DAVID WAYNE PARKS v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

David Wayne Parks, pro se, appeals from an order of the Knox Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42.   We affirm.

In November 1988, Parks pled guilty to charges of murder and first-degree burglary.   Prior to sentencing, Parks unsuccessfully moved to withdraw his plea.   Thereafter, pursuant to the plea agreement, the court sentenced Parks to life without parole for twenty-five years on the murder charge and ten years' imprisonment on the burglary charge.   Parks appealed the denial of his motion to withdraw his guilty plea, and the Kentucky Supreme Court affirmed.^Double

In July 2001, Parks sought post-conviction relief pursuant to CR 60.02.   The trial court denied Parks's motion, and a panel of this Court affirmed.^Double Parks filed a second CR 60.02 motion in March 2006, which the trial court denied.   Thereafter, in August 2009, Parks filed an RCr 11.42 motion alleging he had been mentally incompetent at the time of his plea and that he had been intoxicated at the time of the crime.   The trial court denied Parks's motion, and this appeal followed.

We do not reach the merits of Parks's appeal because his motion was both untimely and successive.   An RCr 11.42 motion “shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves ․ that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence․”  RCr 11.42(10)(a).

In the case at bar, Parks filed his motion eighteen years after the Kentucky Supreme Court rendered its decision.   In denying the motion, the trial court noted that Parks's allegations regarding competency and intoxication could have been ascertained within the three-year limitation period prescribed by the rule.   Indeed, a review of the record indicates that the trial court addressed these issues during the guilty plea proceeding;  consequently, Parks should have been aware of the alleged errors and raised them in a timely manner.   After careful review, we conclude the trial court properly denied Parks's RCr 11.42 motion.

For the reasons stated herein, we affirm the order of the Knox Circuit Court.

ALL CONCUR.

DIXON, JUDGE: