DOUGLAS JAMES MANN v. COMMONWEALTH OF KENTUCKY

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RENDERED: March 26, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-001000-MR DOUGLAS JAMES MANN v. APPELLANT APPEAL FROM CLARK CIRCUIT COURT HONORABLE JULIA HYLTON ADAMS, JUDGE ACTION NO. 93-CR-00081 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING * * * * * * * * * * BEFORE: DYCHE, EMBERTON, and GARDNER, JUDGES. EMBERTON, JUDGE: Douglas James Mann appeals pro se from an order of the Clark Circuit Court denying his motion to vacate, set aside or correct judgment brought pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. We affirm. In December 1993, the Clark County Grand Jury indicted Mann on one felony count of rape in the first-degree and two felony counts of sexual abuse in the first-degree. In February 1994, Mann entered a guilty plea to all three counts pursuant to a plea agreement with the Commonwealth. Under the agreement, the Commonwealth recommended a sentence of fifteen (15) years on an amended count of first-degree rape1, and a one-year sentence on each of the two counts of first-degree sexual abuse with the oneyear sentences running concurrently with each other, but consecutively to the fifteen year rape sentence, for a total sentence of sixteen (16) years. After conducting a hearing, the trial court accepted the guilty plea. On March 24, 1994, the trial court sentenced Mann to serve sixteen (16) years in prison consistent with the recommendations of the Commonwealth. On March 12, 1998, Mann filed an RCr 11.42 motion challenging the validity of the guilty plea. On March 24, 1998, the trial court issued an opinion and order denying the motion on both substantive and procedural grounds. This appeal followed. Mann argues that his guilty plea was invalid because it was not entered knowingly, voluntarily, and intelligently as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and because he received ineffective assistance of counsel, Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Mann alleges that the trial judge failed to adequately determine that the plea was entered voluntarily because the judge did not sufficiently inquire into his mental or psychological history. He also alleges that his attorney did not adequately investigate the facts of the case. In addition to rejecting Mann’s substantive allegations, the trial court denied the motion as untimely. RCr 11.42(10) provides that: 1 The indictment originally charged Mann with rape of a victim under 12 years old, a Class A felony, but it was amended to rape by forcible compulsion, a Class B felony. -2- 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. 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. Mann pled guilty in February 1994 and was sentenced in March 1994. In March 1997, Mann filed a motion to obtain court records in which he sought a prompt response and noted the time limitations of RCr 11.42(10). However, he did not actually file his RCr 11.42 motion until March 12, 1998. Each of the grounds for vacating the conviction raised in the RCr 11.42 motion was readily apparent at or near the time of the plea, and he was aware of the three-year limitations period. Mann has not argued or demonstrated that his delay is justified under either of the two exceptions delineated in Subsection 10 of RCr 11.42. The alleged facts supporting the motion were not unknown to him, and -3- this is not a situation where the facts could not have been ascertained by the exercise of due diligence within the three year period following final sentencing. In addition, Mann has not raised an issue involving retroactive application of a fundamental constitutional right. Consequently, Mann’s RCr 11.42 motion is barred by the three year time limitations set forth in Subsection 10. For the foregoing reasons, we affirm the order of the Clark Circuit Court. ALL CONCUR. -4- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Douglas James Mann, Pro Se Eddyville, Kentucky A. B. Chandler III Attorney General Anitria M. Franklin Assistant Attorney General Frankfort, Kentucky -5-

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