Pete Smith v. State ( 1999 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 30, 1999
JANUARY 1999 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
PETE SMITH, )
)
Appellant, ) C.C.A. No. 03C01-9805-CR-00182
)
vs. ) Hamblen County
)
STATE OF TENNESSEE, ) Hon. James E. Beckner, Judge
)
Appellee. ) (Motion to Withdraw Guilty Plea)
FOR THE APPELLANT: FOR THE APPELLEE:
PETE SMITH (pro se) JOHN KNOX WALKUP
P.O. Box 3000 Attorney General & Reporter
Whitedeer, PA 17887
ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
C. BERKELEY BELL, JR.
District Attorney General
109 S. Main St., Suite 501
Greeneville, TN 37243-0493
JOHN F. DUGGER, JR.
Assistant District Attorney
510 Allison Street
Morristown, TN 37814
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The appellant, Pete Smith, appeals from the Hamblen County Criminal
Court’s order dismissing his Motion for Withdrawal of Guilty Plea. On July 28, 1994,
the appellant pleaded guilty to two counts of sale and delivery of crack cocaine less
than a half gram, one count of aggravated assault, and one count of escape. The
judge sentenced him to an effective sentence of seven years in the Department of
Correction. On April 13, 1998, the appellant filed a Motion for Withdrawal of Guilty
Plea alleging (1) that he was ineffectively assisted by counsel due to the failure of
counsel to advise the appellant of his Fourth Amendment rights and (2) that his
guilty pleas were not entered knowingly and intelligently. The court below dismissed
the motion as untimely. The appellant contends that the trial court erred in
dismissing his motion as time-barred because the time requirement for filing should
be waived under his unique circumstances. Following a review of the record and
the briefs of the parties, we affirm the trial court’s dismissal.
A motion to withdraw a guilty plea can only be made before the
judgment is final. Tenn. R. Crim. P. 32(f).1 See generally State v. Antonio Demonte
Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App., Nashville, Aug. 15, 1997).
Thereafter, a defendant may raise a constitutional challenge to his guilty plea in a
post-conviction proceeding. Tenn. Code Ann. § 40-30-203 (1997); see also
Antonio Demonte Lyons, slip op. at 14. Although the appellant’s pleading contained
1
This rule states as follows:
(f) Withdrawal of Plea of Guilty. -- A motion to
withdraw a plea of guilty may be made upon a
showing by the defendant of any fair and just reason
only before sentence is imposed; but to correct
manifest injustice, the court after sentence, but before
the judgment becomes final, may set aside the
judgment of conviction and permit the defendant to
withdraw the plea.
Tenn. R. Crim. P. 32(f).
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the title of “Motion for Withdrawal of Guilty Plea,” “a trial court is not bound by the
title of the pleading, but has the discretion to treat the pleading according to the
relief sought.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995). Accordingly,
this court will treat the appellant’s Motion for Withdrawal of Guilty Plea as a petition
for post-conviction relief, as the parties and the court below have done.
Under the Post-Conviction Procedure Act of 1995, petitions filed after
May 10, 1995, must be filed within one (1) year from the date of the final action of
the highest state appellate court to which an appeal is taken or, if there is no
appeal, within one (1) year of the date that the judgment became final. See Tenn.
Code Ann. § 40-30-202(a) (1997). However, the act gave petitioners, whose three
year statute of limitations under the previous act had not already expired, one year
from the effective date of the act, May 10, 1995, in which to file a petition for post-
conviction relief. See Tenn. Code Ann. § 40-30-201, Compiler’s Notes (1997). A
petition filed beyond the one year statute of limitations can only be considered if the
claim (1) is based upon a newly established constitutional right that was not
recognized at the time of trial, (2) is based upon new scientific evidence establishing
actual innocence of the petitioner, or (3) seeks relief from an enhanced sentence
because the previous conviction, which formed the basis of the enhancement, has
been held to be invalid. See Tenn. Code Ann. § 40-30-202(b) (1)-(3) (1997).
The appellant’s motion to withdraw his guilty plea was untimely filed
on April 13, 1998. Upon entry of his guilty plea, including the waiver of his right to
appeal, the judgment became final that day, July 28, 1994. See State v. Roy Dale
McGriff, No. 01C01-9709-CR-00426 (Tenn. Crim. App., Nashville, Nov. 4, 1998);
Quentin L. Hall v. State, No. 02C01-9802-CR-00040 (Tenn. Crim. App., Jackson,
Aug. 28, 1998). The appellant needed to file his motion by May 10, 1996 in order
to be timely. See Tenn. Code Ann. § 40-30-201, Compiler’s Notes (1997).
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However, the appellant contends that the statute of limitations should
not apply to his case because he was unaware of his Fourth Amendment rights
regarding the search of his motel room at the time of his guilty plea. This claim, the
appellant contends, falls within the exception for a newly established constitutional
right that was not recognized at the time of his plea. The appellant has
misinterpreted the meaning of the exception for a newly established constitutional
right that was not recognized at the time of his plea. The claim must be “based
upon a final ruling of an appellate court establishing a constitutional right that was
not recognized as existing at the time of [the plea].” See Tenn. Code Ann. § 40-30-
202(b)(1) (1997). The appellant’s right to be free from an unreasonable search of
his motel room existed long before the search occurred. See, e.g., Johnson v.
United States, 333 U.S. 10,14 (1948); Stoner v. California, 376 U.S. 483, 486
(1964); Rippy v. State, 550 S.W.2d 636, 641 (Tenn. 1977); State v. Shaw, 603
S.W.2d 741, 742 (Tenn. Crim. App. 1980). The exception applies to claims of
constitutional rights newly established by “a final ruling of an appellate court,” not
to a claim that the appellant did not know this constitutional right existed at the time
of his plea.
Because we find that the statute of limitations bars the appellant’s
claims, the judgment of the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
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_______________________________
JOHN K. BYERS, SPECIAL JUDGE
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