NOT TO BE PUBLISHED

OPINION

COMBS, JUDGE.

Russell Benton Bush appeals from an order of the Warren Circuit Court denying the motions that he filed pursuant to Kentucky Rule[s] of Civil Procedure (CR) 60.02. Because the motions are procedurally barred, we affirm.

Bush was indicted on charges of burglary in the first degree, criminal attempt to commit rape in the first degree, and being a persistent felony offender (PFO) in the first degree. Pursuant to a plea agreement, Bush entered an Alford1 plea to amended charges of one count of burglary in the second degree and one count of attempted rape in the first degree — in exchange for a sentence of five years on each charge to run consecutively for a total sentence of ten years.

Relying on the terms of the violent offender statute in effect at that time, the Commonwealth's attorney stated that he would have to serve eighty-five percent of his sentence before he became eligible for parole. During the course of his plea colloquy, some confusion arose as to whether Bush would be eligible for parole after serving eighty-five percent or twenty percent of his sentence. After further discussion, however, the prosecutor and defense counsel agreed that a plea of guilty to the reduced charges would require service of only twenty percent of the sentence before parole eligibility. Bush decided to accept the plea agreement but reiterated that he was only doing so on the assumption that he would be parole-eligible after serving twenty percent of his sentence.

Bush's defense counsel informed the court that she had also explained to him that he would be required to register as a sex offender when he was released from prison and that he would have to complete the sex offender treatment program (SOTP) before he could be paroled. The court informed Bush that there was no guarantee that he would be released after serving twenty percent of his sentence and that it was likely he would have to serve the full ten years. Bush indicated that he understood these requirements. On July 19, 2004, Bush was formally convicted and sentenced in accordance with the plea agreement.

In a letter from the Corrections Program Administrator of the Community Services and Local Facilities Branch of the Kentucky Department of Corrections, Bush was later advised that as the result of an interview conducted on March 29, 2006, he was not deemed an appropriate candidate for SOTP. According to the letter, his ineligibility stemmed from the fact that he denied any sexual intent, motivation, or contact with his victim. Because he did not complete SOTP, Bush has never been eligible for parole.

On February 5, 2009, more than four years after the entry of the final judgment, Bush, pro se, filed a motion to vacate judgment pursuant to CR 60.02 and Kentucky Rules of Criminal Procedure (RCr) 11.42, claiming that his guilty plea was not knowingly, voluntarily, or intelligently entered. He argued that his defense counsel did not adequately advise him regarding the consequences of his plea; nor, he contended, did counsel fully investigate the circumstances of his case. The court appointed counsel, who filed a supplemental motion under CR 60.02, arguing that the terms of his plea agreement had been violated. The trial court denied the motions and this appeal followed.

We review the denial of a CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App. 2000). In order to warrant relief, a movant must show that the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principals." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Movant must also demonstrate that "he is entitled to this special, extraordinary relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983). Absent a "flagrant miscarriage of justice," we must affirm the decision of the trial court. Id. at 858.

On appeal, Bush argues that his plea was involuntary because he was misled by his attorney and by the court regarding his parole eligibility and that he only entered the plea on the understanding that he would be eligible for parole after serving twenty percent of his sentence.

The procedure provided in Kentucky for attacking a final judgment of a trial court in a criminal case is not haphazard and overlapping; rather, it is organized and stratified. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Bush's claims were all capable of resolution under Kentucky Rules of Criminal Procedure (RCr) 11.42.

Id. at 857.

If we were to treat Bush's motion as having been made pursuant to RCr 11.42, it was untimely because it was filed more than three years after the entry of the final judgment. Neither of the exceptions to this limitations period available under RCr 11.42 (10) is applicable in this case. Bush was bound to proceed by the timely filing of a motion pursuant to RCr 11.42. He did not do so, and he now seeks to invoke CR 60.02 instead, a procedure prohibited by established case law: "[t]he language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are `issues that could reasonably have been presented' by RCr 11.42 proceedings." Id. The trial court did not abuse its discretion in denying the motion.

We affirm the order of the Warren Circuit Court denying Bush's request for relief.

ALL CONCUR.