Commonwealth v. Pridham

• Decision Date: 25 April 2013
• Docket Number: Nos. 2011–SC–000126–DG, 2010–SC–000733–DG.,s. 2011–SC–000126–DG, 2010–SC–000733–DG.
• Citation: 394 S.W.3d 867
• Parties: COMMONWEALTH of Kentucky, Appellant v. Russell Tim PRIDHAM, Jr., Appellee. and Jason Cox, Appellant v. Commonwealth of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

394 S.W.3d 867

COMMONWEALTH of Kentucky, Appellant

v.Russell Tim PRIDHAM, Jr., Appellee.andJason Cox, Appellant

v.Commonwealth of Kentucky, Appellee.

Nos. 2011–SC–000126–DG, 2010–SC–000733–DG.

Supreme Court of Kentucky.

Oct. 25, 2012.

Rehearing Denied April 25, 2013.

Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Meggan Elizabeth Smith, Assistant Public Advocate, Department of Public Advocacy, LaGrange, KY, Counsel for Appellant.

Douglas Patrick Vowels, Brandenburg, KY, Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

The Sixth Amendment to the United States Constitution guarantees criminal defendants the effective assistance of counsel.Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).That constitutional guarantee extends to defendants who are contemplating guilty pleas.Hill v. Lockhart,474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203(1985).In Padilla v. Kentucky,559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284(2010), the Supreme Court recently held that that guarantee is breached when defense counsel fails to advise his or her noncitizen client that a contemplated guilty plea will subject the client to automatic deportation.Is the guarantee likewise breached when counsel fails to advise her client that the crime to which he is pleading guilty will automatically render him subject to a longer period of parole ineligibility under Kentucky Revised Statute (KRS) 439.3401, the violent offender statute?Is it breached when counsel advises his client of the mandatory sex offender treatment applicable to the crime to which he is pleading but fails to advise him of the effects of that program on parole eligibility?Panels of the Court of Appeals answered “yes” to the first question and “no” to the second.We granted discretionary review in the two cases— Commonwealth v. Pridham,2011–SC–000126, andCox v. Commonwealth,2010–SC–000733–to consider the related questions together in light of Padilla.In both cases, we affirm.

RELEVANT FACTS

Commonwealth v. Pridham,2011–SC–000126–DG.

According to the Uniform Citation, in July 2006, in Elizabethtown, an officer of the Greater Hardin County Task Force, suspecting apparently that Timothy Pridham, a convicted methamphetamine manufacturer, had obtained pseudoephedrine—a methamphetamine precursor—stopped the vehicle in which the fifty-seven year old Pridham and three others were riding.He found in the passenger compartment a bag containing thirty pseudoephedrine-containing pills and in the trunk chemicals used in the “red phosphorus and iodine” method of methamphetamine manufacture.SeeKotila v. Commonwealth,114 S.W.3d 226(Ky.2003)(discussing three methods of manufacturing methamphetamine).Pridham confessed to the officer that he was on parole following his prior manufacturing conviction and that he was the “cook” in a new manufacturing operation.A subsequent search of Pridham's Shepherdsville residence produced other items used to manufacture methamphetamine, including isolated pseudoephedrine, muriatic acid, and starting fluid.

Based on this evidence, in August 2006 a Hardin County Grand Jury issued an indictment charging Pridham with manufacturing methamphetamine, second or subsequent offense, a class A felony (KRS 218A.1432); with complicity to commit unlawful distribution of a methamphetamine precursor, a class D felony (KRS 218A.1438); and, because one of the other passengers in the vehicle with Pridham when he was stopped was a minor, with fourth-degree controlled substance endangerment to a child, also a class D felony (KRS 218A.1444).The indictment further charged Pridham with being a first-degree persistent felony offender (KRS 532.080).

The matter came to trial in September 2007, but at the end of voir dire, before the jury had been chosen, Pridham informed the trial court that he was willing to accept the Commonwealth's offer of concurrent thirty, five, and five year sentences in exchange for his plea of guilty to all of the charges.The trial court then conducted a plea hearing pursuant to RCr 8.08 and Boykin v. Alabama,395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969), at which Pridham at first complained that both the arresting officer and the Commonwealth had earlier held out hope of more lenient treatment.When the Commonwealth made clear, however, that it was not budging from the pending thirty-year offer, Pridham conceded that he was guilty and that his chances of acquittal at trial were slim to none.He acknowledged the constitutional rights he was waiving, expressed satisfaction with his counsel's representation, and pled guilty in accord with the Commonwealth's offer.The trial court accepted the plea, and by Judgment entered November 7, 2007, sentenced Pridham accordingly to thirty years in prison.

In September 2008, Pridham moved for relief from that Judgment pursuant to Kentucky Rule of Criminal Procedure(RCr) 11.42.His motion alleged that trial counsel assured him that he would become eligible for parole upon having served twenty percent (20%) of his thirty-year sentence, or six years,¹ whereas in fact KRS 439.3401, the “violent offender”statute, operates so as to render him ineligible for parole for twenty years, at which point Pridham would be seventy-seven years old.²Pridham maintained that counsel's incorrect advice fell below the Sixth Amendment standard of effectiveness recognized by the Supreme Court in Strickland and that had he been correctly advised he would not have accepted a plea “bargain” with virtually no benefit, but would instead have gone ahead with his trial.

The trial court, relying on this Court's opinion in Commonwealth v. Padilla,253 S.W.3d 482(Ky.2008), a case in which defense counsel erroneously assured his noncitizen client that a guilty plea to drug charges would have no bearing on his immigration status, denied Pridham's motion without a hearing.In Padilla,we reaffirmed prior cases to the effect that a defendant's misapprehension regarding the collateral consequences of a guilty plea, and hence counsel's misadvice regarding such consequences, does not invalidate the plea.Deeming parole eligibility a collateral consequence of Pridham's plea, the trial court found our opinion controlling.

Pridham appealed that ruling to the Court of Appeals, and while his case was pending, the United States Supreme Court issued its Padilla opinion, in which it reversed our decision and held that for noncitizens the deportation consequences of a criminal conviction are so severe, so penalty-like, and so intimately related to the criminal process as to make the collateral versus direct distinction upon which we had relied “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.”130 S.Ct. at 1482.The Court concluded that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel,”id., and that under Strickland's “objective standard of reasonableness,” attorneys counseling defendants potentially at risk of deportation have an affirmative duty to apprise their clients of that risk: “When the [immigration] law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”130 S.Ct. at 1483.

Likening the adverse parole consequences of Pridham's guilty plea to the deportation consequences at issue in Padilla,the Court of Appealspanel unanimously agreed that Pridham's RCr 11.42 motion alleged a Strickland violation and so remanded the matter to the trial court for a hearing to determine whether counsel had in fact misadvised Pridham as alleged, and if so whether the misadvice was reasonably likely to have induced Pridham's decision to forego a trial.We granted the Commonwealth's motion for discretionary review to consider its claim that the Court of Appeals read Padilla too broadly.

Cox v. Commonwealth,2010–SC–000733–DG.

In late 1999, a Henry County Grand Jury issued an indictment against Jason Cox charging him with first-degree sodomy against a four-year-old child, a class A felony (KRS 510.070).Apparently, the charge stemmed from reports of sexual contact between Cox and his stepson.Cox denied the charge, and on more than one occasion rejected guilty plea offers from the Commonwealth.The matter was thus still outstanding in 2003 when Cox pled guilty in the Jefferson Circuit Court to unrelated charges of kidnapping, a class B felony (KRS 509.040) and second-degree robbery, a class C felony (KRS 515.030).For those offenses Cox was sentenced to concurrent terms of ten years' imprisonment.

At that point, it appears, the Commonwealth proposed to Cox's retained counsel a plea bargain meant to merge, as far as possible, the punishments for the Jefferson County and the Henry County offenses.To that end, counsel first recommended to Cox that he accept an offer whereby the Henry County charge would be amended to second-degree sodomy, a class C felony, and the recommended sentence would be ten years to be served concurrently with the sentence from Jefferson County.As represented by counsel in a letter to Cox, the advantages of that deal were “that you will not get any time consecutive to your Jefferson County sentence.The amendment to Sodomy 2nd also takes the charge out of the violent offender statute that requires one to serve 85% of their sentence before they are eligible for parole.”Under both sentences, counsel told Cox, he would be eligible for parole in two years.

Ultimately,...