Laura June Bowling v. State of Tennessee ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 24, 2012 Session
LAURA JUNE BOWLING v. STATE OF TENNESSEE
Appeal from the Criminal Court for Scott County
No. 9618 E. Shayne Sexton, Judge
No. E2011-02570-CCA-R3-PC - Filed August 28, 2012
The petitioner, Laura June Bowling, filed a timely pro se petition for post-conviction relief
challenging her guilty-pleaded conviction of second degree murder for which she received
a sentence of 15 years’ incarceration. Following the appointment of counsel and the
exhaustion of the one-year limitations period, the petitioner entered into an agreed order with
the State withdrawing her petition. The post-conviction court then dismissed the petition
with prejudice. The petitioner now appeals the dismissal order, alleging that her withdrawal
of the petition was unknowingly and involuntarily entered. Discerning no error in the post-
conviction court’s dismissal, we affirm the order of the post-conviction court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.
Sally A. Goade (on appeal) and Wesley D. Stone (at hearing), Knoxville, Tennessee, for the
appellant, Laura June Bowling.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William Paul Phillips, District Attorney General; and Thomas E. Barclay, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The record reflects that, on July 21, 2008, the petitioner pleaded guilty to
second degree murder in exchange for an agreed sentence of 15 years’ incarceration. On July
15, 2009, the petitioner filed a timely petition for post-conviction relief alleging that her plea
was not voluntarily or knowingly entered and that she suffered from an unspecified “illness
that makes it difficult for her to think clearly.” Following the appointment of counsel, the
petitioner and the State entered into an agreed order indicating that the petitioner elected to
withdraw her post-conviction relief petition. The agreed order also indicated that the
petitioner desired for the community to know that her son was completely uninvolved in her
conviction offense. Without holding a hearing, on September 22, 2010, the post-conviction
court signed and entered the order granting voluntary dismissal of the post-conviction
petition.1 On December 1, 2011, the petitioner filed an untimely pro se notice of appeal. On
March 8, 2012, this court waived the timely filing of the notice of appeal. The case is now
properly before this court.
On appeal, the petitioner argues that the post-conviction court failed to
adequately inquire into the voluntariness of her withdrawal of the petition. She also claims
that the limitations period should be tolled due to her mental incompetence at the time of the
withdrawal and that post-conviction counsel provided ineffective assistance. The State
argues that the post-conviction court was not required to hold a hearing concerning the
withdrawal of the petition, that the limitations period had expired by the time the petition was
withdrawn, and that the petitioner was not entitled to the effective assistance of counsel at
the post-conviction proceeding. Following our review, we agree with the State and affirm
the order of the post-conviction court.
“[T]here is no constitutional duty to provide post-conviction relief procedures.”
Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004) (citing Burford v. State, 845 S.W.2d
204, 207 (Tenn. 1992)). Post-conviction relief is a statutory creation and, therefore, subject
to the discretionary limitations of the legislature. Serrano, 133 S.W.3d at 604. “When there
is no constitutional or statutory mandate, and no public policy prohibiting, an accused may
waive any privilege which he is given the right to enjoy.” Id. (quoting Schick v. United
States, 195 U.S. 65, 72 (1904)).
Post-conviction relief is available only “when the conviction or sentence is void
or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). Code
section 40-30-102 provides a one-year statute of limitations for the filing of any petition for
post-conviction relief. Id. § 40-30-102(a). Furthermore, “[t]he petitioner may withdraw a
petition at any time prior to the hearing without prejudice to any rights to refile, but the
withdrawn petition shall not toll the statute of limitations.” Id. § 40-30-109(c); see also
1
At an August 30, 2010 status hearing, the petitioner’s counsel indicated that the petitioner was
considering withdrawing her petition because she “may not want the relief she is seeking” – presumably
referencing a trial. From comments at the same hearing, we discern that the petitioner was originally indicted
for first degree murder and, pursuant to the plea agreement, pleaded guilty to second degree murder and
received the minimum sentence of 15 years’ incarceration.
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Tenn. R. Sup. Ct. 28 §6(C)(8). Generally, the Post-Conviction Procedure Act and Rule 28
do not mandate a particular inquiry or hearing as a prerequisite to a non-capital petitioner’s
withdrawal of a post-conviction petition. But see Tenn. R. Sup. Ct. 28 §11 (providing for
hearing regarding a death-sentenced petitioner’s competency and understanding prior to
granting a motion to withdraw a post-conviction petition).
In the instant case, the petitioner entered into an agreed order with the State
voluntarily dismissing her petition for post-conviction relief. This action generally would
not have precluded her filing a subsequent post-conviction petition. See T.C.A. § 40-30-
109(c). In this case, however, the dismissal occurred after the expiration of the limitations
period and, therefore, foreclosed any subsequent petition. Id. The dismissal order, which
the petitioner signed, indicates that the petitioner knowingly and voluntarily agreed to
withdraw her post-conviction petition. Because nothing in the Act or Rule 28 mandates a
hearing prior to a non-capital petitioner’s withdrawing a post-conviction petition, we
conclude that the post-conviction court did not err by granting the voluntary dismissal in this
case.
The petitioner’s additional claims that the limitations period should be tolled
due to mental incompetence and that post-conviction counsel rendered ineffective assistance
must also fail. “[D]ue process requires tolling of the post-conviction statute of limitations
only if a petitioner shows that [s]he is unable either to manage [her] personal affairs or to
understand h[er] legal rights and liabilities.” State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001).
Moreover, due process principles do not require tolling of the statute of limitations “upon the
mere assertion of a psychological problem.” Id. “Unsupported, conclusory, or general
allegations of mental illness will not be sufficient to require tolling and prevent summary
dismissal.” Id . at 464. Furthermore, a post-conviction petitioner has no right to effective
representation at post-conviction proceedings. House v. State, 911 S.W.2d 705, 712 (Tenn.
1995) (citing Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) (holding that “the scope
of the right to counsel is limited and applies only through the first appeal as of right. It does
not apply to post-conviction relief”).
The post-conviction court’s order of dismissal is affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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