RENDERED: AUGUST 25, 2016 

TO BE PUBLISHED 

Suprrntr Gurf (:tfirttf 5141 

2015-SC-000385-MR 

BRYAN RUSSELL 

Towtymaid .440,4 

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. 

2The 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. 

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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. 

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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. 

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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