JASON VAN HOOK APPELLANT v. APPELLEE (2010)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Jason Van Hook appeals from an order of the Lincoln Circuit Court which denied his motions to set aside his judgment of conviction and sentence pursuant to Kentucky Rule(s) of Criminal Procedure (“RCr”) 10.26 and 11.42 and Kentucky Rule(s) of Civil Procedure (“CR”) 60.02.   Following a hearing, the trial court denied the motions because they raised issues which could have been presented in an earlier RCr 11.42 motion.   Consequently, the trial court concluded that the current motions were barred as successive and untimely.   Finding no error, we affirm.

The relevant facts of this case are as follows.   On December 3, 2001, a Lincoln County grand jury indicted Van Hook on one count of first-degree arson.   Prior to trial, the Commonwealth offered Van Hook a plea agreement of fifteen-years' imprisonment if he would plead guilty to second-degree arson.   Van Hook declined the offer and elected to proceed with trial.   After a jury trial, Van Hook was found guilty of first-degree arson and was sentenced to twenty-five years.   The Kentucky Supreme Court affirmed his conviction on direct appeal.  Vanhook v. Commonwealth, No.2003-SC-0003-TG (2004 WL 868487, not-to-be-published opinion rendered April 22, 2004).

Thereafter, on June 8, 2004, Van Hook filed a motion to set aside his conviction and sentence pursuant to RCr 11.42.   In the memorandum supporting his motion, Van Hook raised numerous allegations of ineffective assistance of counsel, including that his trial counsel “had not adequately researched the law regarding the violent offender statute.”   The circuit court denied Van Hook's motion on July 12, 2004, and no proper appeal was taken.

On April 3, 2009, Van Hook filed another motion to set aside his conviction and sentence pursuant to RCr 10.26 and 11.42 and CR 60.02.^Double Van Hook again complained that his trial counsel gave erroneous information concerning the application of the violent offender statute and his parole eligibility.   He specifically alleged that he relied on his trial counsel's advice regarding parole eligibility when he refused the plea agreement to second-degree arson.   The trial court found the transcript from the sentencing colloquy supported Van Hook's allegation.   Consequently, the court appointed counsel for Van Hook and scheduled an evidentiary hearing on the issue.

Following that hearing, the trial court entered an order denying Van Hook's motions on November 18, 2009.   Based on the record, the court found there was credible evidence to support his claim that trial counsel provided inaccurate and misleading information regarding his parole eligibility for the offense of first-degree arson.   Nevertheless, the court concluded that Van Hook failed to show sufficient grounds to set aside his conviction under RCr 11.42 or CR 60.02.   Since Van Hook had raised the issue in his prior RCr 11.42 motion, the trial court found that he was barred from raising it again in a successive motion.   For the same reasons, the trial court found that the motion was time-barred under RCr 11.42(3).   And since the issue reasonably could have been raised in the prior RCr 11.42 motion, the court also found that Van Hook was not entitled to relief under CR 60.02(f).  Van Hook now appeals to this Court.

When an evidentiary hearing is held in an RCr 11.42 proceeding, the trial court is required under RCr 11.42(6) to make findings on the material issues of fact, which we review under a clearly erroneous standard.  CR 52.01;  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001).   In this case, however, the trial court did not reach the merits of Van Hook's motion, concluding that it was barred as a matter of law.   Since the trial court's factual findings are at issue, we review the trial court's application of the law de novo.   See McQueen v. Scroggy, 99 F.3d 1302, 1310-1311 (6th Cir.1996).

However, we agree with the trial court's conclusion that Van Hook's motions were procedurally barred.   It is well established that the courts will not entertain successive RCr 11.42 motions where the grounds for holding the conviction invalid were known or should have been known to the petitioner at the time of the prior motion.  RCr 11.42(3);  Lycans v. Commonwealth, 511 S.W.2d 232 (Ky.1974).   Van Hook maintains that it would have been impossible to raise any issue regarding his parole eligibility for first-degree arson when he filed his first RCr 11.42 motion.   At the time of Van Hook's offense and his sentencing, the Violent Offender Act, Kentucky Revised Statute(s) (“KRS”) 439.3401(3) established that parole eligibility for violent offender sentences was service of 85% of the sentence imposed.   During the sentencing colloquy, both the prosecutor and defense counsel made explicit references which referred to Van Hook's conviction as a nonviolent offense.   In addition, Van Hook alleges that the Department of Corrections initially classified him as a nonviolent offender and did not reclassify him as a violent offender until April of 2007.   Consequently, he maintains that he could not have known of the error until 2007.

In his first RCr 11.42 motion, Van Hook alleged that his trial counsel misadvised him concerning his parole eligibility for second-degree arson.   He asserted that he refused the offer to plead guilty to the lesser charge because his trial counsel informed him that he would not be eligible for parole until he served 85% of his sentence.   As the trial court noted, Van Hook's prior argument contradicts his current assertion that his trial counsel improperly advised him that he faced a parole eligibility requirement of 20% even if he was convicted of first-degree arson.

Van Hook's first RCr 11.42 motion clearly establishes that he knew his counsel had not adequately researched the violent offender statute and had provided him with incorrect advice.   Even if he were unaware of exactly how the advice was incorrect, he had an obligation to pursue that claim in his first motion.   Since he failed to do so, he cannot raise the claim in a successive RCr 11.42 motion.  Hampton v. Commonwealth, 454 S.W.2d 672 (Ky.1970).

Furthermore, RCr 11.42(10) requires that a motion filed under this rule “shall be filed within three years after the judgment becomes final.”   The time for Van Hook to file this RCr 11.42 motion runs from the date an appellate court's judgment on direct appeal becomes final.  Palmer v. Commonwealth, 3 S.W.3d 763 (Ky.App.1999).   The Kentucky Supreme Court's opinion affirming Van Hook's conviction became final on May 13, 2004.   Van Hook filed his RCr 11.42 motion at issue herein on April 3, 2009, nearly five years after the Supreme Court's opinion became final.   Even if Van Hook's second RCr 11.42 motion were not barred as successive, it was untimely.

Likewise, Van Hook is not entitled to bring his current claim pursuant to CR 60.02.   A defendant who is in custody under sentence or on probation, parole, or conditional discharge is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the period when the remedy is available to him.  CR 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could “reasonably have been presented” by direct appeal or RCr 11.42 proceedings.  RCr 11.42(2);  Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983).   Van Hook is not entitled to relitigate issues which either were or could have been litigated in a similar proceeding.

Finally, we agree with the trial court that RCr 10.26 is not a proper vehicle to raise this claim.   That rule addresses the failure to preserve a trial error that affects the substantial rights of a party and permits review of an unpreserved error on appeal.   The rule does not afford a separate basis for relief under RCr 11.42 or CR 60.02.  Stoker v. Commonwealth, 289 S.W.3d 592 (Ky.App.2009).

Accordingly, the order of the Lincoln Circuit Court denying Van Hook's motions pursuant to RCr 10.26, RCr 11.42 and CR 60.02 is affirmed.

ALL CONCUR.

WINE, JUDGE: