Opinion
NO. 2013-CA-001417-MR
01-30-2015
JURGEN NORTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jurgen Norton, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 08-CR-00285
OPINION AFFIRMING
BEFORE: CLAYTON, MAZE, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Jurgen Norton, pro se, appeals the Boone Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion including its failure to conduct an evidentiary hearing. Finding no error, we affirm.
Norton was indicted on one count of third-degree rape and one count of being a persistent felony offender in the second-degree. On July 17, 2008, he filed a motion to enter a guilty plea. Thereafter, pursuant to the Commonwealth's offer on a plea of guilty, Norton pled guilty to count one and received a sentence of five years, and also pled guilty to count two, which enhanced the sentence to ten years. In addition, the trial court probated the sentence for five years. On September 17, 2008, both the final judgment and an order setting conditions of probation were entered.
On September 24, 2009, after a revocation hearing, the trial court entered an order concerning Norton's probation. In the pertinent order, the trial court specified several probation violations by Norton including having contact with the minor victim of his crime. But, in lieu of revocation, the trial court ordered Norton to serve 200 days in jail and then resume probation. Nonetheless, on August 24, 2010, the trial court revoked Norton's probation and imposed sentence.
In June 2013, Norton filed an RCr 11.42 motion to vacate judgment and sentence. On June 25, 2013, the trial court denied the motion because it had not been timely filed. To timely file a motion, a party must file it within three-years of the final sentence. RCr 11.42(10). The trial court determined that the final judgment and sentence of imprisonment were entered on September 17, 2008, and, hence, Norton's RCr 11.42 motion, which was filed in 2013, was not timely.
According to the trial court, Norton was incorrect in arguing that the time did not begin to run until after the order revoking probation. Instead, the time runs from ten days after the imposition of the final sentence. The trial court relied on Bush v. Commonwealth, 236 S.W.3d 621 (Ky. App. 2007), and Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999), to support its legal reasoning. Norton responded with a motion to alter, amend, or vacate this order, which was also denied by the trial court on August 9, 2013. He now appeals from these orders.
On appeal, Norton maintains that the RCr 11.42 motion was timely filed. He argues that upon his imprisonment, after the revocation of his probation, he learned facts unknown to him until then. Further, Norton maintains that he could not have discovered these facts prior to his imprisonment even with due diligence. Therefore, Norton asserts that he has met the necessary requirement for an exception to the three-year time limitation for filing an RCr 11.42 motion. Moreover, Norton claims that his trial attorney's failure to tell him these facts underscores that he was provided ineffective assistance.
Second, Norton alleges that the trial court erred when it did not conduct an evidentiary hearing pursuant to his RCr 11.42 motion. Finally, Norton proffers that the trial court should not have made its ruling without receiving responsive pleadings from the Commonwealth's Attorney.
The Commonwealth counters that Norton received effective assistance of counsel, the denial of an evidentiary hearing was proper, and that it is not required to file a response to Norton's RCr 11.42 motion.
ANALYSIS
Regarding the statute of limitations for RCr 11.42 motions, the statute mandates that:
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; or (b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.Therefore, a motion to vacate must be filed within three years after the judgment becomes final or meet one of the two listed exceptions.
Clearly, Norton's RCr 11.42 motion, which was filed in 2013, was more than three years after his conviction in 2008. But Norton argues that the exception provided by RCr 11.42(10)(a) applies to his situation. He points out that under RCr 11.42(10)(a), tolling of the limitations period is permissible when "facts" were unknown and could not have been reasonably ascertained by the movant within the three-year period. Norton proffers that he was unaware of the following facts. First, he contends that his counsel advised him to enter a guilty plea to the ten-year sentence, and then the persistent felony offender II charge would be dropped. But at the commencement of Norton's sentence, he learned that he had received the maximum sentence. And he could not have known this information by the exercise of due diligence until he began serving the sentence.
Further, Norton alleges that he was not correctly informed about the mandatory conditional discharge upon completion of his sentence; and again, he could not have learned this information by the exercise of due diligence. If he had known both these facts, Norton now maintains he would have elected to have a trial. Lastly, Norton asserts that counsel's failure to provide this information amounted to ineffective assistance of counsel.
To meet the requirement for Norton's implicated exception to the three-year filing period, he must prove that the facts were unknown to him and that he could not have learned them through the exercise of due diligence. In fact, during his plea colloquy, Norton was informed that he was entering a guilty plea to the charges of third-degree rape and being a second-degree persistent felony offender. And he was informed that the sentence was for ten years probated to five years. Norton acknowledged on the record that he understood his sentence. Consequently, Norton's assertion that he did not know the parameters of his sentence is, at a minimum, disingenuous. This information was provided in court when he pled guilty.
Regarding Norton's assertion that he received incorrect information about the mandatory conditional discharge, the final judgment itself reflects that Norton was informed about the five-year conditional discharge under Kentucky Revised Statutes (KRS) 532.060(3). And at the sentencing, the trial court explicitly told Norton that he was subject to post-incarceration supervision. Again, his claim that he did not know this information is refuted by the record. Accordingly, Norton has not proven that the information was unknown. Hence, he does not qualify for the exception to the three-year time limitation found in RCr 11.42(10)(a). The trial court did not err in finding that his motion was untimely.
Since we have decided that Norton's RCr 11.42 motion was untimely, it is not necessary for us to address whether he received ineffective assistance of counsel. Nonetheless, we observe that when a defendant contends that a guilty plea is the result of ineffective assistance of counsel, the defendant must demonstrate not only ineffective assistance of counsel but also that "but for" the ineffective assistance, a guilty plea would not have been entered. Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). Our review of the trial court's factual findings is for clear error, and all legal issues are examined de novo. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998).
Here, after entering a guilty plea, Norton received a sentence of probation despite the fact that he pled guilty to third-degree rape, a serious offense, and being a persistent felony offender. Norton did not complain about the sentence until after he violated specific terms of his probation and had to serve the sentence. Then, he complained about the actions of counsel. We do not believe, under these circumstances, that Norton has established ineffective assistance of counsel, much less that he would have acted differently.
Next, Norton complains that the trial court erred when it denied the RCr 11.42 motion without holding an evidentiary hearing, which he maintains would have allowed him to prove his allegations. In Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), the Supreme Court of Kentucky discussed when a trial court is required to hold a hearing. When the allegations in the motion can be resolved on the face of the record, an evidentiary hearing is not required. Id. at 452. In the matter at hand, the motion could be resolved by the record and, thus, no hearing was necessary.
Finally, Norton claims that the trial court erred in dismissing his RCr 11.42 motion as untimely without receiving any responsive pleadings from the Commonwealth. Norton examines the language of RCr 11.42 for support of his position that the Commonwealth must file responsive pleadings to such a motion. In fact, RCr 11.42 does not require the Commonwealth to file a response nor for mandate that the trial court refrain from acting without such a pleading. Additionally, "[a] motion is not a pleading and no written response is required to entitle a party to oppose it." Ramsey v. Commonwealth, 399 S.W.2d 473, 475 (Ky. 1966)(citation omitted). The Commonwealth is not required to file a response, and the trial court did not err in denying Norton's RCr 11.42 relief. See Polsgrove v. Commonwealth, 439 S.W.2d 776 (Ky. 1969).
CONCLUSION
The statute of limitations in RCr 11.42 precludes the trial court from exercising jurisdiction outside the three-year period and, therefore, the trial court properly denied Norton's motion. The decision of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jurgen Norton, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky