Opinion
C.C.A. No. 02C01-9508-CR-00218.
September 9, 1997.
SHELBY COUNTY, HON.W. FRED AXLEY, JUDGE, (Post-Conviction Relief).
AFFIRMED IN PART; REMANDED IN PART
FOR THE APPELLANT
CHRISTOPHER L. NEARN.
FOR THE APPELLEE
CHARLES W. BURSON, Attorney General and Reporter, DEBORAH A. TULLIS, Assistant Attorney General, JOHN W. PIEROTTI, District Attorney General, EDGAR PETERSON, Assistant District Attorney.
OPINION
Appellant Jerry Dorsey appeals from the dismissal of his third petition for post-conviction relief. On January 22, 1988 Appellant pled guilty to aggravated sexual battery, aggravated assault, and burglary. On February 21, 1995, the post-conviction court dismissed Appellant's third petition for post-conviction relief after addressing the petition on its merits. On November 26, 1996, this Court ordered Appellant and the State to file supplemental briefs addressing whether Appellant's third petition for post-conviction relief was outside of the statute of limitations found in Tennessee Code Annotated § 40-30-102 (1990) (Repealed). Appellant claims that although his third petition is time-barred, this Court should address the claims raised in his third petition because his case remains open due to lack of notice of the dismissal of his first petition for post-conviction relief. The issue for review before this Court is whether Appellant's third petition for post-conviction relief was filed beyond the statute of limitations found in Tennessee Code Annotated § 40-30-102.
After entering into a negotiated plea agreement on January 22, 1988, Appellant was sentenced to fifteen years for aggravated sexual battery, six years for aggravated assault, and ten years for burglary. The sentences were ordered to be served concurrently for an effective sentence of fifteen years. On February 27, 1989, Appellant filed his first petition for post-conviction relief which was dismissed. Although the record does not contain a copy of this petition, the record indicates that it was essentially a request for documents. Appellant claims that he never received a copy of the Order of Dismissal of his first petition. On September 19, 1989, Appellant filed his second petition for post-conviction relief, which was styled as an amendment to his first petition. His second petition for post-conviction relief was dismissed. On May 27, 1993, Appellant filed a writ of habeas corpus, which the court treated as a petition for post-conviction relief. On August 19, 1993 Appellant filed an amendment to his third petition. Even though Appellant in his writ of habeas corpus conceded that a third petition for post-conviction relief was time-barred, the post-conviction court allowed Appellant to proceed under the amendment to the third petition, consolidating Appellant's second petition with his third petition. On February 21, 1995, the post-conviction court dismissed Appellant's third petition for post-conviction relief.
Appellant argues that although his third petition for post-conviction relief was filed beyond the time permitted by Tennessee Code Annotated § 40-30-102, he should nevertheless be allowed to proceed under his most recent filing since the statute of limitations was tolled by his failure to receive a copy of the Order of Dismissal of his first petition. He maintains that under Tennessee Rule of Civil Procedure 58, an order without a certificate of service signed by only one party is a nonfinal order which cannot be appealed. Therefore, as Appellant's argument goes, Appellant's first petition remains open, permitting us to address the claims found in his third petition.
The Post-Conviction Procedure Act provides that, "The clerk of the court shall send a copy of the final judgment to the petitioner. . . ." Tenn. Code Ann. § 40-30-119(1990) (Repealed). Therefore, we need not consider Appellant's claim that Rule 58 of the Tennessee Rules of Civil Procedure is applicable. In fact, we have held that a petitioner who does not receive the notice mandated by the Post-Conviction Procedure Act is entitled to relief from the dismissal of his petition. Clotfelter v. State, No. 03C01-9206-CR-00210, 1993 WL 247926, at *3 (Tenn.Crim.App. July 8, 1993). In Clotfelter, petitioner filed his first petition for post-conviction relief on April 2, 1987, alleging that his guilty pleas were involuntarily entered. His first petition was dismissed although he alleged that he never received a copy of the order of dismissal. On November 1, 1991 Clotfelter filed his second petition for post-conviction relief again alleging an involuntary plea. We held that because Clotfelter's second petition was beyond the three-year statute of limitations found in Tennessee Code Annotated § 40-30-102, his second petition was time-barred. Clotfelter, 1993 WL 247926, at *4. However, we remanded the case to the trial court to hold an evidentiary hearing on whether or not Clotfelter's first petition could be reopened if in fact he did not receive proper notice. Similarly, in Morgan v. State, petitioner filed a second petition beyond the statute of limitations but claimed that it should be heard because he never received notice of the dismissal of the first petition. No. 03C01-9306-CR-00184, 1994 WL 71202, at *1 (Tenn.Crim.App. March 9, 1994), perm. to app. den., (Tenn. 1994). We refused to hear Morgan's second petition because it was time-barred and had absolutely no relation to the grounds stated for relief in his first petition. Morgan, 1994 WL 71202, at * 2.
In the case at bar, we find that Appellant's third petition for post-conviction relief is time-barred, and therefore we affirm its dismissal. As for re-opening Appellant's first filing, we remand the case to the post-conviction court for an evidentiary hearing to determine whether or not Appellant received notice of the dismissal of his first petition. If he did not, he is entitled to a hearing on the grounds raised in the first petition and the first petition only.
______________________________ JERRY L. SMITH, JUDGE
CONCUR
_______________________________ JOSEPH M. TIPTON, JUDGE
_______________________________ DAVID H. WELLES, JUDGE
DISSENTING OPINION
I respectfully disagree with the results reached in the majority opinion. I believe that a remand is unnecessary in that the denial of post-conviction relief should be affirmed on the merits.
As a starting point, I believe that the record is incomplete in a fashion that precludes us from barring the third post-conviction petition as untimely filed. At the beginning of the evidentiary hearing, the following exchange occurred between the appellant's counsel and the trial court:
COUNSEL: Just for the record, Your Honor, Mr. Dorsey had initially filed a pro se petition for post-conviction relief, which the first one was dismissed without a hearing.
He filed an amended post-conviction relief, which was given a new number; and that jacket has since been unable to be found.
He filed this one, which was technically beyond the years; but the court allowed us to proceed under the third number but under the actual second filing. If that makes any sense.
THE COURT: Yes. Sure.
The state made no comment relative to this exchange.
It is apparent that a proceeding occurred in the trial court in which it determined that the third petition could be maintained. However, that proceeding is not in the record on appeal. Ordinarily, if the record on appeal fails to include the proceeding from which a trial court enters a particular order, we presume that the trial court's ruling was correct. I see no reason why the presumption does not control in this case, even though the issue of the statute of limitations was raised in this appeal by this court. Under the presumption, the trial court's relating the third petition back to the second petition that was filed on September 19, 1989, removes the statute of limitations as a viable issue.
It follows, as well, that a remand for a hearing relative to the first post-conviction case is uncalled for. In fact, I note that the state's responsive pleading in the trial court asserts that the first "petition was not, in reality, a petition for post-conviction relief but merely a request for records to explore possible avenues for relief, which the State was not required to furnish to the petitioner." If such is true, a hearing upon remand, limited only to the first petition, would be an effort in futility. In any event, the appellant's substantive complaints were presented in an evidentiary hearing that is in the record before us. In this regard, the appellant asserts (1) that his guilty pleas were entered as a result of the ineffective assistance of counsel, (2) that his pleas were not voluntarily entered, and (3) that the trial court erred in not allowing him to be present at the second evidentiary hearing in which his trial attorney testified.
I doubt that this court may properly require such a limitation. If the result of the hearing were to "reopen" the first case, it is within the trial court's discretion to determine whether justice requires accepting an amendment to the claims.
The trial court entered detailed findings of fact and conclusions of law. Relative to the ineffective assistance of counsel, the trial court stated, in pertinent part, the following:
Petitioner claims that counsel failed to file various discovery motions which would have assisted in the preparation of his case. Proof offered at the post-conviction hearing indicates that [counsel] had unrestricted access to the State's evidence due to the State's open-file policy on discovery. Thus, formal written motions requesting discovery were unnecessary. [Counsel] testified that he conducted a thorough investigation of Petitioner's file and reported his findings to Petitioner. Additionally, [counsel] testified that after a lengthy discussion with the District Attorney's office, he determined that the State had virtually an air-tight case. Discovery in this case was thorough, proper, and complete.
Petitioner alleges counsel failed to meet with him and keep him abreast of trial strategy. [Counsel] testified he met with members of Petitioner's family, visited Petitioner once in jail, and met with Petitioner every time the case was scheduled in court. Since there were no witnesses and Petitioner had fully explained his version of the crime, [counsel] met with Petitioner as necessary to keep him updated on developments in the case. Petitioner's claim that [counsel] failed to meet with him and discuss trial developments is baseless.
Petitioner alleges that counsel failed to properly investigate potential witnesses. Testimony offered at trial indicated that [counsel] was so motivated by the serious nature of the charges against Petitioner that, at his personal expense, [counsel] took the extraordinary step of hiring a private detective to search for exculpatory witnesses. The investigator was unable to locate any such witnesses, a fact [counsel] reported back to his client. Accordingly, Petitioner's claim that counsel failed to investigate is without merit.
Petitioner's allegations of ineffective assistance of counsel are vague and unsubstantiated. After over eight years of incarceration, Petitioner seems to be on a fishing expedition to find any grounds to overturn his inviction. Many of Petitioner's claims allude to the methods which should have [been] used by counsel. This Court will not use hindsight when reviewing every tactic used by the trial attorney. See State v. Martin, 627 S.W.2d 139, 142 (Tenn.Crim.App. 1981).
This Court finds that [counsel] far exceeded the standard required for effective assistance of counsel; therefore, all Petitioner's claims relating to ineffective assistance of counsel are without merit and are dismissed.
The record fully supports these determinations.
Relative to the voluntariness of the guilty pleas, the trial court determined as follows:
After reviewing the record of Petitioner's guilty plea hearing and the proof offered at the hearing on the petition for post-conviction relief, this Court finds Petitioner's guilty pleas constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969), establishes the minimum protection afforded a defendant, under the united States Constitution, when that defendant enters a guilty plea. The Court held that a guilty plea would be constitutionally valid only when it was entered both voluntarily and intelligently, and then, only after the defendant was informed of his constitutionally protected rights. Id. at 243. Tennessee has mandated greater protection to criminal defendants entering guilty pleas. The current procedure for accepting a guilty plea in Tennessee was established by the Supreme Court of Tennessee in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977).
The proof offered by Petitioner is void of any evidence to support a claim that his guilty plea was coerced. At the hearing for post-conviction relief, Petitioner himself admitted his guilty plea was made of his own free will. Simply following Counsel's experienced advice does not rise to the level of coercion required to overturn a guilty plea.
The mere fact that Petitioner may have reconsidered his guilty plea after several years of incarceration has no bearing on whether the plea was voluntarily entered when it was accepted by this Court. Any claim by Petitioner that the guilty plea was invalid is dismissed.
The record fully supports these determinations.
As for the trial court's refusal to allow the appellant to be present when his trial attorney testified, I agree that the trial court erred. In fact, the trial court in question has been criticized for a similar denial in a previous post-conviction case, in which this court essentially held that the appellant's statutory right to testify includes the right to be present during other witnesses' related testimony for rebuttal purposes. See Scott v. State, 936 S.W.2d 271, 273 (Tenn.Crim.App.), app. denied (Tenn. 1996).
On the other hand, the appellant has failed to show any prejudice, not even through speculation, that occurred to him by the trial court's action. Also, given the fact that the evidentiary hearings in the present case preceded the decision in Scott, I would refrain from concluding that there has been prejudice to the judicial process. Under these circumstances, I consider the error to be harmless.
Under the foregoing circumstances, I would affirm the judgment of the trial court.
______________________________ Joseph M. Tipton, Judge