Dwayne Gentry v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
October 28, 1999
DEWAYNE GENTRY, )
) C.C.A. NO. 01C01-9904-CC-00117
Cecil Crowson, Jr.
Appellant, ) (No. F-29392 Below)
Appellate Court Clerk
) RUTHERFORD COUNTY
VS. )
) The Hon. James K. Clayton, Jr.
STATE OF TENNESSEE, )
) (Dismissal of Post-Conviction Petition)
Appellee. )
) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motion requesting that the
judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. Having reviewed the state’s motion, the petitioner’s brief, and the
record on appeal, we find that the motion is well taken.
It appears that the petitioner pled guilty to aggravated rape and was
sentenced as a mitigated offender on September 7, 1994, to thirteen years, six months in
the Tennessee Department of Correction. The petitioner filed his post-conviction petition
on January 29, 1999, and the trial court dismissed the petition as barred by the statute of
limitations.
Prior to May 10, 1995, the statute of limitations for post-conviction petitions
was three years. T.C.A. § 40-30-102 (repealed 1995). On May 10, 1995, the limitations
period was shortened to one year. T.C.A. § 40-30-202(a) and Compiler's Notes to §
40-30-201. Because the previous three-year statute of limitations had not expired as of
May 10, 1995, the petitioner's right to petition for post-conviction relief survived under the
new Act. Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997). Thus, the petitioner had one
year from May 10, 1995, in which to file a petition for post-conviction relief, or until May
1996. His petition was not filed until January 1999. Therefore, the court below was correct
in concluding that the petitioner’s claim for relief was time-barred by the statute of
limitations.
Under T.C.A. § 40-30-202(b), the only exceptions to the one-year statute of
limitations are: (1) the claim in the petition is based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized as existing at the time of trial, if
retrospective application of that right is required; (2) the claim in the petition is based upon
new scientific evidence establishing that such petitioner is actually innocent of the offense
or offenses for which the petitioner was convicted; or (3) the claim in the petition seeks
relief from a sentence that was enhanced because of a previous conviction and such
conviction in the case in which the claim is asserted was not a guilty plea with an agreed
sentence, and the previous conviction has subsequently been held to be invalid.
In the present case, the petitioner failed to show that his claim fall within one
of the exceptions set forth in T.C.A. § 40-30-202(b). Instead, the petitioner submits that
his plea was not intelligently, knowingly, and voluntarily entered because his attorney, the
district attorney general, and the trial judge failed to inform him that he would not be
automatically released after serving 20% of his sentence, but rather that he would be
merely eligible for parole at that time.
The statute clearly states that the one-year limitations period shall not be
tolled for any reason, including any tolling or saving provision otherwise available at law or
equity. T.C.A. § 40-30-202(a). Moreover, application of the statute of limitations in this
instance does not violate due process principles. In Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992), our Supreme Court held that in certain situations application of the statute
of limitations in a post-conviction proceeding might violate constitutional due process. In
determining whether there has been such a violation, the essential question is whether the
time period allowed by law provides the petitioner a fair and reasonable opportunity to file
suit. Id. In Burford, the Supreme Court held that the petitioner was "caught in a procedural
trap and unable to initiate litigation ... despite the approach of the three-year limitation."
Id. No such trap exists here.
In the alternative, the petitioner contends that the one-year statute of
limitations is unconstitutional. This Court has previously rejected a similar claim, see
Carothers v. State, 980 S.W.2d 215, 217-18 (Tenn. Crim. App. 1997), and we decline the
invitation to revisit the issue.
IT IS, THEREFORE, ORDERED that the state’s motion to affirm the
judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is
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granted, and the judgment of the trial court is affirmed. It appearing that the petitioner is
indigent, costs of these proceedings are taxed to the state.
_____________________________
JOHN H. PEAY, JUDGE
CONCUR:
_____________________________
JERRY L. SMITH, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
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