Victor Gonzalez, Jr. v. State of Tennessee ( 2014 )


Menu:
  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs December 11, 2013
    VICTOR GONZALEZ, JR. v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Sumner County
    No. 83-2013    Dee David Gay, Judge
    No. M2013-01341-CCA-R3-PC - February 28, 2014
    The petitioner, Victor Gonzalez, Jr., appeals the dismissal of his petition for post-conviction
    relief, arguing that the post-conviction court should have found that due process
    considerations tolled the statute of limitations for filing his petition. Following our review,
    we conclude that the post-conviction court properly dismissed the petition on the basis that
    it was filed outside the one-year statute of limitations and the petitioner failed to show any
    reason for the statute of limitations to be tolled. Accordingly, we affirm the judgment of the
    post-conviction court dismissing the petition.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
    C AMILLE R. M CM ULLEN, JJ., joined.
    Lawren B. Lassiter (on appeal) and Jon J. Tucci (at hearing), Gallatin, Tennessee, for the
    appellant, Victor Gonzalez, Jr.
    Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
    Lawrence R. Whitley, District Attorney General; and Bryna Landers Grant, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    On June 2, 2011, the petitioner pled guilty in the Sumner County Criminal Court to
    seven counts of aggravated statutory rape, a Class D felony, in exchange for consecutive
    sentences of two years as a Range I, standard offender for each offense, with 180 days to
    serve followed by supervised probation. Among the special conditions listed on the
    petitioner’s judgment form was the warning that the petitioner was to have no contact with
    the victim, the victim’s home, the victim’s family, or the victim’s place of employment and
    that the State would seek “to impose if [petitioner] violates for any reason.”
    On the day after the entry of his guilty pleas, the petitioner telephoned the victim’s
    home, which resulted in his being served with a probation violation warrant. One portion of
    the hearing on the probation violation warrant was held November 7, 2011, while the final
    portion was held on May 22, 2012. In the interim, the hearing was reset a number of
    different times, apparently to accommodate the travel arrangements for one or more out-of-
    state witnesses and to allow time for transcripts of the previous hearings to be prepared for
    the defense counsel who was appointed after the petitioner’s original probation revocation
    counsel withdrew from representation. At the conclusion of the May 22, 2012 hearing, the
    trial court revoked the petitioner’s probation and ordered that he serve his sentences in the
    Department of Correction as originally imposed.
    On January 25, 2013, the petitioner filed a pro se petition for post-conviction relief
    in which he raised a number of claims, including ineffective assistance of counsel and
    involuntary and unknowing guilty pleas. Post-conviction counsel was appointed, and an
    evidentiary hearing was held on May 22, 2013, on the petitioner’s claim that due process
    considerations should toll the statute of limitations. At the hearing, the petitioner testified
    that he was an inmate at the Sumner County Jail from January 25, 2011 until July 19, 2012.
    He said he was violated from his probation because he attempted to telephone his wife, who
    lived at the victim’s home, on the day following the entry of his guilty pleas. He testified that
    he did not become aware of his post-conviction rights until November 2011 when one of his
    fellow jail inmates told him about it and informed him that he had to obtain the paperwork
    for filing the petition from his lawyer. However, when he was finally able to get in touch
    with the lawyer who had been appointed to represent him on his probation violation, counsel
    told him that he could not file a post-conviction petition while his probation violation case
    was pending.
    The petitioner testified that he was transferred on July 19, 2012, from the Sumner
    County Jail to the Morgan County Correctional Complex for classification, where he
    remained for approximately 86 days, spending much of the time either in lockdown or being
    transferred back and forth to special needs for medical evaluation, before finally being
    transferred to his current placement at the Whiteville Correctional Facility. While at the
    Morgan County Correctional Complex, he asked an older inmate who worked in the law
    library what he needed to do with respect to his post-conviction petition. According to the
    petitioner, that “inmate lawyer” informed him that he should file his paperwork for his post-
    conviction petition after he reached his final destination. The petitioner said he filed his
    original post-conviction petition in November 2012 but never received a reply. He claimed
    -2-
    he had copies of his return receipt mailing but was unable to bring them to the hearing
    because the Department of Correction had lost his belongings. He testified that he re-filed
    his petition in late November/early December 2012, but agreed that it was date stamped as
    filed on January 25, 2013.
    On cross-examination, the petitioner testified that he was in the “transit pod,” without
    access to the law library or jail house lawyer, for the first few weeks following his October
    2012 transfer to the Whiteville Correctional Complex. He acknowledged that, according to
    his Sumner County jail records, he first asked for post-conviction petition forms on June 6,
    2012, approximately eight months after he learned of his right to file a post-conviction
    petition. He reiterated, however, that he was operating under the belief that he could not file
    his post-conviction petition while his probation violation case was still pending.
    On redirect examination, the petitioner testified that he asked for an appeal through
    the resident grievance jail system on the day after his probation. He explained that, to him,
    requesting an appeal meant that he was requesting “a post-conviction to go back and start the
    case over because [he] wasn’t represented to . . . the best ability of the lawyer.” While in the
    Sumner County Jail, he did not have access to law books or legal forms.
    Upon questioning by the post-conviction court, the petitioner insisted that when he
    referred in his resident request report to wanting to file an appeal, he was referring to a post-
    conviction petition rather than an appeal of the court’s probation revocation ruling, because
    he knew that there was “no way for [him] to beat the violation” and that there would be no
    point to an appeal. The petitioner acknowledged that he had lied to the trial court at the
    guilty plea hearing when he said that he was satisfied with the representation of his trial
    counsel and was voluntarily and knowingly entering his guilty pleas. He explained his
    behavior by stating that he had not known what to do at that time because the instant case
    was his “first time ever getting in any trouble.” Finally, he testified that it had taken him
    seven months to file his post-conviction petition following the resolution of his probation
    revocation matter because he was unable to obtain the proper paperwork.
    On recross examination, the petitioner acknowledged a number of different arrests in
    Florida from 1999 to 2005 on charges ranging from loitering and prowling to kidnapping and
    failure to appear. He insisted, however, that his statement to the court that he had never
    before been in any real trouble was accurate because the felony charges against him had been
    dropped and his only convictions were misdemeanors.
    The attorney who was appointed to represent the petitioner on his probation
    revocation testified that the petitioner was “very much focused on his defense to the
    probation violation” and that he could not recall having had any conversations with him
    -3-
    about post-conviction. On cross-examination, he testified that, had the petitioner asked him,
    he would have told him that the statute of limitations for filing a post-conviction petition was
    one year from the date of his conviction. He said he knew nothing about the statute of
    limitations being tied to the completion of a probation violation hearing and that the
    petitioner’s testimony that he advised him he had to wait to file a post-conviction petition
    until the resolution of his probation violation case did not “ring true.”
    The post-conviction court dismissed the petition after making lengthy oral findings
    of fact and conclusions of law, which included a thorough review of the case law regarding
    the tolling of the statute of limitations on due process grounds and the facts of the case.
    Among other things, the court found that the petitioner’s testimony was not credible, that
    counsel’s testimony was credible, and that the petitioner had not shown any due process basis
    for tolling the statute of limitations. Accordingly, on May 23, 2013, the court entered an
    order dismissing the petition as time-barred. This appeal followed.
    ANALYSIS
    The petitioner argues that the post-conviction court erred by finding that the post-
    conviction statute of limitations should not be tolled on due process grounds. In support, he
    cites, among other things, his testimony that his counsel informed him he could not file a
    post-conviction petition while his probation revocation was pending and his “residence
    grievance report [sic]” from the Sumner County Jail, in which he expressed his desire for an
    “appeal” and stated that his lawyer did not “represent him to the best of his abilities.” The
    State argues that the post-conviction court properly dismissed the petition because it was
    filed more than one year after the petitioner’s conviction became final and there were no due
    process grounds for tolling the one-year statute of limitations. We agree with the State.
    Post-conviction relief is warranted when a petitioner establishes that his or her
    conviction is void or voidable because of an abridgement of a constitutional right. Tenn.
    Code Ann. § 40-30-103 (2012). The burden in a post-conviction proceeding is on the
    petitioner to prove the factual allegations in support of his or her grounds for relief by clear
    and convincing evidence. 
    Id. § 40-30-110(f);
    Dellinger v. State, 
    279 S.W.3d 282
    , 293-94
    (Tenn. 2009). On appeal, we are bound by the post-conviction court’s findings of fact unless
    we conclude that the evidence in the record preponderates against those findings. Fields v.
    State, 
    40 S.W.3d 450
    , 456 (Tenn. 2001). A post-conviction court’s conclusions of law,
    however, are subject to de novo review with no presumption of correctness. 
    Id. at 457.
    Under the Post-Conviction Procedure Act, a claim for post-conviction relief must be
    filed “within one (1) year of the date of the final action of the highest state appellate court
    to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which
    -4-
    the judgment became final, or consideration of the petition shall be barred.” Tenn. Code
    Ann. § 40-30-102(a) (2012).
    The post-conviction statute contains a specific anti-tolling provision:
    The statute of limitations shall not be tolled for any reason, including any
    tolling or saving provision otherwise available at law or equity. Time is of the
    essence of the right to file a petition for post-conviction relief or motion to
    reopen established by this chapter, and the one-year limitations period is an
    element of the right to file the action and is a condition upon its exercise.
    Except as specifically provided in subsections (b) and (c), the right to file a
    petition for post-conviction relief or a motion to reopen under this chapter shall
    be extinguished upon the expiration of the limitations period.
    
    Id. Subsection (b)
    of the statute sets forth the three narrow exceptions under which an
    untimely petition may be considered, none of which apply in this case. See 
    id. § 40-30-
    102(b). However, in addition to the three narrow exceptions listed in the statute, principles
    of due process may allow for the tolling of the statute of limitations in limited circumstances.
    See Seals v. State, 
    23 S.W.3d 272
    , 279 (Tenn. 2000) (“[W]e conclude that while the one-year
    statute of limitations set forth in Tenn. Code Ann. § 40-30-202(a) does not violate due
    process on its face, application of the statute must not deny a petitioner a reasonable
    opportunity to raise a claim in a meaningful time and manner.”); see also Williams v. State,
    
    44 S.W.3d 464
    , 468 (Tenn. 2001); Burford v. State, 
    845 S.W.2d 204
    , 208 (Tenn. 1992).
    The petitioner asserts that his testimony that his counsel informed him that he could
    not file a post-conviction petition while his probation revocation case was pending was “not
    disputed by [his probation revocation counsel].” We respectfully disagree. Counsel, who
    was apparently called to testify at the hearing without any prior notice, testified that he did
    not have his case file with him, but he could not recall having ever discussed with the
    petitioner his post-conviction rights, as the petitioner was focused on fighting the probation
    revocation. He additionally testified that he had never heard anything about having to wait
    for the resolution of a probation violation case before filing a post-conviction petition and
    that the petitioner’s testimony about his alleged advice on that matter did not “ring true with
    [him.]” The post-conviction court, in its findings of fact and conclusions of law, specifically
    accredited the testimony of counsel over that of the petitioner on this matter.
    The post-conviction court found that the petitioner’s testimony on other matters was
    also not credible. This included the petitioner’s testimony that he intended to request a post-
    -5-
    conviction petition when expressing an interest in an “appeal” in his resident request report
    filed on the day following the trial court’s revocation of his probation. A “Legal/Notary
    Request” contained in the petitioner’s Sumner County Jail “Resident Request Report,” which
    was admitted as an exhibit at the post-conviction hearing, contains the following request
    made on May 23, 2012 at 2:24 p.m.:
    My name is Victor Gonzalez and I recently went before [the trial court] on the
    22nd of May 2012. I feel my lawyer didn’t do his job to the best of his power.
    I also feel that [the trial court] judged me unjustly and unfairly due to my
    original charge. Because of these stated reasons listed I’m requesting a motion
    to appeal ASAP. I no longer have a lawyer to make this request for me.
    Please have someone bring me the fourm [sic] needed. Thank you.
    The post-conviction court found that the petitioner was not requesting “an appeal
    based on his guilty plea,” but instead “to appeal his sentence being imposed.” The post-
    conviction court further found that the petitioner was represented by “two very good,
    significant attorneys” during the time when the statute of limitations for filing a post-
    conviction petition was running and that the petitioner was simply “concentrating on [the
    probation revocation proceedings]” during that time, which was insufficient to toll the statute
    of limitations on due process grounds.
    We conclude that the record fully supports the findings and conclusions of the post-
    conviction court. Accordingly, we affirm the dismissal of the petition on the basis that it was
    filed outside the one-year statute of limitations and the petitioner has not shown any reason
    that the statute of limitations should be tolled.
    CONCLUSION
    Based on the foregoing authorities and reasoning, we affirm the judgment of the
    post-conviction court dismissing the petition for post-conviction relief as time-barred.
    _________________________________
    ALAN E. GLENN, JUDGE
    -6-
    

Document Info

Docket Number: M2013-01341-CCA-R3-PC

Judges: Judge Alan E. Glenn

Filed Date: 2/28/2014

Precedential Status: Precedential

Modified Date: 10/30/2014