NOT TO BE PUBLISHED

OPINION

DIXON, Judge.

Charles Samuel McDonald appeals from an order of the Jefferson Circuit Court denying his motion made pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 to set aside his 1977 conviction and sentence for first-degree rape, indecent and immoral practices, and assault and battery. Because all of his issues were raised, or could have been raised in similar proceedings, we affirm.

On September 20, 1974, McDonald was indicted for rape (Kentucky Revised Statutes [KRS] 435.090), indecent and immoral practices (KRS 435.105), and assault and battery (KRS 431.075). A jury trial was held in July of 1977. A jury returned guilty verdicts on all three counts. McDonald was sentenced to five years for indecent and immoral practices; life without the possibility of parole for rape; and twelve months for assault and battery. The court ordered that the sentences be served concurrently. The Supreme Court of Kentucky affirmed the conviction on direct appeal, specifically rejecting McDonald's assertion that a penalty of life without parole constitutes cruel and unusual punishment. McDonald v. Commonwealth, 569 S.W.2d 134, 138 (Ky. 1978).

Thereafter, McDonald joined six other prisoners serving sentences of life without the possibility of parole in filing a Writ of Habeas Corpus. The prisoners contended that their continued incarceration without the right to parole violated the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 3 and 17 of the Kentucky Constitution. The Lyon Circuit Court granted the prisoners' petition and ordered their sentences commuted to ordinary life sentences. We reversed, reasoning that the prisoners were not entitled to Habeas relief under KRS 419.020, since they were not seeking immediate release from prison. The Supreme Court affirmed our decision on May 23, 1996. Fryrear v. Parker, 920 S.W.2d 519 (1996). Without addressing the merits of the prisoners' constitutional claims, the Court suggested that the proper procedure for relief was a motion to vacate made pursuant to CR 60.02.

In 1997, McDonald filed his motion pursuant to CR 60.02. 1998-CA-000618-MR. In his motion, McDonald again asserted that the continued enforcement of his sentence, denying him a parole hearing, amounts to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution. He further claimed that the enforcement of his sentence violates his constitutional rights under Sections 2 and 3 of the Kentucky Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. The Jefferson Circuit Court denied McDonald's motion and he appealed to this Court. In affirming the circuit court's denial, we cited the Supreme Court of Kentucky's decision in Land v. Commonwealth, 986 S.W.2d 440 (Ky. 1999), as dispositive of the issue. In Land, the Court held that the sentence of life without the possibility of parole, imposed for rape, under law in effect at the time of conviction, did not amount to cruel and unusual punishment or denial of equal protection and due process, despite changes in sentencing laws. In 2004, proceeding pro se, McDonald filed a second motion pursuant to CR 60.02, wherein he again challenged his sentence. The trial court denied that motion and we affirmed on appeal. 2004-CA-002168-MR.

McDonald, again proceeding pro se, filed his third motion made pursuant to CR 60.02 on April 14, 2014. The circuit court, without the benefit of an evidentiary hearing, denied McDonald's successive CR 60.02 motion, stating that the motion was improper because each issue could have been, should have been, or actually was asserted in earlier motions for post-conviction relief. This appeal followed.

McDonald raises three arguments on appeal: 1) the trial court did not have jurisdiction to sentence him because he was in custody 105 days before being indicted in violation of Kentucky Rules of Criminal Procedure (RCr) 5.22(2); 2) his sentence of life without the possibility of parole for rape is unconstitutional; and 3) the trial court failed to hold an evidentiary hearing.

CR 60.02 is available "to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered until after rendition of judgment without fault of the party seeking relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). "Relief should not be granted pursuant to CR 60.02 unless new evidence, if presented originally, would have with a reasonable certainty changed the results." Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). The trial court has the discretion on whether or not to grant relief under CR 60.02. Id. at 857. Thus, our review of the trial court's decision is an abuse of discretion standard and we will affirm that decision unless there is a showing of some "flagrant miscarriage of justice." Id. at 858.

McDonald first argues that the trial court lacked jurisdiction to sentence him because he was in custody well past the 60-day limit set forth in RCr 5.22(2) before he was indicted. As the Supreme Court of Kentucky has held:

Gross, 648 S.W.2d at 857 (emphasis added) (quoting RCr 11.42(2)).

McDonald's jurisdictional argument was clearly available to him at the time he was sentenced, and in any of his subsequent post-conviction actions. Therefore, he is precluded from raising this issue in a third CR 60.02 motion made thirty-seven years after his conviction. McDonald's next argues the constitutionality of his sentence. CR 60.02 and the legal framework for collateral appeals exist to grant relief based on issues that cannot be raised in other proceedings. See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); see also Gross v. Commonwealth, 936 S.W.2d 853, 856 (Ky. 1996). They also exist "to prevent the relitigation of issues which either were, should or could have been litigated in a similar proceeding." Stoker v. Commonwealth, 289 S.W.3d 592, 597 (citing to McQueen at 416).

McDonald's arguments regarding the alleged unconstitutionality and inequity of his sentence have already been litigated, and they are thus successive. The constitutionality of his sentence was first decided on direct appeal. Then, in McDonald's first CR 60.02 motion, this court decided the very issue McDonald now raises—the continued constitutionality of his sentence in the aftermath of the 1975 change to Kentucky law, which abolished the sentence of life without the possibility of parole as a possible punishment for rape. To the extent that McDonald's 2014 motion is again comprised of this constitutional challenge, it is impermissibly successive and we do not reach its merits.

Finally, McDonald argues that the trial court abused its considerable discretion when it denied his motion without conducting a hearing. We disagree. A hearing on the issues involved in a party's CR 60.02 motion is not always necessary. "[A] hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). However, if the record rebuts the moving party's allegations, a hearing on the CR 60.02 motion is not necessary. See Parrish v. Commonwealth, 283 S.W.3d 675, 677-678 (Ky. 2009). It is clear from the record that McDonald's claims either could have, or were, raised in prior post-conviction proceedings. Accordingly, we conclude that McDonald's claims in his present motion made pursuant to CR 60.02 were conclusively resolved on the face of the record and the trial court did not abuse its discretion in denying him a hearing.

For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.