Opinion
NO. 2010-CA-001928-MR NO. 2011-CA-000227-MR
01-18-2013
CHHON POK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND OUTH SANANIKONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT CHHON POK: Chhon Pok, pro se Burgin, Kentucky BRIEFS FOR APPELLANT OUTH SANANIKONE: Outh Sananikone, pro se West Liberty, Kentucky BRIEFS FOR APPELLEES: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 96-CR-00599
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER, AND MAZE, JUDGES. CLAYTON, JUDGE: There are two appeals from the denial of motions pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42. Based upon the following, we affirm the decisions of the trial court.
BACKGROUND INFORMATION
Appellant, Chhon Pok, was indicted on two counts of Murder, Assault First-Degree, Robbery First-Degree, and Burglary First-Degree. The Commonwealth announced that it would seek the death penalty based on his charges. Upon the advice of counsel, Pok pled guilty to two counts of Murder by Complicity, Assault First-Degree by Complicity, Robbery First-Degree and Burglary First-Degree after his co-defendants had already pled guilty. The Commonwealth recommended a life sentence for two counts of Murder by Complicity and twenty years on each remaining count to which Pok pled guilty.
On January 25, 2010, Pok filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to RCr 11.42. In his motion, Pok asserted that he had ineffective assistance of counsel prior to the entry of his plea and that he did not enter the plea knowingly, intelligently and voluntarily. He also contended that because the parole board recommended he serve out his life sentence, his sentence was thereby converted to a life sentence without the possibility of parole.
The trial court held that it did not have jurisdiction over the motion because it was not timely filed pursuant to RCr 11.42(10). Pok then brought this appeal, 2010-CA-001928-MR.
Appellant, Outh Sananikone, was indicted for Murder, Complicity to Murder, Robbery First-Degree, Complicity to Robbery First-Degree, Assault First-Degree, Complicity to Assault First-Degree, and Burglary First-Degree in October of 1996. On August 17, 2001, Sananikone pled guilty to Complicity to Murder, Robbery First Degree, Complicity to Assault First-Degree and Burglary First-Degree. He was sentenced to life on these charges.
On October 2, 2003, Sananikone filed a motion pursuant to RCr 11.42 which was supplemented by counsel on July 8, 2005. A Kentucky Rules of Civil Procedure ("CR") 60.02 motion was added with the supplemental memorandum. The trial court held an evidentiary hearing and subsequently denied both the motions. A panel of our Court affirmed the trial court's denial of Sananikone's motions on May 2, 2008. On January 9, 2009, Sananikone filed a second CR 60.02 motion asking the court to order the parole board to release him, that he have a mandatory parole hearing every twelve years or that he receive a new trial. The trial court denied this motion. Sananikone then brought this appeal.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 "motion is limited to [the] issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998), overruled on other grounds.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Pursuant to the holding in Strickland, supra, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. With respect to a guilty plea, there is also a requirement that the movant show that counsel's performance so seriously affected the case, that but for the deficiency, the movant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).
We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Therefore, we will affirm the lower court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
DISCUSSION
I. POK
Pok does not contend that the trial court erred in holding that his motion was not timely filed. RCr 11.42(10) provides, in relevant part, as follows:
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) 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; orIf the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule.
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
We affirm the decision of the trial court on this issue. While Pok also takes issue with his denial of parole, such is not the proper subject of an RCr 11.42 motion. We, therefore, affirm the decision of the trial court as to Pok.
II. SANANIKONE
Pursuant to his CR 60.02 motion, Sananikone contends that the standard for parole eligibility has changed and that, as a result, he is not eligible. He also contends that, under his plea agreement, he pled guilty to life in prison with eligibility for parole after twelve years and that the parole board's recommendation that he serve out his life sentence changed his plea agreement. Consequently, he moved the court to order the parole board to either order that he be released or that the board conduct parole hearings every twelve years. In the alternative, he argues, he should have a new trial.
As set forth in the trial court's denial of the motion, however, Sananikone does not have a right to parole. Neither the prosecutor, judge nor defense attorneys could predict whether Sananikone would receive parole. His trial counsel simply discussed with him his eligibility.
The trial court is correct in its assertion that Sananikone does not have a constitutional right to parole. The parole board's determination that he is not eligible is within its rights and within the framework of the plea agreement. Sananikone's contentions to the contrary are without merit and we affirm the decision of the trial court.
ALL CONCUR. BRIEFS FOR APPELLANT CHHON
POK:
Chhon Pok, pro se
Burgin, Kentucky
BRIEFS FOR APPELLANT OUTH
SANANIKONE:
Outh Sananikone, pro se
West Liberty, Kentucky
BRIEFS FOR APPELLEES: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky