PRIDHAM (RUSSELL TIM) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: NOVEMBER 19, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002190-MR
RUSSELL TIM PRIDHAM, JR
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 06-CR-00503
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING & REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; STUMBO, JUDGE; SHAKE,1 SENIOR
JUDGE.
SHAKE, SENIOR JUDGE: Russell Pridham appeals from a Hardin Circuit Court
denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for postconviction relief based upon ineffective assistance of counsel. Pridham requests
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
relief based upon his counsel’s gross misadvice concerning parole eligibility. The
trial court denied his motion, without an evidentiary hearing, based upon the
Kentucky Supreme Court’s holding in Commonwealth v. Padilla, 253 S.W.3d 482
(Ky. 2008) (overturned by Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176
L.Ed. 2d 284 (2010)), that incorrect advice concerning collateral issues does not
warrant post conviction relief. In light of the U.S. Supreme Court’s reversal of
Commonwealth v. Padilla, 253 S.W.3d 482, we reverse the Hardin Circuit Court’s
order and remand this case to the circuit court for an evidentiary hearing.
I. Factual and Procedural Background
On September 24, 2007, Pridham entered an unconditional guilty plea
to the charges of manufacturing methamphetamine, second offense, fourth-degree
controlled substance, endangerment to a minor, complicity to commit unlawful
distribution of a methamphetamine precursor, and being a first-degree persistent
felony offender. He received a sentence of 30 years’ imprisonment.
Manufacturing methamphetamine, second offense, is a Class A felony
which requires that Pridham must serve 85% of his sentence before he is eligible
for parole. KRS 439.3401. On appeal, Pridham claims that his defense counsel
grossly misadvised him that he would be eligible for parole after serving 20% of
his sentence, or 6 years.
On July 11, 2008, Pridham moved the trial court to correct his sentence
and claimed that the Department of Corrections categorized him inappropriately as
-2-
an inmate who would be eligible for parole after serving 85% of his sentence. The
trial court remanded the motion on July 31, 2008.
On September 17, 2008, Pridham filed an RCr 11.42 motion for post
conviction relief. Pridham claimed that his guilty plea was a product of ineffective
assistance of counsel. On October 24, 2008, the Hardin Circuit Court denied his
motion without a hearing. Quoting Commonwealth v. Padilla, the trial court’s
order provided:
As collateral consequences are outside the scope of the
guarantee of the Sixth Amendment right to counsel, it
follows that counsel’s failure to advise [his client] of
such collateral issue or his act of advising [his client]
incorrectly provides no basis for relief.
Id. at 484-85. (Internal citations omitted). This appeal follows.
II. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides the
right to competent counsel. U.S. Const. amend. VI. Defense counsel’s
performance is presumed competent unless the petitioner proves that counsel was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Criminal defendants
seeking post conviction relief must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pled guilty and would have instead
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985).
Pridham claims that his counsel’s gross misadvice
concerning parole eligibility fell outside the range of competent representation and
-3-
resulted in his decision to accept a plea agreement that he otherwise would not
have accepted.
III. The Effect of Padilla on Collateral Issues
The question of whether gross misadvice concerning parole
eligibility violates the Sixth Amendment right to counsel is neither new nor unique
to Kentucky courts. In Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988), the Sixth
Circuit U.S. Court of Appeals held that an affirmative act of gross misadvice
concerning parole eligibility could be grounds for post conviction relief. Id. at
885. Thereafter several unpublished, and thus non-binding, opinions of this Court
adopted the Sparks reasoning. In Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.
2008), the Kentucky Supreme Court held that erroneous advice concerning
collateral issues did not provide a basis for post-conviction relief.
Although Commonwealth v. Padilla did not involve a question of
parole eligibility but rather the risk of deportation faced by a criminal defendant
who was not a citizen but lived lawfully in the United States, the Kentucky
Supreme Court concluded that collateral consequences of a guilty plea are “outside
the scope of the guarantee of the Sixth Amendment right to counsel.” Id. at 485.
The U.S. Supreme Court reversed the Kentucky Supreme Court’s
decision in Commonwealth v. Padilla, and held:
[c]ounsel must inform her client whether his plea carries
a risk of deportation. Our longstanding Sixth
Amendment precedents, the seriousness of deportation as
a consequence of a criminal plea, and the concomitant
-4-
impact of deportation on families living lawfully in this
country demand no less.
Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1486, 176 L.Ed. 284 (2010).
In reaching this decision, the U.S. Supreme Court noted that it had
“never applied a distinction between direct and collateral consequences to define
the scope of constitutionally reasonable professional assistance under Strickland.”
Id. at ___, 130 S.Ct. at 1481. (Internal citation omitted). In Padilla, the Court
considered that deportation is “intimately related to the criminal process” and
“nearly an automatic result” following certain criminal convictions. Id. The Court
considered that deportation is a “drastic measure” which is the “equivalent of
banishment or exile.” Id. at ___, 130 S.Ct. at 1478, 1486. (Internal citation
omitted). The Court considered that the immigration statutes were “succinct, clear
and explicit” about the consequences of the defendant pleading guilty, so it was
“not a hard case in which to find deficiency.” Id. at ___, 130 S.Ct. at 1483.
The Commonwealth argues that the unique nature of deportation
limits the Padilla decision to only misadvice concerning the risk of deportation.
However, the Court in Padilla repeatedly cited with approval to its decision in Hill,
a case dealing with the Strickland standards in the context of misadvice regarding
parole eligibility. Moreover, the factors relied upon in the deportation context
apply with equal vigor to the circumstances of gross misadvice about parole
eligibility. Parole eligibility involves a foreseeable, material consequence of the
guilty plea that is “intimately related to the criminal process” and is an “automatic
-5-
result” following certain criminal convictions. Id. at ___, 130 S.Ct. at 1478, 1486.
The varying degrees of eligibility enumerated by the General Assembly in KRS
439.3401 are “succinct, clear and explicit.” KRS 439.3401 provides that “any
person who has been convicted of or pled guilty to the commission of . . . [a] Class
A felony”. . . is considered a “violent offender” for the purposes of the parole
statute. KRS 439.3401. The statute further states that, “[a] violent offender who
has been convicted of . . . a Class A felony with a sentence of a term of years . . .
shall not be released on probation or parole until he has served at least eighty-five
percent (85%) of the sentence imposed.” KRS 439.3401(3). Even though
Pridham’s Class A felony conviction (Manufacturing methamphetamine, 2nd
offense) would not be regarded by most as a violent offense, all Class A felonies
are treated equally for the purposes of parole eligibility. The parole classification
system is automatic upon conviction or guilty plea and permanently affects a
defendant’s minimum term of imprisonment.
While no criminal defendant has a right to parole, Land v.
Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999), parole eligibility is an integral
part of a criminal defendant’s decision to enter a guilty plea and is an issue that
impacts plea negotiations. Pridham alleges that he entered a guilty plea pursuant to
counsel’s advice under the belief that he would be eligible for parole after serving
20% of his 30 year sentence. The difference between 20% and 85% is substantial.
At 20% parole eligibility Pridham meets the Parole Board after serving 6 years of
his 30 year sentence. At 85% parole eligibility Pridham must serve 20 years before
-6-
he meets the Parole Board. This gross disparity may have affected Pridham’s
decision to plea guilty. Further, counsel’s erroneous advice or ignorance of this
vital statute clearly constitutes deficient representation.
In light of the decision in Padilla, we conclude that gross misadvice
concerning parole eligibility may amount to ineffective assistance of counsel
worthy of post-conviction relief. Because the trial court did not hold an
evidentiary hearing and issue findings of fact, we cannot determine whether
misadvice actually occurred in the case at hand or whether the requisite prejudice
resulted. Therefore, we remand this matter to the trial court with instruction to
hold an evidentiary hearing concerning Pridham’s allegations.
Accordingly, we reverse the Hardin Circuit Court order and remand
this matter to the circuit court for an evidentiary hearing.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Douglas P. Vowels
Brandenburg, Kentucky
Jack Conway
Attorney General
Brian D. Morrow
Assistant Attorney General
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.