NOT TO BE PUBLISHED

OPINION

STUMBO, Judge.

Wesley Anglin appeals from a Hardin Circuit Court order denying his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Because his motion was not timely filed, we affirm.

Anglin entered a plea of guilty to one count of complicity to first-degree burglary. Under the terms of the final judgment, entered on February 15, 2008, he received a sentence of thirteen years, probated for five years.

Anglin's probation was revoked on May 29, 2009. Almost two years later, on April 8, 2011, he filed a pleading styled "Motion to Appear in Court to Present Facts and Law," alleging that the probation revocation proceedings had violated his due process rights. Treating the motion as being made pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, the trial court rejected Anglin's argument that he was entitled to relief because his probation officer's testimony at the revocation hearing included hearsay, but concluded that there was evidence to support his allegation that the order revoking his probation was not properly served. On this basis, the trial court allowed Anglin to appeal his probation revocation. On March 15, 2013, a panel of this Court affirmed the order revoking his probation. Anglin v. Commonwealth, 2013 WL 1003500 (Ky. App. 2013) (2011-CA-001253-MR).

On January 15, 2013, Anglin filed a motion to vacate the final judgment and sentence pursuant to RCr 11.42, arguing that he received ineffective assistance of counsel during the guilty plea negotiations. Anglin alleged that his defense attorney informed him of a plea offer from the Commonwealth, consisting of an amended charge of complicity to commit second-degree burglary in exchange for the recommendation of a six-year sentence, conditioned on his co-defendant's acceptance of the offer. His attorney advised him that he did not believe the offer was advantageous, on the grounds that Anglin's youth (he was nineteen years of age at the time) would make the jury sympathetic to him, and that he would be convicted, at most, of complicity to commit third-degree burglary or a facilitation charge, and receive a maximum of five years probation.

Shortly thereafter, new defense counsel was appointed for Anglin. The new attorney advised Anglin that he had "no chance" at trial and should accept the next offer from the Commonwealth. Anglin contends that he would have preferred to accept the first offer.

The Hardin Circuit Court denied the motion as untimely and this appeal followed.

RCr 11.42(10) provides that "[a]ny motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:

Even though his RCr 11.42 motion was filed almost five years after the entry of the final judgment in his case, Anglin contends that he is entitled to relief under subsection (b) of the Rule because two recent opinions of the United States Supreme Court established a newly-recognized right to effective assistance of counsel during plea negotiations. See Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

For almost thirty years, Kentucky has recognized that the Sixth Amendment right to effective assistance of counsel extends to guilty plea proceedings. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). Neither Lafler nor Frye, the two cases relied upon by Anglin, extends that right in such a way as to establish a new fundamental constitutional right that is to be applied retroactively and would thereby justify relief under RCr 11.42(10)(b).

In Lafler, the Supreme Court held that a defendant has the right to effective assistance of counsel in considering whether to accept a plea bargain, and that if that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. Lafler, 132 S.Ct. at 1387. The Frye opinion holds that defense counsel has a duty to communicate formal plea offers to the accused, and if defense counsel allows an offer to expire without advising the defendant or allowing him to consider it, defense counsel has failed to render effective assistance. Frye, 132 S.Ct. at 1408.

There is widespread agreement in other jurisdictions that neither Lafler nor Frye announces a newly-recognized right or a new rule of constitutional law. As the Sixth Circuit Court of Appeals recently stated, "as held by every other circuit to consider the issue, neither Frye nor [Lafler v.] Cooper created a `new rule of constitutional law' made retroactive to cases on collateral review by the Supreme Court." In re Liddell, 722 F.3d 737, 738-39 (6th Cir. 2013) citing In re Graham, 714 F.3d 1181, 1183 (10th Cir. 2013) (per curiam); Gallagher v. United States, 711 F.3d 315, 315-16 (2d Cir. 2013) (per curiam); Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam); Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir. 2012); In re Perez, 682 F.3d 930, 933-34 (11th Cir. 2012) (per curiam).

Additionally, Anglin's claims regarding the alleged ineffectiveness of his defense counsel do not differ significantly from those our courts have addressed on numerous occasions long before the advent of Lafler and Frye. Notably, in Osborne v. Commonwealth, 992 S.W.2d 860 (Ky. App. 1998), an opinion rendered ten years before the entry of the final judgment in Anglin's case, a panel of our Court held that a defense attorney's alleged failure to act upon his client's desire to accept a plea offer from the Commonwealth could constitute ineffective assistance of counsel. Osborne, 992 S.W.2d at 863.

More recently, in Wright v. Commonwealth 2006 WL 335912 (Ky. App. 2006) (2005-CA-000258-MR), a panel of this Court addressed an ineffective assistance of counsel claim that is almost identical to Anglin's. Wright's first attorney informed him of a plea offer of a twenty-year sentence. Wright never told this attorney that he did not want to accept it, nor was he told of a deadline on the offer. His second attorney then told him that the current offer was twenty-six years. This offer was eventually reduced to twenty-five years, and Wright accepted it. Wright argued that counsel was ineffective in that he was denied the opportunity to accept the twenty-year offer by his first counsel, and forced to accept the twenty-five year offer by his second counsel. A panel of this Court, applying Osborne, agreed with him, vacated his twenty-five year sentence, and directed the trial court to provide him with the opportunity to enter a guilty plea to the original twenty-year offer.

Anglin appears to argue that Wright is not valid because it is not a published opinion. But Wright illustrates the point that our courts are fully prepared to apply the principles of Osborne. Furthermore, although they are not binding precedent, "unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court." CR 76.28(4)(c). Our case law is replete with other examples that predate Lafler and Frye . See e.g. Wade v. Commonwealth, 2011 WL 4502035 (Ky. App. 2011) (2009-CA-001821-MR) (appellant arguing that his trial counsel was ineffective for failing to timely respond to Commonwealth's initial plea offer, unpreserved for review but would otherwise have been considered); Hicks v. Commonwealth, 2011 WL 1327342 (Ky. App. 2011) (2009-CA-001617-MR) (appellant contends trial counsel was ineffective for twice failing to communicate to the Commonwealth that he wished to accept a plea offer); Nuckols v. Commonwealth, 2010 WL 1253496 (Ky. App. 2010) (2009-CA-000152-MR) (attorney failed to obtain guilty plea form in a timely manner and by the time he told the Commonwealth the appellant wanted to plead guilty, the offer had been withdrawn); Holland v. Commonwealth, 2009 WL 3400520 (Ky. App. 2009) (2008-CA-001410-MR) (contending he received ineffective assistance because his counsel failed to inform him of a plea bargain offer made by the Commonwealth whereby a count of first-degree PFO would be amended to second-degree PFO); Gordon v. Commonwealth, 2009 WL 1705587 (Ky. App. 2009) (2007-CA-002365-MR) (remanding for evidentiary hearing regarding appellant's claim that a plea offer was made by the Commonwealth, that counsel failed to convey the plea offer to him, and that he would have accepted the plea offer had he been informed).

Anglin nonetheless asserts that Bishop v. Commonwealth, 357 S.W.3d 549 (Ky. App. 2011), proves that our courts are not applying Osborne. But Bishop involves a significantly different factual situation: Following a trial, Bishop entered a guilty plea pursuant to an agreement plainly stating he waived his right to all appeals. The final judgment also stated that Bishop had waived his right to appeal. The opinion holds that Bishop was bound by the terms of the agreement and the judgment, because he entered into them knowingly and voluntarily, and that he was therefore precluded from raising claims of ineffective assistance of counsel that were not related to the validity of his guilty plea. We fail to see how this holding is a misapplication of Osborne.

Finally, we address Anglin's claim that the trial court erred when it stated in its order denying his motion that Anglin had "proceeded in the wrong order," in that he had already requested and been denied relief pursuant to CR 60.02. Anglin contends that he has never filed a CR 60.02 motion, and that his previous motions were styled "Motion to Appear in Court to present Facts and Law" and a "Motion to appear in Court to formally petition for a writ of habeas corpus." As part of its analysis regarding the timeliness of Anglin's RCr 11.42 motion, the trial court explained that under Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983), which sets forth the appropriate structure for attacking a final judgment, Anglin should have brought his RCr 11.42 motion first, before his later motions. We see no error in the trial court's analysis, although the later motions related to the probation revocation hearing and are not pertinent to the ineffective assistance of counsel claims.

We conclude that Anglin's motion was untimely because he failed to demonstrate what Lafler and Frye have added to our existing jurisprudence that would serve to create a claim for post-conviction relief that he could not have brought before the expiration of the three-year period specified by RCr 11.42(10). As the trial court aptly noted, not every case that applies an established rule to a set of particular facts recognizes a new constitutional right.

The order denying Anglin's RCr 11.42 motion is affirmed.

ALL CONCUR.