clear and unambiguous" oral request to
withdraw his plea. 459 S.W.3d at 386-387. The oral statement in combination
with letters to the court provided fair notice of his claim for relief. Id.
The facts of Tigue are distinguishable from the facts in this case. In that
case, the defendant, Tigue, pleaded guilty to criminal charges after the Boykin
colloquy at trial. But unlike Russell, Tigue unequivocally attempted to
withdraw his plea through numerous channels after pleading guilty. Id. at 387.
6
For instance, immediately after Tigue entered into the plea agreement (1) he
contacted friends and family members notifying them that he wished to
withdraw his guilty plea, (2) his friends and family wrote several letters to the
judge to ask the court to allow him to withdraw his plea, (3) he unsuccessfully
attempted to contact his attorneys on multiple occasions to ask for their
assistance in withdrawing his guilty plea, and (4) at sentencing, Tigue orally
asked the court to allow him to withdraw his guilty plea. Id. Although the trial
court denied his request to withdraw his guilty plea on the ground that no
proper Criminal Rule 8.10 motion was made, this Court reversed because
Tigue's clear and unambiguous request to withdraw his guilty plea adequately
"set forth the relief sought." Id.
In this case, Russell did not clearly and unambiguously ask to withdraw
his guilty plea either in his letter to the court or by any other potential methods
like those utilized by Tigue. Therefore, unlike in Tigue, this Court agrees with
the Commonwealth that Russell's letter was not a motion under Criminal Rule
8.14. For that reason alone, Russell's conviction on his plea of guilty must be
affirmed.
B. Russell's letter did not allege that he entered into the plea
involuntarily, and therefore he was not entitled to an evidentiary
hearing.
As a secondary claim, Russell also argues that he was entitled to an
evidentiary hearing to determine the validity of his plea. Even if his letter could
be construed as a proper motion, Russell still would not be entitled to relief
because the letter also does not allege that Russell entered into the plea
agreement involuntarily. Russell argues that the trial court was put on notice
7
about the validity of his plea—i.e., that the plea was not entered into
voluntarily, knowingly, or intelligently—and therefore, that he was entitled to
an evidentiary hearing. This argument fails because the letter did not put the
trial court on notice that Russell claimed that his plea was involuntarily
entered.
As the Commonwealth correctly asserts, a criminal defendant is only
entitled to an evidentiary hearing on a motion to withdraw a guilty plea when
"it is alleged that the plea was entered involuntarily." Edmonds, 189 S.W.3d at
566 (citing Rodriguez, 87 S.W.3d at 10). In the present case, Russell's letter to
the court made no allegation that he entered into the plea agreement
involuntarily. The Commonwealth is correct that Russell's letter did not make a
claim that his guilty plea was the product of duress or coercion, see Adams v.
Tuggle, 189 S.W.2d 601 (Ky. 1945) (recognizing that duress or coercion would
be evidence of involuntariness), or that Russell was unaware of the direct
consequences of his plea, see Edmonds, 189 S.W.3d at 566 (recognizing a plea
is involuntary if the defendant lacked full awareness of the direct
consequences).
Russell's claim in this regard appears to be based on his statements in
the letter that he had since learned that his sentence was illegal and that he
did not get the sentence he had wanted. First, neither of these claims show the
unintelligence or involuntariness of his plea. That he came to the belief, after
the fact, that his sentence was illegal does not change his conduct or his state
of mind at the time he entered the plea. That he did not get the sentence he
8
first requested also does not mean that the sentence he eventually agreed to
was part of an involuntary or unintelligent plea.
Moreover, to the extent that it could even be inferred from his letter that
he was confused about his sentence at the time of his plea, that claim is belied
by what actually happened during the trial court's proceedings. A close review
of the trial record reveals that Russell both affirmed that he entered into the
agreement voluntarily and that the judge apprised him of the consequences of
the plea agreement on two separate occasions. First, on April 13, 2015, when
Russell entered his plea, the trial court engaged in a lengthy Boykin colloquy
explaining the terms of the plea deal, namely that the ten-year sentences would
run concurrently with each other but consecutively to the twenty-year sentence
for a total of thirty years to serve. Also on that date, Russell signed the plea
documents clearly stating the terms of his plea deal, including a total sentence
of 30 years, which again was the product of his ten-year sentences being run
consecutively to his twenty-year sentence. Second, on May 18, 2015, at the
sentencing hearing, the trial judge once again went over the plain terms of the
plea deal in great detail, to which Russell responded that he understood and
agreed to the terms. All of the aforementioned case history supports this
Court's opinion that the trial court had no notice that Russell entered the plea
agreement involuntarily, as he is now claiming on this appeal.
III. Conclusion
In conclusion, this Court holds that Russell's letter did not adequately
set forth the relief requested and therefore cannot be construed as a motion
under Criminal Rule 8.14. Consequently, his letter to the trial court was not a
9
pro se motion to withdraw his guilty plea under Criminal Rule 8.10.
Alternatively, the letter did not contain any language that should have put the
trial court on notice that the plea was entered into involuntarily. As a result, no
evidentiary hearing to determine the validity of his plea was required.
Therefore, this court affirms the judgment of the Campbell Circuit Court.
All sitting. Minton, C.J.; Hughes, Keller, Venters and Wright, JJ., concur.
Cunningham, J., concurs in result by separate opinion.
CUNNINGHAM, J., CONCURRING IN RESULT: I believe that inmate
Russell's letter was sufficiently clear and complete to constitute a valid motion
under Criminal Rule 8.14. The majority correctly notes that pro se litigants are
not required to comply with strict rules of drafting. A liberal access to the
courts has especially been granted to incarcerated petitioners. E.g., Haines v.
Kerner, 404 U.S. 519, 520 (1972). To me—one whO has fielded repeated inmate
pleadings over the years in a prison jurisdiction—the Appellant clearly got in
the ball park of a prayer for relief. The average judge can easily read his letter
and ascertain that (1) he wants counsel appointed; (2) he wants to appeal (3) he
expresses confusion about his understanding of the sentence and thus is
clumsily asking that his plea be set aside; and (4) he makes it clear he claims
his counsel is ineffective. No one can read his letter without fully
understanding his grievance and the relief sought. However, even if the trial
judge considered the letter as a motion to withdraw his plea under RCr 8.14, it
is doubtful he would have been entitled to a hearing. Because the guilty plea
colloquy was thorough, the motion would have been properly denied without a
hearing.
10
For the foregoing reasons, I concur in result.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
Department of Public Advocacy
5 Mill Creek Park, Section 100
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Andy Be shear
Attorney General
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General, Suite 200
1024 Capital Center Drive
Frankfort, Kentucky 40601
11