                                                   RENDERED: AUGUST 25, 2016
                                                           TO BE PUBLISHED

               Suprrntr Gurf                        (:tfirttf 5141
                               2015-SC-000385-MR

                                                                    Towtymaid   .440,4
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).




       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.
      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.

                                      H. 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 Beshear
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
