Dexter Williams v. State ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
January 11, 2000
DECEMBER 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
DEXTER L. WILLIAMS, )
)
Appellant, ) No. E1999-00871-CCA-R3-PC
)
) Blount County
v. )
) Honorable W. Dale Young, Judge
)
STATE OF TENNESSEE, ) (Post-conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Dexter L. Williams, Pro Se Paul G. Summers
N.E.C.C. Attorney General of Tennessee
Post Office Box 5000 and
Mountain City, TN 37883-5000 Clinton J. Morgan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
Michael L. Flynn
District Attorney General
and
Edward P. Bailey, Jr.
Assistant District Attorney General
942 E. Lamar Alexander Parkway
Maryville, TN 37804
OPINION FILED:____________________
REVERSED AND REMANDED
Joseph M. Tipton
Judge
OPINION
The petitioner, Dexter L. Williams, appeals as of right from the Blount
County Criminal Court’s dismissal of his petition for post-conviction relief from his 1993
first degree murder conviction and resulting life sentence. See State v. Dexter Lee
Williams, No. 03C01-9312-CR-00390, Blount County (Tenn. Crim. App. Jan. 9, 1995),
app. dismissed (Tenn. Feb. 5, 1996). The petitioner contends that the trial court erred
in summarily dismissing his petition without affording him a full and meaningful hearing
on the evidence he presented. We reverse the trial court and remand the case.
The petitioner filed a pro se petition for post-conviction relief on October
24, 1996, asserting fifteen grounds for relief, most claiming the ineffective assistance of
counsel. The trial court appointed the petitioner an attorney who filed an amendment to
the petition. The state answered the petition as amended, denying any merit to the
petitioner’s claims. Later, the petitioner’s attorney was allowed to withdraw because his
secretary was related to the victim. The trial court appointed new counsel but allowed
him to withdraw upon his and the petitioner’s separate requests. The withdrawal order
entered on July 16, 1998, reflects that the petitioner requested and was allowed to
proceed pro se with the case.
On February 22, 1999, the petitioner moved for the trial court to set a
hearing date on his petition and filed a pro se amendment to his petition. The state
filed an answer on March 23, 1999. The record reflects that the parties appeared in the
trial court on March 26, 1999, with the trial court intending to hear the case. However, a
colloquy between the petitioner and the trial court occurred, with the petitioner
complaining that he had not been provided all the case records he had requested; that
his requests that subpoenas issue for specified witnesses, including his trial attorney,
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had not been honored; and that his motion for expert services was still pending. The
petitioner said that he was not prepared to go forward because of such shortcomings.
He indicated that he had received short notice of the hearing date. The trial court
dismissed the petition.
The petitioner contends that he was not provided a full and fair hearing on
his claims for relief. He argues that the trial court violated his right to due process of
law by not allowing such a hearing.
The state’s two-sentence argument in its brief fails to address the
petitioner’s contentions and arguments in this appeal. However, in its statement of the
case, it states that the petitioner filed his petition more than one year after the final
action of the Tennessee appellate courts in his convicting case. It asserts that because
the statute of limitations had run, the trial court was without jurisdiction to entertain the
petition and should have dismissed it summarily. See Tenn. Code Ann. 40-30-202(b),
-206(b).
First, as a matter of procedure, we note that if the state, as the appellee,
desired to raise the statute of limitations as an issue in this appeal, it was required to
present it as a separate, specified issue in its brief. See State v. Hayes, 894 S.W.2d
298, 300 (Tenn. Crim. App. 1994). It did not do so. Ordinarily, this would result in a
waiver of the issue. However, given the particular nature of the statute of limitations
under the 1995 Post-Conviction Procedure Act and the fact that we otherwise would
remand this case to the trial court for further hearing, we must address it in this appeal.
As previously indicated, this court affirmed the petitioner’s conviction on
January 9, 1995. The petitioner’s application for permission to appeal was dismissed
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on February 5, 1996, as untimely filed, the Tennessee Supreme Court being without
jurisdiction to grant the appeal. From the state’s perspective, this means that the one-
year statute of limitations began to run from January 9, 1995, the date this court filed its
opinion and judgment. Thus, the petition filed on October 24, 1996, was too late.
The petitioner alleges in his petition that his appointed trial counsel filed
the application for permission to appeal on or about November 8, 1995. Thus,
ostensibly, counsel in the convicting case purportedly continued to act as the
petitioner’s counsel through the filing of the application. The petitioner has alleged that
his attorney was ineffective on appeal. What ramifications, if any, these circumstances
may have on the issue of the statute of limitations should await further development of
the record in the trial court.
As to the petitioner’s contentions on appeal, we believe that they have
sufficient merit to remand this case for further hearing. The record reflects that the
petitioner requested that subpoenas be issued for various witnesses, including his trial
attorney. No reason is shown why the request was not honored. It is apparent that the
March 26, 1999, “hearing” was held by the trial court in response to the petitioner’s
February 22, 1999, request for a hearing. However, the petitioner presented sufficient
reasons why the trial court should not proceed on the date set. Without addressing the
petitioner’s concerns but focusing only upon the petitioner’s request for a hearing, the
trial court dismissed the case because the petitioner presented no evidence. Under the
circumstances, this was error.
Given the state of the record, we remand the case for a hearing, initially to
address the circumstances of the petitioner’s direct appeal, of the application for
permission to appeal, and of trial counsel’s relationship to the application – as all relate
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to the issue of the statute of limitations. Any further hearing would depend upon the
trial court’s decision on that issue.
_________________________________
Joseph M. Tipton, Judge
CONCUR
_____________________________
David H. Welles, Judge
_______________________________
Jerry L. Smith, Judge
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