Opinion
NO. 2016-CA-000218-MR
05-12-2017
RONALD JUPIN JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Daniel L. Thompson Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. VanDeRostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 10-CR-00061 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. JONES, JUDGE: The Appellant, Ronald Jupin, Jr., brings this appeal from the Ohio Circuit Court's order denying his motion to vacate his sentence pursuant to RCr 11.42. Jupin argues that his counsel was ineffective for informing Jupin that he would be eligible for parole after he served twenty percent of his sentence. Because Jupin's motion is both untimely and without substantive merit, we affirm.
Kentucky Rules of Criminal Procedure.
I. Background
Jupin was apprehended following an investigation into sexual offenses involving a minor in Ohio County. He was indicted for one count of unlawful use of electronic means to induce a minor to engage in sexual activities, ten counts of first-degree indecent exposure, ten counts of distributing obscene matter to a minor, five counts of using a minor to distribute obscene material, ten counts of first-degree unlawful transaction with a minor, and ten counts of use of a minor in a sexual performance.
After negotiating with the Commonwealth, Jupin pleaded guilty to one count of unlawful use of electronic means to induce a minor to engage in sexual activities and one count of use of a minor in a sexual performance for a total recommended sentence of ten years. The trial court accepted the Commonwealth's recommendation and sentenced Jupin to five years' imprisonment for the first count and ten years' imprisonment for the second count, to run concurrently for a total of ten years' imprisonment. In exchange, the Commonwealth agreed to dismiss the remaining charges. Jupin alleges that his attorney assured him that he would be eligible for parole after serving twenty percent of his sentence.
With the assistance of counsel, Jupin filed an RCr 11.42 motion on September 14, 2015, asserting that he was misinformed by his counsel and the court concerning his parole eligibility date. Jupin alleged that "the offense of Use of a Minor Under 18 in Sexual Performance was and is designated as a violent offense under KRS 439.3401, meaning [Jupin] is not entitled to his statutory credit nor is he 20% parole eligible, instead being eligible after 85% of serving his sentence." The trial court held a hearing on Jupin's motion. Keith Decker, an assistant district supervisor for the Kentucky Department of Corrections (DOC), Division of Probation and Parole, testified that DOC records indicated Jupin met with the parole board on November 6, 2013, approximately two years and five months after Jupin was sentenced. Decker stated Jupin's parole eligibility had previously been listed at eighty-five percent, but his parole eligibility had been changed to twenty percent.
Kentucky Revised Statutes.
Jupin testified his attorney had informed him that he would be parole-eligible after serving twenty percent of his sentence, and did not inform him he would be pleading guilty to a violent offense. Jupin also noted that the Commonwealth's offer on his plea of guilty included handwritten language that he would be parole-eligible after serving twenty percent of his sentence. Following the hearing, the circuit court denied Jupin's motion.
This appeal followed.
II. Standard of Review
If a motion is brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (citation omitted).
III. Analysis
As a preliminary matter, we agree with the Commonwealth that Jupin's motion is time barred on its face. RCr 11.42 provides:
(10) 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:Id.
(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; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
The formal sentencing order was entered on May 25, 2011. Therefore, the three year period expired on May 25, 2014. Jupin did not file the instant RCr 11.42 motion until May 14, 2015. Jupin failed to allege any facts that would justify extending or tolling the limitation period. As such, Jupin's motion is time barred on its face.
Jupin filed a motion on May 15, 2013, requesting "that he be allowed to have his plea modified, and that he be sentenced according to the Plea Bargain Agreement reached between the parties and approved by the Court on his date of Final Sentencing." No mention of ineffective assistance of counsel is mentioned in this motion.
Although the trial court did not address the timeliness issue, we may affirm a lower court for any reason supported by the record. See McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009).
Even if the motion were timely, Jupin could not prevail. The heart of Jupin's argument is that he was misadvised by his counsel and the court regarding his parole eligibility and good time credit eligibility. While it is true that incorrect advice from counsel about parole eligibility can merit relief under RCr 11.42, Commonwealth. v. Pridham, 394 S.W.3d 867, 878 (Ky. 2012), the record belies Jupin's assertion that he was misadvised about his parole eligibility. Additionally, any misadvice Jupin received about good time credit was non-prejudicial.
Jupin pleaded guilty to use of a minor in a sexual performance, a Class C felony and unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities, a Class D felony. KRS 439.3401(1)(f) includes within the definition of "violent offender" the use of a minor in a sexual performance. However, under KRS 439.3401(3)(a), the provision requiring violent offenders to serve eighty-five percent of their sentences only applies to capital offenses, Class A felonies, and Class B felonies: "A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed." Id. Jupin was only convicted of Class C and Class D felonies, and so the provision requiring him to serve eighty-five percent of his sentence was inapplicable. See Kays v. Commonwealth, 505 S.W.3d 260, 273 (Ky. App. 2016).
We would also point out that before accepting Jupin's guilty plea, the trial court made the following statement on the record: "The Court is not making any representation that it's a 20 percenter or 15 percent or 85 percenter. Whatever it is, it is. Ok? You need to say yes or no." Jupin relied "Yes sir".
The only portion of the statute that relates to parole eligibility applicable to Jupin is subsection (4), which provides that: "A violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1." KRS 439.3401(4). Neither the plea agreement nor the colloquy with the trial court that occurred before Jupin pleaded guilty indicate that he was advised that he was eligible for good time credits. Moreover, given the number and gravity of the charges facing Jupin, it is simply not probable that any advice regarding good time credit would have caused him not to plead guilty. Pridham, 394 S.W.3d at 876. Jupin was facing up to seventy years of imprisonment, if convicted of four or more of the Class B felonies for which he was charged and given consecutive sentences. Jupin has not proffered any valid defenses to the charges that suggest he might have been inclined to take his chances at trial rather than to plead guilty without good time credit eligibility. Moreover, good time credits are not guaranteed. They are an earned benefit. As a previous panel of our court has recognized, "[i]ncorrect information about the possibility of a [speculative] benefit is not legally prejudicial . . . ." Upchurch v. Commonwealth, No. 2013-CA-000595-MR, 2014 WL 2159374, at *2 (Ky. App. May 23, 2014).
We cite this unpublished opinion as persuasive, not binding, authority. See CR 76.28(4)(c). --------
IV. Conclusion
For the foregoing reasons, we affirm the Ohio Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Daniel L. Thompson
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. VanDeRostyne
Assistant Attorney General
Frankfort, Kentucky