Cyril v. Fraser ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY SESSION, l995
FILED
October 30, 1995
TIMOTHY WAYNE PETERS ) Cecil Crowson, Jr.
Appellate Court Clerk
)
APPELLANT ) NO. 03C0l-9409-CR-0033l
)
) SULLIVAN COUNTY
)
V. ) HON. EDGAR P. CALHOUN, JUDGE
)
) ({Post-Conviction Relief Petition)
)
STATE OF TENNESSEE )
)
APPELLEE )
FOR THE APPELLANT: FOR THE APPELLEE:
Paul R. Wohlford Charles W. Burson
Attorney at Law Attorney General
(At trial only)
40l Edgemont Ave. Cyril V. Fraser
Bristol, TN 37620 Assistant Attorney General
450 James Robertson Parkway
Dale Barnes Nashville, TN 37243-0493
Attorney at Law
(At trial only) H. Greeley Wells, Jr.
District Attorney General
Gale K. Flanary Jerry Beck
Assistant Public Defender Phyllis Fitzwilson Miller
(On appeal only) Asst. Dist. Attorneys General
P.O. Box 839 P.O. Box 526
Blountville, TN 376l7
Blountville, TN 376l7
AFFIRMED
OPINION FILED:_________________________
JERRY SCOTT, PRESIDING JUDGE
OPINION
The appellant, Timothy Wayne Peters, appeals from the Sullivan County
Criminal Court's summary dismissal of his petition for post-conviction relief. The
trial court dismissed the petition on the merits, finding that the petition failed to
specifically set forth any valid grounds establishing a constitutional deprivation.
On appeal, the appellant contends (a) that the petition was timely filed and (b)
that the trial court's denial of relief was error. Since this Court finds the petition
was properly dismissed, the judgment of the trial court is affirmed.
The appellant was convicted of first degree murder on October 1, 1986.
He filed a pro se post-conviction petition on October 28, 1988. The petition was
dismissed by the trial court, and the dismissal was affirmed on appeal. On
October 21, 1991, the appellant filed a second petition for post-conviction relief.
The trial court dismissed the petition on the grounds that the petition was barred
by the statute of limitations. The petition here under consideration was filed on
December 23, 1992. On January 27, 1993, the appellant filed a motion
requesting that the statute of limitations be set aside.1 Following the dismissal of
the petition by the trial court on July 29, 1994, the appellant filed this appeal.
Pursuant to the Post-Conviction Procedure Act, relief could then be
granted to a petitioner on the following grounds:
Relief . . . shall be granted when the conviction or sentence is void
or voidable because of the abridgement in any way of any right
guaranteed by the constitution of this state or the Constitution of
the United States, including a right that was not recognized as
existing at the time of the trial if either constitution requires
retrospective application of that right.
Tenn. Code Ann. § 40-30-105 [repealed]. In this regard, the appellant contends
State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992) created a new constitutional
rule concerning the elements of premeditation and deliberation in first degree
1
There is no evidence in the record that the trial court ever ruled on this motion.
However, because of our belief that this issue is dispositive of the case, we
consider the trial court's inaction to be plain error and address the issue sua
sponte.
2
murder cases. He further asserts that Meadows v. State, 849 S.W.2d 748, 755
(Tenn. 1993) requires retroactive application of Brown. We disagree.
At the time this petition was filed, the law provided that a petition for post-
conviction relief must be filed "within three (3) years of the date of the final action
of the highest state appellate court to which an appeal is taken or consideration
of such petition shall be barred."2 Tenn. Code Ann. § 40-30-102 [repealed]. In
the present case, the appellant's petition was filed well beyond the three year
statutory period and, thus, is subject to dismissal. See Harden v. State, 873
S.W.2d 2, 3 (Tenn. Crim. App. 1993). In addressing this statutory preclusion,
the appellant attempts to except his case from the statute of limitations by
arguing that the statutory period did not commence until Brown was decided in
1992.
In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our Supreme
Court held that "it is possible that under the circumstances of a particular case,
application of the statute may not afford a reasonable opportunity to have the
claimed issue heard and decided." To avoid running afoul of such due process
concerns, two exceptions to the application of the three-year statute of
limitations have been promulgated. The first exception involves cases like
Burford, 845 S.W.2d at 210, where a procedural trap deprives the criminal
defendant of a reasonable opportunity to present his claim. The second
exception applies where a new constitutional rule is created which requires
retrospective application. Tenn. Code Ann. § 40-30-105 [repealed].
2
The time for filing is now one year from the date of the final action of the highest
state appellate court to which an appeal is taken or, in the event of no appeal,
the date the judgment became final. Tenn. Code Ann. § 40-30-202(a).
3
The present case does not rest within either exception. In Burford, the
petitioner was caught in a procedural trap because his post-conviction claim in
one county did not arise until several prior convictions were set aside in a
separate post-conviction action in another county. Id. at 205-06. The record
does not support that the appellant has suffered any such procedural vexation in
this case. In regard to the second exception, this Court has consistently held
that the Supreme Court did not intend that Brown be applied retrospectively.
E.g., Lofton v. State, 898 S.W.2d 246, 250 (Tenn. Crim. App. 1994); State v.
Sills, No. 03C01-9410-CR-00370, 1995 WL 271726, at *4 (Tenn. Crim. App.
May 10, 1995); Frantzreb v. State, No. 01C01-9308-CR-00247, 1994 WL
456374, at *1 (Tenn. Crim. App. Aug. 23, 1994); Walker v. State, No. 01C01-
9402-CR-00055, 1994 WL 390473, at *2 Tenn. Crim. App. July 28, 1994).
Moreover, on several occasions this Court has noted that nothing in Brown
suggests that the Supreme Court's modification of the jury instruction in first
degree murder cases created a new constitutional rule. E.g., Lofton, 898 S.W.2d
at 249; Miller v. State, No. 03C01-9409-CR-00336, 1995 WL 395842, at *3
(Tenn. Crim. App. July 6, 1995); Fuller v. State, No. 03C01-9407-CR-00249,
1995 WL 382684, *3 (Tenn. Crim. App. June 27, 1995); State v. Hayes, No.
03C01-9310-CR-00347, 1994 WL 440832, at *1 (Tenn. Crim. App. Aug. 17,
1994).
Based on the foregoing facts and legal precedents, it is manifest that the
appellant's petition for post-conviction relief was filed beyond the period
permitted by the statute of limitations, and that no exception to the limitations
period applies. Accordingly, without reaching the merits of the petition, we affirm
the trial court's dismissal of the petition.
4
_______________________________
JERRY SCOTT, PRESIDING JUDGE
CONCUR:
_________________________________
JOE B. JONES, JUDGE
_________________________________
WALTER C. KURTZ, SPECIAL JUDGE
5