WILLIAM BECKERMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
MARCH 31, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001303-MR
WILLIAM BECKERMAN
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 99-CR-00169
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
William Beckerman (Beckerman) brings this
appeal of an order of the McCracken Circuit Court, entered May
25, 2005, summarily denying his motion for relief pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42.
We affirm.
On July 23, 1999, Beckerman was indicted for operating
a motor vehicle while under the influence (DUI), fourth offense.2
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Seven months later, a superceding indictment was returned adding
the charge of first-degree persistent felony offender (PFO I).3
On May 29, 2001, Beckerman entered an unconditional4 guilty plea
to fourth-offense DUI, agreeing to the Commonwealth’s offer of
five years’ imprisonment to run consecutive to all other
offenses to which he had pleaded guilty including five years he
was currently serving in Missouri, with the PFO I charge
dismissed.
On June 1, 2001, judgment was entered and Beckerman
was sentenced consistent with his plea.
Just one month short of four years later, on May 10,
2005, Beckerman, through counsel, filed the RCr 11.42 motion
that underlies this appeal, claiming a lack of jurisdiction and
multiple instances of ineffective assistance of counsel.
He
also claimed that his motion was timely filed within the three
year time period set by RCr 11.42(10)(a).
Specifically, he
claimed that the three year time period for filing his RCr 11.42
motion commenced on November 19, 2002, when he began serving his
sentence on the instant judgment in Kentucky after having
previously been incarcerated in Missouri, and not on May 29,
2001,5 when final judgment was rendered.
He also requested an
2
Kentucky Revised Statutes 189A.010, class D felony.
3
Kentucky Revised Statutes 532.080.
4
Kentucky Rules of Criminal Procedure 8.08.
5
The Order and Judgment on Plea of Guilty, Final Judgment/Sentence of
Imprisonment became effective upon entry on June 1, 2001.
-2-
evidentiary hearing.
In summarily denying Beckerman’s motion,
the trial court found the claims time-barred.
This appeal
followed.
Before us, Beckerman claims that the trial court erred
in denying his RCr 11.42 motion 1) as time-barred, contending
that the three-year period commenced on the date that he started
serving his sentence in Kentucky; 2) as to proper jurisdiction;
and 3) as to ineffective assistance of counsel.
We review
questions of fact under the clearly erroneous standard of
Kentucky Rules of Civil Procedure (CR) 52.01 and questions of
law de novo.
See generally Brown v. Commonwealth, 40 S.W.3d
873, 875 (Ky.App. 1999).
As we conclude that the trial court’s
finding and conclusion that Beckerman’s RCr 11.42 motion was
time-barred are supported by substantial evidence and are not an
abuse of discretion, and the court correctly applied the law, we
affirm.
Pursuant to RCr 11.42:
(10) Any motion under this rule shall be
filed within three years after the judgment
becomes final.
Beckerman’s judgment became final upon entry on June 1, 2001.6
The filing of his RCr 11.42 motion on May 10, 2005, was, on its
face, almost a year beyond the three-year time limit.
6
As a judgment on an unconditional guilty plea, Beckerman did not appeal.
Pursuant to Palmer v. Commonwealth, 3 S.W.3d 763, 765 (Ky.App. 1999), a
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Of the two exceptions to three-year filing limit in
RCr 11.42(10), Beckerman argues that RCr 11.42(10)(a) applies,
“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.”
The basis for this exception is his claimed
inability to have access to Kentucky law based on his
incarceration in Missouri; his reliance upon appointed counsel’s
advice that he had no further avenues of relief; and his
ignorance of the avenue of RCr 11.42 relief until a February 5,
2005, decision in a Kentucky state habeas corpus action.
Since the filing of the briefs in this case, in
Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky. 2005), the
Kentucky Supreme Court has adopted the five-factor test
promulgated by the United States Court of Appeals for the Sixth
Circuit in Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th
Cir. 2001), “for determining whether equitable tolling is
applicable to an otherwise limitation-barred RCr 11.42 motion.”
The test involves an examination of (1) the petitioner’s lack of
notice of the filing requirement; (2) the petitioner’s lack of
constructive knowledge of the filing requirement; (3) diligence
in pursuing one’s rights; (4) absence of prejudice to the
respondent; and (5) the petitioner’s reasonableness in remaining
ignorant of the legal requirement for filing his claim.
judgment of the trial court for RCr 11.42 purposes becomes final when no
appeal is taken.
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According to Robertson, because Dunlap factors one, two, and
five are essentially incorporated within RCr 11.42(10)(a), the
primary considerations adopted from Dunlap are factors three
(diligence) and four (prejudice).
Although the factual issue in
Robertson is distinguishable from herein as it pertained to the
timely filing of an RCr 11.42 motion in the prison mail system
by an incarcerated inmate, it appears that Beckerman’s situation
can be similarly analyzed by the five-factor test.
The record before us refutes Beckerman’s claims.
Although Beckerman obtained counsel twice for the purpose of
filing shock probation7 motions, in the twenty-three months
between entry of final judgment on June 1, 2001, and April 29,
2003, Beckerman moved, pro se, for a free copy of his court file
for the purpose of filing post-conviction remedies; for removal
of his counsel, so that he could “seek other counsel to pursue
post-conviction remedies;” for appointment of counsel “to seek
post-conviction remedies;” for correction of a clerical error on
his final judgment;8 for custody credit; and for shock probation.
And, sometime before the circuit court entered an order denying
same on October 19, 2004, Beckerman filed a pro se petition in
7
Kentucky Revised Statutes 439.265.
8
The pro se motion for correction of a clerical error was granted and the
order amending same entered on September 6, 2002. This amended order,
however, had no effect on the timing of the final judgment, which remained
June 1, 2001. See generally United Tobacco Warehouse, Inc. v. Southern
States Frankfort Cooperative, Inc., 737 S.W.2d 708, 709-10 (Ky.App. 1987).
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state court for a writ of habeas corpus.
Four of his pro se
motions were made while he was incarcerated in Missouri.
Based on Beckerman’s actions, therefore, and looking
at Beckerman’s claims under the Robertson “equitable tolling”
analysis, it is difficult to conclude otherwise than that
Beckerman was sufficiently knowledgeable of the availability of
post-conviction remedies; able to access Kentucky law on postconviction remedies; and was diligent in pursuing postconviction remedies, despite his incarceration in Missouri.
As
the record refutes Beckerman’s allegations, there is no need for
an evidentiary hearing.
See generally Robertson, supra at 792;
Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
It is clear
that the finding of the trial court is supported by substantial
evidence, and the court correctly applied the law.
Given our conclusion that the trial court’s finding
and conclusion that the RCr 11.42 motion was time-barred is
correct, we need not address the remainder of the issues.
For the foregoing reasons, the order of the McCracken
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack W. Flynn
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
-6-
Robert E. Prather
Assistant Attorney General
Frankfort, Kentucky
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