DAVID W. GRIDER APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 08-CR-002359
BRIEFS FOR APPELLANT: Margaret Ivie Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
BEFORE: MOORE, NICKELL AND THOMPSON, JUDGES.
David W. Grider appeals from a Jefferson Circuit Court opinion and order denying his post-conviction motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We reverse and remand for further proceedings.
On August 7, 2008, in 08-CR-2359, Grider was indicted by a Jefferson County grand jury for first-degree robbery and possession of a handgun by a convicted felon. Subsequently, in 08-CR-2820, Grider was indicted for complicity to robbery in the first degree; complicity to burglary in the first degree; three counts of complicity to burglary in the second degree; and one count of complicity to burglary in the third degree. On February 12, 2009, Grider was indicted for being a persistent felony offender in the first degree (PFO-I).
In February 2009, the Commonwealth moved to sever the charges in 08-CR-2820 and proceed to trial only on Grider's first-degree robbery and first-degree burglary charges in addition to the PFO-I charge. At the conclusion of a jury trial, Grider was found guilty of complicity to first-degree burglary and PFO-I. The trial court sentenced Grider to twenty-years' imprisonment.
On September 8, 2009, Grider's trial counsel informed Grider that the Commonwealth offered him a twenty-year sentence in 08-CR-2359 to be served concurrently with his sentence in 08-CR-2820. Grider alleges he informed counsel that he would not accept an offer requiring him to plead guilty to a violent offense and serve a minimum of 85% of his sentence pursuant to the violent offender statute, Kentucky Revised Statutes (KRS) 439.3401. He alleges that he ultimately accepted a guilty plea but was unaware and not informed that his first-degree robbery conviction designated him as a violent offender.
On June 22, 2010, Grider filed a motion to vacate judgment pursuant to RCr 11.42 alleging that his trial counsel was ineffective for failing to advise that his guilty plea to first-degree robbery rendered him ineligible for parole until serving 85% of his sentence. The trial court summarily denied Grider's motion.
On appellate review of a claim of ineffective assistance of counsel, we are governed by the two-step test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a criminal case ends in a guilty plea and a defendant later alleges it was entered involuntarily, unintelligently, and unknowingly, a defendant must meet a modified two-part test to prove ineffective assistance of counsel. "He must show (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance as the counsel was not performing as counsel guaranteed by the Sixth Amendment and (2) that the deficient performance prejudiced the defense by so seriously affecting the process that there is a reasonable probability that the defendant would not have pled guilty, and the outcome would have been different." Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky.App. 1990).
We placed this case in abeyance pending final decisions by our Supreme Court in three cases related to ineffective assistance of counsel claims in the context of guilty plea proceedings. The Court's opinion in Stiger v. Commonwealth, 381 S.W.3d 230 (Ky. 2012), became final in November 2012. In a consolidated opinion final in April 2013, the Court decided Commonwealth v. Pridham, 2011-SC-000126-DG and Cox v. Commonwealth, 2010-SC-000733-DG. Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012).
In Pridham and Stiger, the Court addressed the United State Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the Court held that the failure to advise a client of the deportation consequences of a plea falls below prevailing professional norms, regardless of whether deportation is considered a direct or collateral consequence of the plea. The Court emphasized that deportation is intimately related to the criminal process and nearly automatic following certain criminal convictions. The immigration statutes were "succinct, clear and explicit" regarding the consequences of pleading guilty. Id. at __, 130 S.Ct. at 1482-1483.
In Pridham, the Court addressed an ineffective assistance of counsel claim in a factual situation similar to the present. Pridham alleged that counsel's assurance that Pridham would become eligible for parole upon completing 20% of his thirty-five sentence when, in fact, under the violent offender statute, he was ineligible for twenty years constituted ineffective assistance of counsel. The Court held that Pridham had stated a claim under Strickland and, in doing so, found certain language in Padilla persuasive. It reasoned that the extended period of parole ineligibility under the violent offender statute is like deportation in that it is punitive in nature and a ...