Wendell Watts v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
December 9, 1998
Cecil W. Crowson
WENDELL GENE WATTS, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9711-CC-00533
)
) Maury County
v. )
) Honorable James L. Weatherford, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Shara Ann Flacy John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
William C. Bright Karen M. Yacuzzo
Assistant Public Defender Assistant Attorney General of Tennessee
128 North Second St. 425 Fifth Avenue North
P.O. Box 1208 Nashville, TN 37243-0493
Pulaski, TN 38478-1208
(AT TRIAL Michael T. Bottoms
District Attorney General
Shara Ann Flacy P.O. Box 459
District Public Defender Lawrenceburg, TN 38464
and and
Joseph L. Penrod Robert Sanders
128 North Second Street Assistant District Attorney General
P.O. Box 1208 Maury County Courthouse
Pulaski, TN 38478-1208 Columbia, TN 38401
(ON APPEAL)
OPINION FILED:____________________
AFFIRMED PURSUANT TO RULE 20
Joseph M. Tipton
Judge
OPINION
The petitioner, Wendell Gene Watts, appeals the denial of post-
conviction relief by the Maury County Circuit Court. He is presently in the custody of the
Department of Correction serving a ninety-nine-year sentence for his conviction for
aggravated rape in 1982. The petitioner contends that the statute of limitations should
not bar his petition for post-conviction relief because: (1) he lacked the resources with
which to file it timely; (2) his interest in presenting his grounds for relief outweighs the
government’s interest in applying the statute of limitations; and (3) State v. Livingston,
907 S.W.2d 392 (Tenn. 1995), announced a new rule, and its application is not barred
by the three-year statute of limitations for post-conviction relief.
The petitioner was convicted on January 26, 1982, of aggravated rape
and sentenced to ninety-nine years. The conviction was affirmed by this court. State v.
Wendall [sic] Gene Watts, No. 82-72-III, Maury County (Tenn. Crim. App. Oct. 6, 1982),
app. denied (Tenn. Jan. 31, 1983).
The petitioner filed a petition for post-conviction relief on February 28,
1996, and subsequently filed three amendments. The state responded that the petition
was barred by the statute of limitations.
The post-conviction court granted a hearing to determine whether the
petition was time barred, and on October 30, 1997, ordered the petition dismissed due
to the failure to file within the statute of limitations.
Tenn. Code Ann. § 40-30-202 is the controlling authority with regard to the
statute of limitations on post-conviction relief petitions. It provides for a review of a
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post-conviction petition filed outside the statute of limitations only in specific instances.
The petitioner’s claims in this case fail to meet any of these exceptions.
We note that the petitioner asserts a new rule was established by our
supreme court in Livingston, which would entitle him to a review of this post-conviction
petition. Livingston concerned the admissibility of “fresh complaint” evidence in light of
the Tennessee Supreme Court’s decision in State v. Kendricks, 891 S.W.2d 597 (Tenn.
1994). In Jimmy Wayne Wilson v. State, No. 03C01-9611-CR-00409, Sullivan County
(Tenn. Crim. App. Oct. 30, 1997), Wilson made an argument analogous to the
petitioner’s: that the Kendricks court created a new constitutional right requiring
retroactive application to his case. However, the court held that Kendricks did not
establish a new constitutional right but simply modified the principles governing “fresh
complaint” evidence. Likewise, we conclude that Livingston did not establish a new
constitutional right requiring retroactive application. Rather, it is a modification of
evidentiary principles governing “fresh complaint” testimony. Therefore, the trial court
properly denied the petitioner’s claim since it was barred by the statute of limitations.
After full consideration of the record, the briefs, and the law governing the
issues presented, we are of the opinion that the record supports the trial court’s action,
that no error of law exists that would require a reversal, and that no precedential value
would be derived from the rendering of an opinion. Therefore, we conclude that the
judgment of the trial court should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App.
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___________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Joe G. Riley, Judge
___________________________
James Curwood, Jr., Judge
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