State v. Tommie Hill ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1996
TOM MIE L . HILL J R., ) C.C.A. NO. 02C01-9511-CC-00335
)
Appe llant, )
) FILED
) MADISON COUNTY
VS. ) November 25, 1997
) HON. WHIT LAFON
STATE OF TENNESSEE, ) JUDGE Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
TOMMIE L. HILL, JR. JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
CCA/SCCF, P. O. Box 279
Clifton, TN 38425-0279 WILLIAM D. BRIDGERS
Assistant Attorney General
MARY ANNE QUEEN
Legal Assistant
450 James Robertson Parkway
Nashville, TN 37243
JERRY W OODALL
District Attorney General
SHAUN A. BROWN
Assistant District Attorney
225 Martin Lu ther Kind Jr. Drive
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
In this case Appellant, Tommie L. Hill, Jr., appeals the summary
dismissal of his petition for post-conviction relief filed on June 1, 1995. Following
a carefu l review of the re cord in this case we affirm the judgment of the trial court.
1. FACTUAL BACKGROUND
On May 9, 1991, in Case No. 90-433, Appellant was convicted by a jury for
the sale and delivery of co caine. On June 11, 1991, the trial court sentenced the
petitioner as a Ra nge III offender to 25 years in the Tennessee Department of
Correction.
On April 26, 19 93, Ap pellan t appe aled to this Court and raised four issues.
This Court he ld that: (1) testimony about Appellant’s character or reputation was
not error, and even if it was error, it was harmles s; (2) the trial court properly
refused to allow into evidence the prior convictions of the informant; (3) the trial
court did not err by re fusing to a llow the tes timony o f a defense witness because
Appellant failed to lay a foundation for the testimony; and (4) Appellant was not
eligible for Range III punishment pursuant to Tenn. Code A nn. 39-17-41 7(c)(1),
and thus, the trial court erred in sentencing Appellant - State v. Tom my Le e Hill,
Jr., Madison county, C.C.A. 02C01-9212-CC-00285, Opinion filed December 1,
1993, at Jackson. This Court vacated Appellant’s sentence, remanded the case
to the trial court for resentencing, and affirmed the judgment of the trial in all other
respects. The trial court resentenced Appellant on December 14, 1994.
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On September 11, 1991, in Case Nos. 90-432, 90-434, 90-1000, 90-1127,
91-198, 91-199, and 91-682, Appellant pleaded guilty to two counts of sale of
cocaine, theft over $1,000 , posses sion of co caine w ith intent to sell, possession
of a handgun while being a convicted felon, hindering a secured creditor, and
felony escape. Appellant did not appeal these conviction.
On June 1, 1995, Appellant filed a pro se petition for post-conviction relief
in Case No. 90-433 and Case Nos. 90-432, 90-1000, 90-1127, 91-198, 91-199,
and 91-682. He alleged that his guilty pleas in Case No. 90-433 and Case Nos.
90-432, 90-1000, 90-1127, 91-198, 91-199, and 91-682 were entered
uninte lligently a nd un know ingly du e to the ineffec tivenes s of his tr ial cou nsel.
On August 4, 1995, the trial court dismissed the post-conviction petition
and ruled: (1 ) the pe tition wa s filed o utside the thre e year statute of limita tions in
Case Nos. 90 -432, 90 -1000, 9 0-1127 , 91-198 , 91-199 , and 91 -682; and (2)
regardin g Case No. 90-4 33, the pe titioner allege d no gro unds fo r relief.
2. STATUTE OF LIMITATIONS
It is clear that the pe tition for p ost-co nviction relief, in s o far as it relates to
cases 90-432, 90-10 00, 90 -1127 , 91-19 8, 91-1 99, an d 91-6 82, wa s prop erly
dismissed sum marily since it is clearly barred b y the app licable thre e year sta tute
of limitations . See. Tenn . Code Ann. §4 0-30-10 2 (Rep ealed). Appellant never
appealed his convic tions in these ca ses an d thus the time for filing fo r post-
conviction relief with respect to them expired on September 11, 1994. The
instant petition filed on June 1, 1995, is obviously time-barred.
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Appellant claim s that h e did n ot disc over h is coun sel’s alleged
ineffectiveness until December 14, 1994. In Burford v. State, 845 S.W.2d 204(Tenn. 1992); our state supreme court held that a post-conviction petitioner must
be excused from the strict operation of the statute of limitations where a new
issue arises near the end of the limitations period or after the period thereby
depriving a petitione r of a fair opp ortunity to litigate the issue . Id. at 208.
In this case how ever, Appellant simply failed to discover the factual basis
of an alleged c laim of ine ffectivenes s of coun sel. Burford does n ot apply to a
post-c onvictio n petitio ner wh o sim ply slept on his rights to seek post-conviction
relief. Passa rella v. State , 891 S.W .2d 619 , 625-26 (Tenn . Crim. App. 1994 ).
Therefore, the post-c onviction p etition was time-ba rred and properly d enied w ith
respect to the cases noted above.
3. CASE NO. 90 -433 AN D TH E LAC K OF A CON STITU TION AL CLA IM
Although the petition for post-conviction relief was time ly filed with regard
to Case No. 90-433 , it fails to state grounds for which post-conviction relief can
be granted. Post-conviction relief can be granted only when a conviction or
sentence is void o r voida ble because of an abridgement of a right guaranteed by
the federal or s tate cons titutions. Tenn . Code Ann. § 4 0-30-10 5. The petition is
this case alleges that an involuntary guilty plea was entered in Case No. 90-433
as the result of alleged ineffectiveness of counsel. This is somewhat puzzling
since Appellant wa s convicted by a jury upon a plea of not guilty in Cae No.90-
433. Thus, we are unable to find a constitutional claim in the petition regarding
Case No. 90-433.
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Wh ere a post-conviction petition conclusively shows that the petition er is
not entitled to re lief, it is properly su bject to sum mary dismissal. Tenn. Code
Ann. § 40-30 -109; Givens v. State, 702 S.W .2d 578, 580 (Tenn. Crim. App.
1985). For these reasons the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
DAVID H. WELLES, JUDGE
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