NOT TO BE PUBLISHED

OPINION

LAMBERT, JUDGE.

Thomas E. Boggan, Sr., appeals from an order of the Boone Circuit Court denying his motion to vacate a judgment of conviction pursuant to a guilty plea and sentence pursuant to Kentucky Civil Rules of Procedure (CR) 60.02(e) and (f). After careful review, we affirm the order of the Boone Circuit Court.

In May 2006, Boggan was indicted on two counts of first-degree rape and two counts of third-degree rape for events which allegedly occurred in the spring of 2005. Boggan entered a plea of not guilty, and the case proceeded to trial in June 2008. At that time, one of the third-degree rape charges was dismissed on the Commonwealth's motion. After presentation of the evidence and arguments by counsel, the case was submitted to the jury. During jury deliberations, the Commonwealth made a plea offer, which provided that in exchange for a guilty plea, it would amend the two first-degree rape charges to third-degree rape, and Boggan would be sentenced to five years' imprisonment on each of the three rape charges, with the sentences to run concurrently. So, Boggan would ultimately be sentenced to five years for all the charges.

Initially, Boggan did not want to accept the plea offer because he had maintained his innocence for over two years and had presented his case to the jury. Boggan's counsel, however, advised him to accept the plea offer. Boggan alleges that his counsel advised him that his five-year sentence would carry a 20% parole eligibility requirement and that after serving 20% of his sentence, Boggan would automatically be paroled with good behavior. Boggan alleges that his counsel failed to advise him that Kentucky Revised Statutes (KRS) 197.410 required him to complete a sexual offender treatment program (SOTP) before he would be eligible for parole. Boggan claims he was never informed prior to entering his plea deal that he would have to serve 100% of his sentence unless he completed the SOTP program under KRS 197.410. Boggan was also subsequently informed that since he only had a five-year sentence, it was highly unlikely that he would be able to enroll in and complete the SOTP class due to the short duration of his sentence.

Ultimately Boggan accepted the plea deal. After learning the above details about his parole eligibility and required SOTP completion, Boggan filed a pro se motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 to vacate his conviction and sentence. In this motion, Boggan alleged that his attorney failed to present DNA evidence and that his counsel improperly rushed him into signing the plea agreement. By order entered April 2, 2009, the trial court denied Boggan's RCr 11.42 motion. Boggan subsequently filed additional grounds for RCr 11.42 relief, but the trial court denied relief upon these additional grounds in May 2009. Boggan did not appeal this order.

In April 2011, Boggan filed this CR 60.02 motion, alleging that his attorney rendered deficient performance which prejudiced him by failing to pursue a writ of prohibition regarding the trial court proceeding to trial before allowing the production of proper, uncontaminated DNA test results. He also sought to vacate his conviction based upon the alleged misadvice regarding his guilty plea. By order entered July 21, 2011, the trial court denied Boggan's CR 60.02 motion, holding that the allegations raised therein were the same issues previously decided in his RCr 11.42 motions and were therefore barred from relitigation. Boggan now appeals.

The standard of review concerning a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996); Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). CR 60.02 relief is not available for grounds that could have been raised or were raised in a direct appeal, RCr 11.42 proceedings, or previous CR 60.02 proceedings. Gross, 648 S.W.2d at 856.

Boggan argues that the trial court abused its discretion by denying his CR 60.02 motion without conducting an evidentiary hearing. Additionally, Boggan argues as he did below that he received ineffective assistance of counsel when his counsel failed to file a writ of prohibition to prohibit the trial court from going forward without certain alleged DNA results and because his attorney provided him with incorrect parole information.

The Commonwealth argues, and we agree, that this is Boggan's third bite at the apple and he has presented these same arguments via his RCr 11.42 motions. The trial court noted in its order denying the CR 60.02 motion, "[t]he Court finds that the issues raised by the Defendant in the instant motion were previously addressed in the Defendant's prior RCr 11.42 motions and therefore the Defendant is barred from relitigating the same issues under CR 60.02(e) and (f) under Gross and McQueen. Id." Furthermore, a hearing was not warranted, as the trial court noted that when Boggan argued his RCr 11.42 motion, the trial court determined that defense counsel had stated on the record during the plea colloquy that he made no representations as to parole eligibility. Finally, in its analysis of the RCr 11.42 motions, the trial court also determined based on the record that the DNA results were thoroughly litigated.

Because Boggan failed to present new arguments justifying his motion to vacate his sentence under CR 60.02, the trial court did not abuse its discretion by denying the motion. Accordingly, we affirm the July 21, 2011, order of the Boone Circuit Court.

ALL CONCUR.