Angela Montgomery v. State of Tennessee ( 2021 )


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  •                                                                                             09/22/2021
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    March 24, 2021 Session
    ANGELA MONTGOMERY v. STATE OF TENNESSEE
    Appeal from the Circuit Court for Rutherford County
    Nos. 80091, 69052 Royce Taylor, Judge
    ___________________________________
    No. M2020-00427-CCA-R3-PC
    ___________________________________
    The Petitioner, Angela Montgomery, was convicted in the Rutherford County Circuit Court
    of six counts of rape of a child and received an effective sentence of forty years in
    confinement to be served at one hundred percent. After this court affirmed the Petitioner’s
    convictions, she filed a petition for post-conviction relief, claiming that she received the
    ineffective assistance of trial counsel. The post-conviction court held an evidentiary
    hearing and granted relief. In this appeal by the State, the State contends for the first time
    that the post-conviction court lacked jurisdiction to consider the petition on its merits
    because the petition was untimely and that the post-conviction court incorrectly determined
    that the Petitioner received the ineffective assistance of trial counsel. Based upon the oral
    arguments, the record, and the parties’ briefs, we conclude that the case should be
    remanded to the post-conviction court to afford the Petitioner an opportunity to show
    whether the limitations period for filing the petition should be tolled based on due process
    concerns. Accordingly, the case is remanded to the post-conviction court for an evidentiary
    hearing on that issue.
    Tenn. R. App. P. 3 Appeal as of Right; Case Remanded
    NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,
    JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
    Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
    General; Jennings H. Jones, District Attorney General; and Hugh Ammerman, Assistant
    District Attorney General, for the appellant, State of Tennessee.
    John C. Taylor, Murfreesboro, Tennessee, for the appellee, Angela Montgomery.
    OPINION
    I. Factual Background
    In December 2012, the Rutherford County Grand Jury returned a forty-count
    indictment, charging the Petitioner with the following offenses: six counts of rape of a
    child in which the alleged victim was her son and eldest child, A.W.;1 six counts of rape in
    which the alleged victim was A.W.; one count of coercing or influencing a witness, A.W.;
    twelve counts of rape of a child in which the alleged victim was her daughter and youngest
    child, A.V.W; twelve counts of incest in which the alleged victim was A.V.W.; one count
    of coercing or influencing a witness, A.V.W.; one count of rape of a child in which the
    alleged victim was her son, J.W.; and one count of rape of a child in which the alleged
    victim was her son, M.W. 2 Before trial, the parties agreed that the Petitioner would be
    tried separately for each victim and that she would be tried first for the charges involving
    A.W. Her trial began on March 10, 2015. Prior to voir dire, the State entered a nolle
    prosequi for the charges of rape of A.W. and coercion of A.W. The Petitioner proceeded
    to trial on the six remaining counts of rape of a child.
    At trial, the then twenty-six-year-old victim testified that he was born in 1989; that
    he turned thirteen years old in 2002; and that he had three younger siblings: M.W., who
    was born in 1991; J.W., who was born with Down Syndrome in 1993; and A.V.W., who
    was born in 1996. In 1996, the victim’s father and the Petitioner began divorce
    proceedings. From 1999 to 2002, the victim and his brothers lived with their father but
    stayed with the Petitioner “every other weekend.” A.V.W., who was just three years old
    in 1999, lived with the Petitioner. The victim said that during that period of time, the
    Petitioner sexually abused him, and he described six incidents of sexual penetration. See
    State v. Angela Montgomery, No. M2016-00459-CCA-R3-CD, 
    2017 WL 3835962
    , at *3-
    5 (Tenn. Crim. App. at Nashville, Sept. 1, 2017). Specifically, the victim testified about
    the Petitioner’s having him put his fingers into her vagina on three separate occasions,
    performing fellatio on him on two separate occasions, and putting the tip of his penis into
    her vagina on one occasion. See 
    id.
     The abuse began when the victim brought home a
    permission slip for a sexual education class at his elementary school. 
    Id.
     The Petitioner
    told the victim that she was teaching him to have sex so that he would “‘know what sex is
    and how to have an adult relationship.’” 
    Id. at *6
    . The victim believed the Petitioner and
    thought “‘everybody [went] through this.’” 
    Id.
     The victim said that aside from the sexual
    abuse, the Petitioner was a “‘great mom.’” 
    Id. at *5
    .
    The victim testified that he told his stepmother about the abuse and that the
    Department of Children’s Services (DCS) began an investigation. 
    Id. at *6
    . The victim
    told DCS counselors that the Petitioner touched his penis but did not tell them the full
    1
    It is the policy of this court to refer to minors and victims of sexual crimes by their initials.
    2
    Due to the procedural nature of this case, we have taken judicial notice of the record from the
    Petitioner’s direct appeal of her convictions.
    -2-
    extent of her actions. See 
    id.
     The victim said that he told multiple other people about the
    abuse, including his stepbrother and a guardian ad litem, but that nothing was ever done.
    See 
    id.
     In 2008, the victim graduated from high school and moved to Kansas City, where
    he met his first girlfriend. 
    Id. at *7
    . He told his girlfriend about the abuse in late 2009,
    and the Murfreesboro police contacted him about an investigation in 2012. 
    Id.
    On cross-examination, the victim acknowledged telling a DCS counselor that
    nothing inappropriate ever happened with the Petitioner. 
    Id.
     The victim said he told the
    counselor that the allegations were false because the Petitioner had told him that she would
    go to jail if he revealed the abuse to DCS. 
    Id.
     He said that after he graduated from high
    school, he and M.W. briefly discussed the allegations and that both of them “expressed
    relief that the abuse had ended.” 
    Id.
     The victim denied telling M.W. or their paternal aunt
    that he made up the allegations. See 
    id.
    On redirect examination, the victim testified that he told his father about the abuse
    but that his father initially did not believe him. 
    Id.
     Eventually, the victim’s father thought
    he was telling the truth. 
    Id.
    The Petitioner testified that she began divorcing her children’s father in 1996. 
    Id. at *8
    . She said that in 1997, he was awarded custody of their three sons because she was
    a Jehovah’s Witness. 
    Id. at *8
    . A.V.W. ended up going to live with her father and brothers
    in 2003, and the Petitioner moved to Oregon in 2005 due to the victim’s allegations. 
    Id.
    In 2012, the Petitioner learned about a warrant for her arrest for rape of a child, returned to
    Tennessee, and turned herself in to law enforcement. 
    Id.
     On cross-examination, the
    Petitioner denied sexually abusing the victim and said that she loved her children. 
    Id.
     She
    said she thought the victim made up the allegations against her because he had been
    “‘manipulated’” by his father “‘all of these years.’” 
    Id.
    The victim’s paternal aunt testified for the Petitioner that in late 2010 or early 2011,
    the victim told her that “‘he wished he had never said those things about [the Petitioner]’”
    and that the allegations were “‘not true.’” 
    Id.
     M.W. testified for the Petitioner that when
    he was nineteen years old, he and the victim discussed the victim’s allegations and that the
    victim “expressed regret about ‘having to uphold the lies that [their father] told [the victim]
    to tell.’” 
    Id.
     M.W. acknowledged, though, that the victim never specifically said the
    allegations against the Petitioner were false. See 
    id.
     On cross-examination, M.W. testified
    that the Petitioner’s home was “pleasant and structured” and that he preferred living with
    her rather than his father. 
    Id.
     However, M.W. said that the Petitioner “‘ran a tight ship’”
    and that she would use her hand, a wooden spoon, or a switch to “‘spank’” her children.
    
    Id.
     M.W. said that he did not think the Petitioner “‘sexually molested or raped’” the victim
    and that he never saw the Petitioner behave in a manner that was consistent with the
    charges. 
    Id.
     The State questioned M.W. about prior statements he made to a therapist
    -3-
    regarding sexual abuse. 
    Id. at *9
    . M.W. claimed he did not remember making the
    statements. 
    Id.
    Linda Arbaugh-Patin, M.W.’s psychotherapist, testified on rebuttal for the State
    about statements M.W. made to her during their therapy sessions. M.W. told Ms. Arbaugh-
    Patin that he saw the Petitioner holding the victim’s “‘privates’” and “‘playing with’” the
    victim’s penis. He also told her that he saw the Petitioner and the victim “‘all hugged up
    with arms and legs wrapped around each other’” in bed and that the Petitioner tickled his
    own “‘private parts’” when he was eight or nine years old. 
    Id.
     M.W. expressed anger and
    frustration toward the Petitioner, telling Ms. Arbaugh-Patin that the Petitioner “‘denies
    everything’” even though “‘I have seen it with my own [eyes].’” 
    Id. at *10
    . He also told
    her that the Petitioner stopped touching his penis but started undressing in front of him
    when he was eleven years old and that she did not stop touching the victim or their brother,
    J.W. 
    Id.
     Ms. Arbaugh-Patin said M.W. claimed that the Petitioner and the victim slept
    together in the Petitioner’s bed and that the victim seemed to enjoy sleeping with Petitioner.
    
    Id.
     M.W. also claimed that the Petitioner used to sleep with A.V.W. but that the Petitioner
    stopped sleeping with her and slept only with the victim, which M.W. thought was
    “‘weird.’” 
    Id.
    The victim’s girlfriend testified on rebuttal for the State that the victim revealed the
    sexual abuse to her when she attempted to perform oral sex on him. 
    Id. at *11
    . She said
    the victim “‘freaked out’” and told her that the Petitioner “‘would do stuff . . . like oral
    sex.” 
    Id.
     At the conclusion of her testimony, the jury found the Petitioner guilty of six
    counts of rape of a child as charged in the indictment. 
    Id.
     After a sentencing hearing, she
    received a twenty-year sentence for each conviction with partial consecutive sentencing
    for an effective sentence of forty years to be served at one hundred percent. 
    Id.
    On direct appeal of the Petitioner’s convictions to this court, she claimed, in relevant
    part, that the evidence was insufficient to support the convictions due to “‘inconsistencies’”
    in the victim’s testimony and that the trial court erred by allowing Ms. Arbaugh-Patin to
    testify about statements made by M.W. 
    Id. at *11, 13
    . This court found that the evidence
    was sufficient and that Ms. Arbaugh-Patin’s testimony was admissible as prior inconsistent
    statements to impeach M.W.’s credibility. 
    Id. at *12, 14
    .
    The Petitioner did not file an application for permission to appeal to our supreme
    court but filed a pro se petition for post-conviction relief in which she claimed that she
    received the ineffective assistance of trial counsel. Relevant to this appeal, the Petitioner
    asserted that trial counsel should have called her daughter, A.V.W., to testify because “[t]he
    record of [A.V.W.’s] ever changing statements about alleged acts of abuse showed
    indications of coaching. Had [A.V.W.] been allowed to testify she could have offered
    clarification to the varying statements and possibly refuted testimony from either [the
    -4-
    victim] or [M.W.].” The petition does not bear a file-stamp date, but the Petitioner stated
    in the petition that she was delivering it to prison authorities for mailing on September 18,
    2018. The petition reflects that she signed it in the presence of a notary on that date.
    The post-conviction court appointed counsel, and post-conviction counsel filed an
    amended petition. In the amended petition, the Petitioner maintained that trial counsel
    “failed to investigate and advance the testimony of certain witnesses,” including A.V.W.
    At the evidentiary hearing, the Petitioner testified that she moved to Portland,
    Oregon, in 2005. The trial court appointed lead trial counsel to represent her in 2012, and
    most of their communication occurred on the telephone. The Petitioner awaited trial for
    three years but did not have much “phone contact” with lead trial counsel during that time.
    She estimated that she spoke with lead counsel or co-counsel ten times and said that she
    would not speak with them for five or six months. The State made plea offers to the
    Petitioner, and trial counsel told her about the offers. However, the Petitioner had questions
    about the offers that trial counsel were not able to answer “clearly.” For example, the
    Petitioner wanted to know if she could serve her probation in Oregon, if she could keep her
    job there, and if she could pursue obtaining guardianship of J.W. Trial counsel’s inability
    to answer the Petitioner’s questions about the plea offers affected her decision to go to trial.
    The Petitioner said that the sexual abuse allegations had been made against her for “many,
    many years” and that “[t]he truth was always revealed” but that trial counsel “seemed like
    they were more interested . . . in just getting some kind of plea.”
    The Petitioner testified that the weekend before trial, she met with trial counsel
    about four hours to prepare for her trial testimony. Her husband, her mother, her former
    sister-in-law, and M.W. also were present. The Petitioner told trial counsel that A.V.W.
    could offer important testimony for the defense, but trial counsel did not call A.V.W. to
    testify. The Petitioner said that her children “knew that this never happened” and that the
    victim and A.V.W. even talked about trying to avoid the trial by going to Arizona. A.V.W.
    was in the courtroom during the trial, and trial counsel knew she was present.
    On cross-examination, the Petitioner acknowledged that trial counsel were available
    if she wanted to “reach out” to them by telephone. She also acknowledged that she had
    been charged with sexual abuse offenses involving A.V.W. and that A.V.W. was not
    present during the meeting for trial preparation.
    A.V.W. testified that she offered to testify for the Petitioner and that she was in the
    courtroom for the Petitioner’s trial. She said that if trial counsel had called her to testify,
    she would have told the jury that the victim was making up the allegations against the
    Petitioner because their father “told us exactly what to say and who to say it to all our lives.
    So, I know his position.” She said the victim was not credible because “I grew up with
    -5-
    him. Or I grew up with my mom with him around all the time. So, I would have absolutely
    known if it was going on or not.” A.V.W. stated that she and her siblings had “no choice
    because of dad” and that the victim decided to “just stick with it” at trial. A.V.W. told the
    victim, “I can’t do that.”
    A.V.W. testified that she heard the victim deny the allegations “[m]any times” in
    private conversations away from their parents. Other people, including M.W. and their
    paternal aunt, also heard the victim deny the allegations. A.V.W. acknowledged that M.W.
    was truthful and credible at trial. She said that she would have been “terrified” to testify
    for the Petitioner but that she would have done so because the Petitioner’s “life was on the
    line.”
    On cross-examination, A.V.W. testified that she was eighteen years old at the time
    of the Petitioner’s trial and twenty-three years old at time of the evidentiary hearing.
    A.V.W. met with the assistant district attorney one time to prepare for trial. The victim
    also was present. A.V.W. acknowledged that she never told the prosecutor the allegations
    were untrue. A.V.W. explained that at that time, she had “just come out of foster care,”
    that she was “still terrified” of her father, and that her father was present at the district
    attorney’s office during her meeting with the prosecutor. A.V.W said she was not honest
    with the prosecutor because “I had no other options. I was being blackmailed the entire
    time.” She stated that by “blackmailed,” she meant that her father had told her that the
    Petitioner was going to obtain guardianship of J.W. A.V.W. did not want to be separated
    from J.W., so she did what her father told her to do and did not reveal the truth. A.V.W.
    said that she had wanted to tell the prosecutor the truth but that she was afraid “it would
    get back to [her] dad.”
    A.V.W. identified two statements she wrote in 2012, containing allegations of
    sexual abuse by the Petitioner against A.V.W. and J.W. A.V.W. also gave video-recorded
    statements about the abuse to the police. A.V.W. began seeing Ms. Arbaugh-Patin when
    A.V.W. was seven years old. The victim was fourteen years old, and M.W. was twelve
    years old. A.V.W. acknowledged that the three of them gave consistent statements about
    the abuse to the therapist. She explained, “We were all told what to say in the same room
    before we went in. We had it down pretty pat.” A.V.W. said that their father would talk
    to Ms. Arbaugh-Patin “before our session and afterwards to see what we said to her to see
    what he needed to say to us.”
    A.V.W. testified that the sexual abuse allegations were her stepmother’s idea and
    that A.V.W.’s father “kind of followed through with it.” A.V.W. said that one time, she
    spoke with a different psychologist and told the psychologist that her stepmother had
    “slapped” M.W.’s face and had cut his cheek. When A.V.W.’s stepmother found out, she
    “beat” A.V.W., and A.V.W. never saw that psychologist again. A.V.W. stated, “So, I
    -6-
    learned very quickly not to actually tell the truth about what was really going on with me.”
    A.V.W. acknowledged that even after the Petitioner’s trial, A.V.W. did not contact the
    police or anyone at the district attorney’s office to report that the allegations were not true.
    A.V.W. said that she had been in contact with the Petitioner “throughout” the Petitioner’s
    incarceration and that she spoke with post-conviction counsel one or two months before
    the evidentiary hearing. On redirect examination, A.V.W. testified that if trial counsel had
    called her as a witness at trial, she would have felt “safe enough to explain why we even
    said this in the first place” and that she would have “set the record straight.”
    Upon being questioned by the post-conviction court, A.V.W. testified that she went
    into foster care after a fight in her father’s home when she was sixteen years old. A.V.W.
    told people in foster care that her father shaved her head and “was beating on us.” She said
    that at that time, she was “just a complete wreck” because she was “terrified of the trial
    coming up.” She stopped eating, pulled out her hair, and threatened to kill herself. She
    stated that she needed a mother when she was growing up and that “it would be really nice
    to have [the Petitioner] in my life without having to pay to talk to her.” A.V.W. said that
    she had not spoken with the victim since 2015 and that she had not spoken with her father
    in several years.
    M.W. testified that he met with trial counsel “no longer than 10 minutes” the day of
    the Petitioner’s trial and that trial counsel told him, “[H]ere is how we’re going to angle
    your defense. You were a kid. You don’t remember anything. And that’s what I want you
    to say . . . I do not recall to everything that the Prosecution asks you.” Therefore, when the
    State began impeaching M.W., he was afraid to “speak [his] mind” and could not say “what
    actually took place” during his counseling sessions with Ms. Arbaugh-Patin. M.W. said
    that his father and stepmother drove him and his siblings to their counseling sessions with
    Ms. Arbaugh-Patin, that his father and stepmother “sat outside the door the entire session,”
    and that the children did not know if their father and stepmother could hear them speaking
    with the therapist. M.W. said that he and his siblings did not feel “safe and comfortable”
    and that they “basically just confirm[ed]” what their father and stepmother had already told
    Ms. Arbaugh-Patin. The children knew they had to go home with their father and
    stepmother, so they did what they had to do to “keep peace at home.” M.W. stated,
    “Because if we didn’t, all hell would break loose.” M.W. said that he did not lie at the
    Petitioner’s trial but that “I just didn’t elaborate as much as I could have, because my legal
    counsel told me not to.”
    Patrick Montgomery, the Petitioner’s husband, testified that the Petitioner met with
    trial counsel on Monday afternoon before her Tuesday trial in order to prepare for trial.
    Mr. Montgomery was present for part of the meeting. He said trial counsel “were more
    interested in a plea than a trial.” The Petitioner told trial counsel, “I’m not going to plead
    guilty for something that I didn’t do.”
    -7-
    Lead trial counsel testified that he had been licensed to practice law for twenty years,
    that he had worked for the public defender’s office for eighteen or nineteen years, and that
    he was appointed to represent the Petitioner. At the time of the Petitioner’s trial, she was
    living in Oregon. The Petitioner came to Tennessee for court dates, and she and lead trial
    counsel discussed the case in person. They also talked about the case over the telephone,
    but the Petitioner and lead trial counsel mainly talked about the case “face-to-face.” The
    Petitioner could telephone lead trial counsel if she needed to speak with him.
    Lead trial counsel testified that the Petitioner received plea offers from the State,
    that he communicated the offers to her, and that he “felt she was clear on what the offer
    was and what the circumstances were and what her exposure was.” Lead trial counsel said
    that he even “typed it out, . . . what her offer was, what probation was, what diversion was,
    all of that. We wrote that out and went over it with her more than once, I’m sure.” The
    Petitioner and trial counsel discussed what would happen if she received a sentence
    involving probation, and the Petitioner knew that she would have to go to prison if the jury
    convicted her at trial.
    Lead trial counsel testified that at some point, A.V.W. made “allegations” against
    her father. She was put into a group home and sent a message to lead trial counsel through
    her family that she wanted to talk with him “about what happened.” Lead trial counsel said
    that he and co-counsel went to Kentucky to speak with A.V.W. “because she’s evidently
    wanting to talk to us about the trial.” When they met with her, though, “all she would say
    is that everything I have told the detectives is true.” Trial counsel then stated as follows:
    And I asked her, well, why did you want me to come up here just to
    tell me that? Because we have driven up here to get whatever it is you want
    to say. And she said over and over, everything I have said about my mother
    is true.
    So, calling her as a witness at trial was not an option. She showed up
    during the trial. Not before it. We never had a chance to prepare her. And
    we would not have prepared her. We would not have called her as a witness.
    Lead trial counsel acknowledged that the discovery in the Petitioner’s case was
    “voluminous” and included video-recorded interviews of A.V.W. and handwritten
    statements in which A.V.W. “detail[ed] specific allegations” of sexual abuse by the
    Petitioner. Lead trial counsel also acknowledged that he made a strategic decision not to
    call A.V.W. to testify.
    -8-
    Lead trial counsel testified that he and co-counsel “divided up the witnesses” and
    that they prepared each witness individually. Co-counsel prepared M.W. to testify. Lead
    trial counsel said that he and co-counsel had worked together on other cases and that neither
    of them had ever told a witness to answer every question by the prosecutor with “I do not
    recall.”
    On cross-examination, lead trial counsel testified that the victim had recanted his
    allegations in the past. Lead trial counsel also learned that A.V.W. had recanted her
    allegations to an attorney in Kentucky. The Kentucky attorney had been appointed as
    guardian ad litem for J.W., who was disabled. Lead trial counsel spoke with the attorney,
    and the attorney “confirmed” that A.V.W. had recanted her allegations. About one month
    before the Petitioner’s trial, lead trial counsel filed a motion to continue the trial so that the
    attorney could testify for the Petitioner.3 However, the attorney was “never . . . willing to
    come testify” or help the defense. Lead trial counsel noted that A.V.W.’s allegations had
    “gone back and forth” and that her recantation to the attorney was “not the only time she
    recanted her testimony or changed her story by any means.”
    Lead trial counsel acknowledged that the Petitioner told him that A.V.W. was able
    and willing to testify. Lead trial counsel did not attempt to talk with A.V.W. again, though,
    because “[w]e had already made the decision she was not going to be called. . . . [Her]
    position changed daily almost. And it was just impossible to predict what she would testify
    to.” Lead trial counsel said that M.W.’s “position . . . was always the same. He had
    recanted, it never happened, they had made it up.” In contrast, “there was no way to know
    what [A.V.W.] was willing to do and what she wasn’t willing to do.” Therefore, even
    though M.W. and A.V.W. were both willing to testify for the Petitioner, the defense called
    only M.W. Lead trial counsel acknowledged that the State ended up impeaching M.W.
    with his counseling records. Lead trial counsel said co-counsel would not have advised
    M.W. to lie.
    On redirect examination, lead trial counsel testified that he and co-counsel went to
    Kentucky to meet with A.V.W. “well before the trial.” At that time, A.V.W. was living in
    a children’s group home. Prior to living there, trial counsel could not speak with her
    because she was living with her father. During trial counsel’s meeting with A.V.W. in
    Kentucky, employees from Kentucky DCS also were in the room.
    Lead trial counsel acknowledged that at trial, the victim admitted recanting his
    allegations of sexual abuse. Therefore, trial counsel could not introduce extrinsic proof of
    3
    Post-conviction counsel introduced the motion to continue into evidence at the evidentiary
    hearing. According to the motion, lead trial counsel thought the attorney’s testimony would be “absolutely
    necessary” to rebut A.V.W., who was on the State’s witness list.
    -9-
    his inconsistent statements. M.W. denied making inconsistent statements, so the State was
    able to impeach him with his statements to Dr. Arbaugh-Patin.
    On recross-examination, lead trial counsel testified that Tennessee Detectives
    Tommy Roberts and Wayne Lawson also were present during trial counsel’s meeting with
    A.V.W. in Kentucky. The detectives were not in the interview room but were “listening
    or something.” Lead trial counsel stated, “It was clear that [A.V.W.] knew they were
    there.” A.V.W. told lead trial counsel that everything she said to the police was true.
    Post-conviction counsel introduced into evidence an affidavit prepared by the
    Kentucky attorney who was appointed as guardian ad litem for J.W. In the affidavit, which
    was signed by the attorney in February 2020, the attorney stated as follows: In 2011, he
    was appointed to prepare a report regarding J.W. because J.W.’s father and the Petitioner
    were both seeking guardianship and conservatorship of the seventeen-year-old child. The
    attorney “consulted all pleadings and documentation” related to the Petitioner’s divorce
    from J.W.’s father and interviewed witnesses, including the Petitioner, A.V.W., M.W., and
    J.W.’s father and stepmother. The attorney then prepared s report in which he stated that
    J.W.’s father had made numerous accusations of sexual abuse against Petitioner. The
    attorney concluded in the report that “‘these accusations border on caricature and none of
    these accusations appear to have been substantiated.’” The attorney recommended in the
    report that the Petitioner be appointed as J.W.’s guardian and conservator.
    The post-conviction court filed a written order in which it granted the petition for
    post-conviction relief, concluding that trial counsel’s “failure to adequately investigate the
    possibility of an exculpatory witness fell well below the reasonable standard of practice
    that must be afforded.” The post-conviction court noted that the State’s case “came down
    to a credibility determination” between the victim and M.W. The court then stated,
    As the only real defense to the allegations was one child denying the
    testimony of the other child, counsel fell well below reasonably effective
    assistance by not ascertaining what the third child who had also recanted the
    same allegations would have testified to at trial. Counsel’s initial
    investigation was wholly lacking. [Lead trial counsel] did not revisit the
    witness outside the view of the detectives to whom the minor child had
    spoken to while under the direct influence of the father; counsel did not
    interview the child after she reached the age of majority; finally, counsel
    failed to interview the witness at the Petitioner’s insistence that [A.V.W.]
    testify when [A.V.W.] had reached the age of majority, and was no longer
    dependent on the father or the foster system. “Defense counsel must
    investigate all apparently substantial defenses available to the defendant and
    must assert them, in a proper and timely [manner],” and in this case, counsel
    - 10 -
    failed to do so. [Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975) (quoting
    Beasley v. United States, 
    491 F.2d 687
     (6th Cir. 1974) (emphasis added))].
    Thus, the post-conviction court determined that trial counsel were deficient. Regarding
    prejudice, the post-conviction court stated that “[h]ad [A.V.W.] been available to testify,
    to attack the credibility of [the victim] along with [M.W.], it is wholly probable the jury
    would have found in favor of the Petitioner.” The post-conviction court, which also
    presided over the Petitioner’s trial, stated that its confidence in the outcome of the case had
    been sufficiently undermined and, therefore, concluded that the Petitioner received the
    ineffective assistance of trial counsel.
    II. Analysis
    The State contends that the post-conviction court should have summarily dismissed
    the petition for post-conviction relief and that the post-conviction court erred by
    considering the petition on its merits because the petition was untimely. The State also
    contends that the post-conviction court incorrectly determined that the Petitioner received
    the ineffective assistance of trial counsel. The Petitioner argues that the State has waived
    the statute of limitations issue because the State failed to raise it in the lower court and, in
    the alternative, that she is entitled to an evidentiary hearing to determine the circumstances
    surrounding the untimely filing and whether due process tolled the statute of limitations.
    The Petitioner also argues that the post-conviction court correctly ruled that she received
    the ineffective assistance of trial counsel. The State responds that the post-conviction
    statute of limitations is not an affirmative defense that can be waived and that the Petitioner
    is not entitled to an evidentiary hearing because she did not allege facts in her petition that
    would justify due process tolling. We conclude that based on the unique circumstances of
    this case, an evidentiary hearing regarding the statute of limitations is warranted.
    Tennessee Code Annotated section 40-30-102(a) provides, in pertinent part, that a
    petition for post-conviction relief must be filed within one year of the date on which the
    final action of the highest state appellate court to which an appeal was taken. “Given the
    post-conviction statute’s language conferring jurisdictional import to the timely filing of a
    petition, it is essential that the question of timeliness be resolved before any adjudication
    on the merits of the petitioner’s claims may properly occur.” Antonio L. Saulsberry v.
    State, No. W2002-02538-CCA-R3-PC, 
    2004 WL 239767
    , at *1 (Tenn. Crim. App. at
    Jackson, Feb. 9, 2004) (citing Tenn. Code Ann. § 40-30-102(b) (2003)).
    Here, this court filed its opinion affirming the Petitioner’s convictions on September
    1, 2017. The Petitioner did not file a Rule 11 application for permission to appeal to our
    supreme court. Therefore, she had until September 1, 2018, to file a petition for post-
    conviction relief. See Tenn. Code Ann. § 40-30-102(a); Dedrick Wiggins v. State, No.
    - 11 -
    W2020-00095-CCA-R3-PC, 
    2020 WL 7233127
    , at *2 (Tenn. Crim. App. at Jackson, Dec.
    8, 2020) (recognizing that the statute of limitations for filing a petition for post-conviction
    relief begins to run when this court files its direct appeal opinion if the petitioner does not
    file an application for permission to appeal to the Tennessee Supreme Court). According
    to the pro se petition, the Petitioner submitted it to prison authorities for mailing on
    September 18, 2018. In the petition, the Petitioner stated that her petition was timely
    because the one-year statute of limitations did not begin to run until the sixty-day period
    for filing an application for discretionary appeal to our supreme court expired, which was
    October 31, 2017. See Tenn. R. App. P. 11(b). However, the sixty-day time period for
    filing a Rule 11 application for permission to appeal does not toll the statute of limitations.
    See State v. Kevin Womack, No. W2013-02288-CCA-R3-PC, 
    2014 WL 5502426
    , at *2
    (Tenn. Crim. App. at Jackson, Oct. 31, 2014). Thus, the petition was untimely. The statute
    of limitations for filing a post-conviction petition is jurisdictional; therefore, it is not an
    affirmative defense that must be asserted by the State. See Tenn. Code Ann. § 40-30-
    102(b); State v. Nix, 
    40 S.W.3d 459
    , 464 (Tenn. 2001). Accordingly, we conclude that the
    State has not waived the statute of limitations as a defense.
    Despite the one-year statute of limitations, a post-conviction court may still consider
    an untimely petition if (1) a new constitutional right has been recognized; (2) the
    petitioner’s innocence has been established by new scientific evidence; or (3) a previous
    conviction that enhanced the petitioner’s sentence has been held to be invalid. Tenn. Code
    Ann. § 40-30-102(b). This case does not fall within those three exceptions.
    A court may also consider an untimely petition if applying the statute of limitations
    would deny a petitioner due process. Burford v. State, 
    845 S.W.2d 204
    , 209-10 (Tenn.
    1992). Specifically, our supreme court has identified the following three circumstances in
    which due process requires tolling the statute of limitations: (1) when the claim for relief
    arises after the statute of limitations has expired; (2) when the petitioner’s mental
    incompetence prevents compliance with the statute of limitations; and (3) when the
    petitioner’s attorney has committed misconduct. 
    Id. at 623-24
    . Our supreme court has
    explained that
    [a] petitioner is entitled to due process tolling upon a showing (1) that he or
    she has been pursuing his or her rights diligently, and (2) that some
    extraordinary circumstance stood in his or her way and prevented timely
    filing. . . . [T]he second prong is met when the prisoner’s attorney of record
    abandons the prisoner or acts in a way directly adverse to the prisoner’s
    interests, such as by actively lying or otherwise misleading the prisoner to
    believe things about his or her case that are not true.
    - 12 -
    In terms of diligence, courts have recognized that due diligence “does
    not require a prisoner to undertake repeated exercises in futility or to exhaust
    every imaginable option, but rather to make reasonable efforts. . . . Moreover,
    the due diligence inquiry is an individualized one that must take into account
    the conditions of confinement and the reality of the prison system.”
    Whitehead v. State, 
    402 S.W.3d 615
    , 631 (Tenn. 2013) (citations omitted). As this court
    has explained,
    [I]f we conclude that a post-conviction court did not have jurisdiction to
    consider a petition for post-conviction relief because it was untimely and due
    process did not require the tolling of the statute of limitations, this Court must
    dismiss the appeal even if the State did not raise the statute of limitations,
    and the post-conviction court treated the petition as timely.
    Stephen Willard Greene v. State, No. E2005-02769-CCA-R3-PC, 
    2007 WL 1215022
    , at
    *5 (Tenn. Crim. App. at Knoxville, Apr. 25, 2007).
    In Ugenio Dejesus Ruby-Ruiz v. State, No. M2017-00834-CCA-R3-PC, 
    2018 WL 1614054
    , at *1 (Tenn. Crim. App. at Nashville, Apr. 3, 2018), this court affirmed the
    petitioner’s judgments of conviction, and the petitioner filed an untimely application for
    permission to appeal to our supreme court. The petitioner also filed a motion to accept the
    late-filed application, but the supreme court declined to waive the time limit and dismissed
    the application. 
    Id.
     Subsequently, the petitioner filed a pro se petition for post-conviction
    relief and a motion to late-file the petition. 
    Id.
     The post-conviction court concluded that
    the petitioner’s post-conviction petition was timely because it was “‘filed within the statute
    of limitations based on ‘the Tennessee Supreme Court's denial of the [P]etitioner’s Rule 11
    application.’” 
    Id.
     The post-conviction court then addressed the petitioner’s claims of
    ineffective assistance of counsel and entered an order denying relief. 
    Id.
     On appeal, the
    parties did not address the statute of limitations issue and whether due process required
    tolling. 
    Id. at *3
    . This court, noting that the issue was not raised at the evidentiary hearing,
    concluded that the petition was untimely. 
    Id.
     However, this court further concluded that
    based on the record before the court, it was unable to determine whether due process
    required tolling. 
    Id.
     Therefore, this court remanded the case to the post-conviction court
    for a determination of the issue. 
    Id.
    We agree with the reasoning of the Ruby-Ruiz court that “[w]hat ramifications, if
    any, appellate counsel’s representation may have had on the issue of the statute of
    limitations awaits further development of the record before the post-conviction court.” 
    Id. at *3
    . In this case, the Petitioner filed her pro se petition for post-conviction relief just
    seventeen days after the statute of limitations expired. The post-conviction court, the State,
    - 13 -
    and the Petitioner proceeded as if the petition were timely, and the post-conviction court
    addressed the petition on its merits. Moreover, this case is unique in that the post-
    conviction court granted post-conviction relief. If we summarily dismiss the petition, the
    Petitioner will have to serve an effective forty-year sentence at one hundred percent when
    the post-conviction court has determined that she received the ineffective assistance of
    counsel at trial. The effective assistance of counsel has been said to be “a defendant’s most
    fundamental right.” Hellard v. State, 
    629 S.W.2d 4
    , 7 (Tenn. 1982) (citing United States
    v. Butler, 
    504 F.2d 220
    , 223 (D.C. Cir. 1974)). Therefore, we conclude that under the
    unique facts of this case, the Petitioner should at least be afforded an opportunity to develop
    the record further so that the post-conviction court can determine whether the limitations
    period should be tolled based on due process concerns. Accordingly, we remand this case
    for an evidentiary hearing. If the post-conviction court determines that the Petitioner has
    failed to carry her burden of proof as to tolling, then the post-conviction court must dismiss
    the petition for lack of jurisdiction.
    III. Conclusion
    Based upon the oral arguments, the record, and the parties’ briefs, the case is
    remanded to the post-conviction court for further proceedings consistent with this opinion.4
    _________________________________
    NORMA MCGEE OGLE, JUDGE
    4
    Because we have ordered an evidentiary hearing, we will not address the issue of ineffective
    assistance of trial counsel at this time.
    - 14 -