NOT TO BE PUBLISHED

OPINION

MOORE, Judge.

Thomas Tillman, proceeding pro se, appeals the Fayette Circuit Court's order denying his RCr1 11.42 motion to vacate, set aside, or correct his sentence. After a careful review of the record, we affirm because Tillman was not entitled to an evidentiary hearing regarding his RCr 11.42 claims and his claim that the circuit court erred in denying his motion to suppress because the officer illegally arrested him based upon a misdemeanor is not properly before us in this RCr 11.42 proceeding.

I. FACTUAL AND PROCEDURAL BACKGROUND

Tillman was indicted on charges of first-degree trafficking in a controlled substance and of being a second-degree persistent felony offender (PFO-2nd). His attorney moved to suppress "any and all oral, written or taped statements, and any and all physical evidence in this case" on the grounds that Tillman claimed "he was seized without probable cause, handcuffed and held in custody in violation of the rights afforded him by the Fourth and Sixth Amendments to the United States Constitution and Sections 10 and 11 of the Kentucky Constitution." The motion to suppress was denied by the circuit court.

Tillman moved to enter a conditional guilty plea to the amended charge of possession of a controlled substance and to the charge of PFO-2nd, conditioned on his right to appeal the circuit court's denial of his motion to suppress. The circuit court accepted his plea and sentenced Tillman to one year on the possession of a controlled substance charge, enhanced to five years by the PFO-2nd conviction. The court further suspended imposition of the sentence and placed Tillman on probation for five years, subject to certain conditions.

The Commonwealth subsequently moved for the court to revoke Tillman's probation on the grounds that he failed to report as directed; he failed to pay court ordered court costs; and he failed to pay court ordered supervision fees. The court denied the motion to revoke probation, but instead added another condition to his probation.

Tillman appealed the denial of his motion to suppress, and this Court affirmed. See Tillman v. Commonwealth, No. 2008-CA-000333-MR, 2009 WL 1424017, *1 (Ky. App. May 22, 2009) (unpublished). Specifically, this Court reasoned that Tillman was seized because the officer who seized him knew that there were outstanding warrants for Tillman's arrest. Id., at *2. Thus, this Court held that the seizure of Tillman was proper. Id.

The Commonwealth again moved the circuit court to revoke Tillman's probation, this time on the grounds that Tillman had been convicted of trafficking in a controlled substance — cocaine, and of being a first-degree persistent felony offender. The circuit court revoked Tillman's probation.

Tillman moved to vacate the judgment pursuant to RCr 11.42, claiming that he received the ineffective assistance of counsel when counsel failed to investigate his case and advise him of possible defenses. The circuit court denied Tillman's RCr 11.42 motion without holding an evidentiary hearing. In its order denying the motion, the court reasoned that Tillman had informed the court during his plea colloquy that, inter alia, he was satisfied with his attorney's representation of him and that his attorney had discussed with him his constitutional rights and all possible defenses.

Tillman now appeals, contending that: (a) the circuit court erred when it failed to grant an evidentiary hearing; and (b) the circuit court erred when it failed to order the suppression of the evidence in this case because the arresting officer improperly seized Tillman.

II. STANDARD OF REVIEW

In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.

III. ANALYSIS

A. EVIDENTIARY HEARING

Tillman first alleges that the circuit court erred in failing to hold an evidentiary hearing concerning his claim that he was illegally seized by the officer. He further claims that an evidentiary hearing should have been held because his counsel rendered ineffective assistance when counsel did not research his case for a proper defense for trial before advising him to enter his conditional guilty plea. He contends that he was illegally arrested, and his attorney should have argued this in the trial court. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."

Tillman alleges, inter alia, that he received the ineffective assistance of counsel.

Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks omitted).

Tillman was not entitled to an evidentiary hearing in the circuit court concerning his RCr 11.42 motion because all of the material issues of fact were able to be determined based upon a review of the record. Tillman's claim that he had been illegally seized by the officer was previously adjudicated on direct appeal and, therefore, it was not properly brought in his RCr 11.42 motion. His allegation that counsel rendered ineffective assistance when counsel did not research his case for a proper defense for trial was disproved by the circuit court's review of Tillman's plea hearing. During his plea hearing, both Tillman and his attorney acknowledged that the attorney had reviewed all possible defenses, including lesser included offenses, with Tillman prior to his entry of a guilty plea. Moreover, Tillman's claim that his attorney should have argued in the trial court that Tillman was illegally arrested is moot because the attorney did assert in the motion to suppress that Tillman was improperly seized and illegally arrested, and the denial of that motion to suppress was appealed to this Court. Therefore, the circuit court did not err in failing to hold an evidentiary hearing.

B. TRIAL COURT'S FAILURE TO SUPPRESS EVIDENCE

Tillman also asserts that the trial court erred when it denied his motion to suppress the evidence in this case due to the officer having arrested him for a misdemeanor because he claims he could not legally have been arrested for a misdemeanor. However, the trial court's denial of his motion to suppress was raised on direct appeal and, thus, the claim is not properly brought in this RCr 11.42 proceeding. Additionally, although Tillman did not argue on direct appeal that the officer could not legally have arrested him for a misdemeanor, this claim could have and should have been brought on direct appeal, and it is not properly before us in this RCr 11.42 proceeding.

Accordingly, the order of the Fayette Circuit Court is affirmed.

ALL CONCUR.