Tommy Dickerson v. State of Tennessee ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 17, 2003
TOMMY DICKERSON v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Franklin County
No. 11223-A J. Curtis Smith, Judge
No. M2002-1854-CCA-R3-PC Filed October 10, 2003
Appellant, Tommy Dickerson, appeals from the trial court’s summary dismissal of Appellant’s
second petition for post-conviction relief. After a review of the record, the briefs of the parties, and
the applicable law, we affirm the judgment of the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
JERRY L. SMITH, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.
Tommy Dickerson, Nashville, Tennessee, Pro se.
Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
James Michael Taylor, District Attorney General; Steven Blount, Assistant District Attorney
General, for the appellee, the State of Tennessee.
OPINION
From our review of Appellant’s petition filed on May 8, 2002, the documents attached
thereto, and the findings of the trial court in its order dismissing the petition, we glean the following
history of Appellant’s case. Appellant was originally indicted for first degree murder. Pursuant to
a negotiated plea agreement, he pled guilty to second degree murder and received an agreed upon
sentence of thirty years as a Range II offender, with the service of incarceration before parole
controlled by Tennessee Code Annotated section 40-35-501(i) (service of not less than eighty-five
percent (85%) of the sentence before eligible for release). Appellant pled guilty on July 8, 1998, and
there was no direct appeal of Appellant’s conviction and sentence. He filed a pro se petition for
post-conviction relief on March 8, 1999. Counsel was appointed and an evidentiary hearing was
held on August 18, 1999.
In his first petition for post-conviction relief, Appellant asserted that his conviction and
sentence were void because the State had breached its agreement. Appellant argued that he should
have been sentenced to a 35% rather than an 85% release eligibility status. He also alleged that he
had received ineffective assistance of counsel. Appellant further requested that the post-conviction
court order the Tennessee Department of Correction to calculate his sentence with a 35% release
eligibility.
On September 21, 1999, the trial court entered an order dismissing Appellant’s petition for
post-conviction relief. No direct appeal was taken from this order. In his second petition for post-
conviction relief, which is the subject of this appeal, Appellant raised the following issues: (1) his
sentence is illegal and void due to the erroneous release classification pursuant to Tenn. Code Ann.
§ 40-35-501(i); (2) the trial court erred by not ordering a mental evaluation of Appellant; (3)
Appellant has “new evidence” that the medical examiner who performed the victim’s autopsy is not
credible; and (4) Appellant was denied effective assistance of counsel.
Since July 1, 1995, the statute of limitations for filing a petition for post-conviction relief has
been one year from the date on which the judgment of conviction became final in cases where no
appeal is taken. Tenn. Code Ann. § 40-30-202(a) (1997). Appellant’s first petition for post-
conviction relief was timely filed, but his second petition was filed almost four years after the
judgment of conviction was filed. Furthermore, Tenn. Code Ann. § 40-30-202(c) provides as
follows:
(c) This part contemplates the filing of only one (1) petition for post-conviction
relief. In no event may more than one (1) petition for post-conviction relief be
filed attacking a single judgment. If a prior petition has been filed which was
resolved on the merits by a court of competent jurisdiction, any second or
subsequent petition shall be summarily dismissed. A petitioner may move to
reopen a post-conviction proceeding that has been concluded, under the limited
circumstances set out in § 40-30-217.
Tenn. Code Ann. § 40-30-202(c) (1997).
There are three statutory exceptions to the statute of limitations in post-conviction matters.
See Tenn. Code Ann. § 40-30-202(b)(1), (2), and (3) (1997). None of these exceptions are
applicable in Appellant’s case. Furthermore, if the application of the post-conviction statute of
limitations in a particular case prevents a petitioner from having a reasonable opportunity to present
his or her claims in a meaningful time and manner, then there is a violation of the constitutional right
to due process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The only ground for relief in
Appellant’s second petition that would even arguably come within a “due process” claim would be
the ground alleging “new evidence” attacking the credibility of the medical examiner who performed
the autopsy on the victim in Appellant’s murder case. This “new evidence” is a petition filed by the
Tennessee Department of Health before the Tennessee Board of Medical Examiners against the
medical examiner. By its very nature, this purported “new evidence” consists of only allegations,
in an ongoing proceeding, and not evidence. We conclude that Appellant’s second petition for post-
conviction relief was subject to summary dismissal both because it was an unauthorized second
-2-
petition for post-conviction relief and because it was barred by the statute of limitations. Appellant
is therefore not entitled to relief in this appeal.
CONCLUSION
For the reasons stated above, the judgment of the post-conviction trial court is affirmed.
___________________________________
JERRY L. SMITH, JUDGE
-3-