Opinion
NO. 2015-CA-001179-MR
01-13-2017
LEONARD WARNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kieran J. Comer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 08-CR-003738 OPINION AND ORDER
DISMISSING APPEAL
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BEFORE: JONES, D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE: Leonard Warner appeals the Jefferson Circuit Court's order denying him post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42. After carefully reviewing the record, we affirm the order finding Warner's motion untimely and dismiss the appeal.
I. DISCUSSION
An indictment charging Warner with first-degree rape, first degree wanton endangerment, and fourth-degree assault was issued on December 18, 2008. On the scheduled day of trial, April 20, 2010, Warner entered into a plea agreement with the Commonwealth. Under the agreement, he pled guilty to first-degree sexual abuse, first-degree wanton endangerment, and fourth-degree assault in exchange for a recommended sentence totaling two years to serve or three years if probated. Warner was sentenced on June 8, 2010, to the agreed upon two years to serve.
After completing the required sex offender treatment program (SOTP), Warner was released from prison on November 2, 2012. Upon release, Warner was placed on Sex-Offender Conditional Discharge (SOCD), with a serve out date of November 2, 2017. In December of 2013, Warner was accused of fourth-degree assault against his wife. This new charge, along with the fact that Warner had failed to attend court-ordered drug treatment, formed the basis for the revocation of his post-incarceration supervision. Warner pled guilty to the new assault charge on April, 17, 2014, and was sentenced to serve 180 days in jail.
KRS 197.400 instructs the completion of SOTP by "sexual offenders." A "sex crime" is defined, in short, as "[a] felony offense defined in KRS Chapter 510, or KRS 530.020, 530.064(1) (a), 531.310, 531.320, or 531.335." KRS 17.500(8) (a).
KRS 532.043 requires "sexual offenders" serve an additional five years of post-incarceration supervision after completing their sentence.
On March 4, 2014, Warner filed a pro se motion pursuant to RCr 11.42 seeking to vacate his sentence. In his motion, Warner alleged that his trial counsel was ineffective for failing to notify him that he would be required to complete the five-year period of post-conviction supervision after his release from prison. The trial court appointed counsel who supplemented Warner's motion on September 19, 2014.
The trial court held an evidentiary hearing on Warner's motion on May 8, 2015. At the hearing, Warner called his trial counsel, Richard Nash III, as a witness. Nash testified that he advised Warner to accept the Commonwealth's offer of two years' imprisonment because the only sentence previously offered was a twenty-year sentence. Nash further stated he could not remember the specifics of the conversation he had with Warner, but noted that he would have discussed the various consequences of the guilty plea based on the nature of the charges.
Warner also testified at the evidentiary hearing. Warner testified that Nash never informed him that he would be required to complete five years of post-incarceration supervision. He stated that he did not know that post-incarceration supervision for sex offenders existed until he heard it from one of his fellow inmates approximately eighteen months into his sentence. Even then, Warner stated he did not believe that post-incarceration supervision applied to him. Warner further claimed that it was only upon his release that he discovered he would have to undergo five more years of supervision. According to Warner, had he known that he would be subject to the supervision, he would not have pleaded guilty and would have insisted on going to trial.
On May 11, 2015, the trial court entered an order dismissing Warner's motion as untimely filed. Regarding RCr 11.42(10) the trial court commented:
In truth, the rule is somewhat vague. Under the Court's reading of the rule a defendant learning of facts 35 months and 25 days after judgment has a mere week to contemplate, prepare, and file his or her motion. That hardly seems fair. But under Warner's reading of the rule, the same defendant, if apprised of the problem 36 months and a week after judgment, will have almost six years after the trial court otherwise lost jurisdiction to ask for relief. That seems unfair to the Commonwealth.Warner filed a motion to reconsider pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 on May 14, 2015. On July 13, 2015, the trial court entered an order denying Warner's motion to reconsider. It is from both the order dismissing his RCr 11.42 motion and from the order denying his motion to reconsider that Warner now appeals.
The Court concludes that the answer is that if a Defendant can show he could not file within three years because of delay in learning the facts, he will be allowed a reasonable time to file his motion. But a "reasonable time" is not a full three years.
II. STANDARD OF REVIEW
When a defendant enters a guilty plea, the test for ineffective assistance of counsel consists of two prongs. The burden falls on the defendant to demonstrate (1) that his trial counsel committed an error so serious that it fell below professional norms; and (2) that but for his trial counsel's error, there was a reasonable probability the defendant would not have accepted the plea and continued to trial. Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986); see generally Strickland v. Washington, 466 U.S. 668, 687 (1984)(watershed case explaining the elements of an ineffective assistance claim).
III. DISCUSSION
Pursuant to RCr 11.42(10), a motion for relief 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; orKentucky law further provides that a judgment of conviction is not final until judgment has been entered in the final appeal of the case. Palmer v. Commonwealth, 3 S.W.3d 763, 765 (Ky. App. 1999).
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
If 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. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.
Here, because there was no appeal taken, the trial court's judgment became final on June 8, 2010. Warner accordingly had until June 8, 2013, to file his RCr 11.42 motion. Warner filed his motion almost nine months late on March 4, 2014.
Nevertheless, Warner argues on appeal that his motion was timely under RCr 11.42(10)(a) since he did not learn until November 2012, when he completed his prison sentence, that he would have to undergo post-incarceration supervision. The Commonwealth counters by arguing that the exception does not apply when a petitioner knows of the basis of his claim well within the statute of limitations, but then sits on his rights and allows the statute to run. For the following reasons, the Commonwealth has the stronger position in this case.
This Court may not interpret a rule at variance with its stated language. AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 17 (Ky. App. 2002). And, RCr 11.42 (10)(a) unambiguously states that a motion under the rule must be filed within three years unless the movant proves the fact on which his motion is predicated was unknown and undiscoverable by the exercise of due diligence.
Here, notwithstanding the evidence that Warner learned about SOCD sooner, the trial court found that Warner was made aware of the post-incarceration monitoring program upon his release from prison in November 2012. Thus, he still had over half a year to file his 11.42 motion but chose not to. Instead, the trial court determined that Warner waited to file the motion until after he was taken into custody for his 2014 assault. Based on this finding, the trial court did not abuse its discretion in dismissing Warner's motion as untimely. RCr 11.42(10)(a) did not apply, and the trial court correctly surmised that it had lost jurisdiction to adjudicate the motion. Because we are similarly without jurisdiction, see Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007), Warner's appeal is hereby dismissed.
ALL CONCUR. ENTERED: January 13, 2017
/s/ Debra Lambert
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Kieran J. Comer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky