State v. Delvin Donehue , 1997 Tenn. Crim. App. LEXIS 1052 ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1997 October 20, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DELVIN L. DONEHUE, ) C.C.A. NO. 02C01-9701-CR-00034
)
Appe llant, )
) SHELBY COUNTY
)
V. )
) HON . JOHN P. CO LTO N, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
D. TYLER KELLY JOHN KNOX WALKUP
HARDEE, MARTIN & JAYNES Attorney General & Reporter
P.O. Box 98
Jackson, TN 38302 KENNETH W. RUCKER
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
ALANDA HORNE
Assistant District Attorney General
201 Poplar Street, Suite 301
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Appe llant, Delvin L. Donehue, appeals as of right from the dismissal
by the Shelby County Criminal Court of his petition for post-conviction relief. The
petition was filed pro se and th e trial co urt dism issed the pe tition without an
evidentiary hearin g. The trial court based its dismissal upon the fact that the
petition was barred by the applicable statute of limitations. Counsel was
appointed to represent petitioner in this court. We affirm the judgment of the trial
court.
A brief his tory of th is case is n ecessa ry to address the issues raised
by Appellant. On March 24, 1994, the Shelby County grand jury returned an
indictment against Appellant charging him in Count 1 with the offense of
attempted felony murder committed in the perpetration of robbery, and in Count
2 with the offense of attempted first degree mu rder. Both offens es were alleged
to have oc curred o n the sam e date a nd aga inst the same victim. F rom th is
sparse record, it is also apparent that Appellant was charged with aggravated
robbery and the ft over $10 ,000.00 in separa te indictm ents.
Pursuant to a negotiated plea agreement on October 4, 1994,
Appellant pled guilty to Coun t 1 of the ind ictmen t wherein he was charge d with
attempted felony m urder and re ceived a sen tence of fifteen (15) ye ars in the
Department of Correction. The judgment entere d the s ame date re flects th at this
sentence was o rdere d to be served concurren tly with sentences for convictions
pursuant to guilty pleas to theft over $10,000.00 and aggravated robbery. Other
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than in the indictment, Count 2 (charging Appellant with attempted first degree
murder of the vic tim), is n ot othe rwise m ention ed in th e reco rd in this appe al.
Also, the sen tences received by App ellant for the conviction s of theft over
$10,00 0.00 an d aggra vated rob bery are n ot set forth in the reco rd.
On November 4, 1996, Appellant filed in the Criminal Court of Shelby
Coun ty his petition for post-con viction relief. In this petition, Appellant stated that
he was c onfine d at the South Cent ral Co rrection al Fac ility in Clifton [Wayne
Coun ty], Tennessee. The basis for the request for relief by Appellant is the
decision of our supreme court in State v. Kimbrough, 924 S.W.2d 888 (Tenn.
1996), where in the court ruled “the offense of attempted felony murder does not
exist in Tenn essee .” Kimbrough, 924 S.W .2d at 892 . The decision in Kimbrough
was filed J une 3, 1 996.
As of May 10, 1995, Appellant had one (1) year from that da te in
which to file a petition for post-conviction relief, or the claim would be barred.
Tenn. Code Ann. § 40-30-202(a). There are three exceptions to this provision,
however, none of the exceptions apply in Appellant’s case. The claim is not
based upon a final ruling of an appellate court establishing a constitutional right
that was not recognized as existing at the time o f Appella nt’s guilty plea. Neither
is the claim based upon new scientific evidence establishing that the Appellant
is actually innocent of the offe nse fo r which he wa s con victed. F inally, the claim
does not involve a previous conviction which has been held to be invalid which
was us ed to en hance the sente nce.
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Before this court, Appellant presents three issues. He argues that
the trial court erred dismissing the petition because: (1) Ap pellan t’s conviction for
attempted felony murder is void due to the trial court lacking subject matter
jurisdiction; (2) the statute of limitations do es not bar the petition because
Kimbrough established a new constitutional rule which must be applied
retroactively; and (3) the statute of limitations in Appellant’s case violates his right
to due process.
With regard to his first issue, we disagree that the issue of a lack of
subject matter jurisdiction can be properly litigated in a petition for post-conviction
relief which is tim e barred . This do es not fall within one of the statutory
exceptions to application of the statute of limitations. Tennessee Code
Annotated section 40-30-202(b), specifically states that “N o court shall have
jurisdiction to consider a petition filed after [expiration o f the statute of limitations ]”
unless one of the specified excep tions a pplies . Ther efore, th is issue is without
merit.
Furthermore, we disag ree with the Appella nt that a new
constitutional right was established in Kimbrough. The ruling in Kimbrough was
based upon statutory construction, and was not resolved upon any constitutional
issue. T herefore , this issue is a lso withou t merit.
In Appe llant’s third issue, he argues that, under Burford v. State, 845
S.W.2d 204 (Tenn. 1992), and Sands v. State , 903 S.W .2d 297 (Te nn. 1995),
that application of the statu te of limitations in his case violates his rights to due
proces s guara nteed b y the Un ited State s and T ennes see Co nstitutions.
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In Sands, our supreme court sum mariz ed the basic rule from Burford
to be:
In certain circums tances , due pro cess pro hibits the strict application
of the post-conviction statute of limitatio ns to b ar a pe titioner’s claim
when the grounds for relief, whether legal or factual, arise after the
“final action of the highest state appellate court to which an appeal
is taken” -- or, in other words, when the grounds arise after the point
at which the limitations p eriod would no rmally have begun to run.
In applying the Burford rule to spe cific factual situ ations, courts
shou ld utilize a three-step process: (1) determine when the
limitations period would normally have begun to run; (2) determine
whether the grounds for relief actually arose after the limitations
period would norm ally hav e com men ced; a nd (3) if the grounds a re
“later arising,” determine if, under the facts of the case, a strict
application of the limitations period would effectively deny the
petitioner a reasonable opportunity to present the claim.
Sands, 903 S.W.2d at 301.
In Sands, our supreme court held that application of the statute of
limitations in that case did not violate the petitioner’s due process rights even
though in his 1977 trial, the trial cour t purporte dly shifted th e burde n of proo f to
the petition er in viola tion of th e Unite d State s Sup reme Cour t’s hold ing in
Sandstrom v. Montana, 442 U.S. 510, (1979). In do ing so, our sup reme cou rt
found in Sands that the Sandstrom claim of that petitioner was not a “later arising
ground” as set forth by Burford. Our supreme court also noted that in McBee v.
Grant, 763 F.2 d 811 (6 th Cir. 1985), that the S ixth Circuit Court of Appeals stated
that a “Sandstrom-type claim of error in jury in structions was not “novel,” and
shou ld have been objected to by defenda nt in the 1971 trial.” Sands, 903 S.W.2d
at 302.
In light of the above, we note that o ur court filed its opinion in State
of Tennessee v. Brian Keith Kimbrough on November 2, 1994. In a two-one
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decision, this court held that the “crime of attempted felony murder does not exist
in Tenn essee .” See State of Tennessee v. Brian Keith Kimbrough, No. 02C01-
9308-CR-00182 slip op. at 7, Shelby County (Tenn. Criminal Appeals, Jackson,
Nov. 2, 1994) (Affirmed State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). As
noted above, App ellant had one (1) year from May 1, 1995 in which to file a
petition for post-conviction relief. This court’s opinion in Kimbrough, was filed
appro ximate ly 18 m onths before the sta tute of lim itations had ru n in Ap pellan t’s
case. Therefore, the issue set forth in the supreme court’s decision in Kimbrough
was not the type of “later arising issue” con templated b y Burford.
The judgment of the trial court is affirmed.
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THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID G. HAYES, Judge
___________________________________
JERRY L. SMITH, Judge
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