Joseph Gilbert Williams, Jr. v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2016
JOSEPH GILBERT WILLIAMS, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2011-D-3554 Mark Fishburn, Judge
No. M2015-02063-CCA-R3-PC – Filed May 18, 2016
In 2013, a Davidson County jury convicted the Petitioner, Joseph Gilbert Williams, Jr., of
violation of the sex offender registry, third offense. The Petitioner appealed, and this
Court dismissed the appeal for failure to file a brief as ordered. State v. Joseph Gilbert
Williams, Jr., No. M2014-00019-CCA-R3-CD, (Tenn. Crim. App., at Nashville, July 10,
2014). In 2015, the Petitioner filed a pro se petition for post-conviction relief, contending
that the State failed to disclose favorable evidence to him and that he was denied the
effective assistance of counsel. The trial court summarily dismissed the petition as
untimely filed. The Petitioner then untimely filed his notice of appeal. On appeal, the
Petitioner contends that the post-conviction court erred when it summarily dismissed his
petition. Finding that the post-conviction petition was not timely filed, we dismiss the
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Chelsea Nicholson, Nashville, Tennessee, for the appellant, Joseph Gilbert Williams, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Facts
On December 2, 2011, the Davidson County grand jury indicted the Petitioner for
violating the sexual offender registry. The indictment alleged that the Petitioner:
Who is a “violent sexual offender” as that term is defined in Tennessee
Code Annotated § 40-39-201, on the 29th day of September, 2011, in
Davidson County, Tennessee and before the finding of this indictment,
unlawfully and knowingly did stand, sit idly, whether or not [the Petitioner]
was in the vehicle, or remain within one-thousand (1,000‟) of the property
line of any building owned or operated by any public school, to wit: Hume
Fogg High School, which children under eighteen (18) years of age were
present while not having a reason or relationship involving custody of or
responsibility for a child or any other specific legitimate reason for being
within one-thousand (1,000‟) of Hume Fogg High School, in violation of
Tennessee Code Annotated §40-39-211, and against the peace and dignity
of the State of Tennessee.
The indictment further stated that the Petitioner had previously been convicted of
the same offense on February 22, 2011, and on August 25, 2011, making this his third
offense.
On May 23, 2013, the trial court entered a judgment of conviction. The judgment
showed that a jury convicted the Petitioner of the indicted offense. The trial court
sentenced him as a Career Offender to six years: one year of incarceration followed by
five years of Community Corrections. The Petitioner appealed to this Court. On July 10,
2014, this Court dismissed the appeal because the Petitioner failed to file a brief.
On August 4, 2015, the Petitioner filed a petition for post-conviction relief. He
contended that the State failed to disclose favorable evidence and that he had received the
ineffective assistance of counsel at trial.
The post-conviction court summarily dismissed the petition. It found:
It appearing to the Court that the above-named individual has, on the
31st day of July, 2015, filed a Motion requesting post-conviction relief.
The [P]etitioner asserts that the prosecution failed to turn over favorable
evidence, and that he was denied effective assistance of counsel.
On February 25, 2013, the [P]etitioner was found guilty after a jury
trial of one (1) count of Violation of the Sex Offender Registry, and on
May 23, 2013, was sentenced to 6 years at 60%, with one (1) year to be
served at 100% and then to be released to Community Corrections.
Subsequently, the Petitioner filed a motion, and was granted permission to
file a pro se appeal.
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On July 10, 2014, the Court of Criminal Appeals issued an Order
dismissing Petitioner‟s direct appeal for want of prosecution. In its order,
the Court noted that the Petitioner had been notified on May 19, 2014, that
Petitioner had 30 days to file an appellate brief which the Petitioner had not
done.
Tennessee Code Annotated §40-30-102(a) requires that petition be
filed “within one (1) year of the date of final action to the highest state
appellate court to which an appeal is taken or, if no appeal is taken, within
one (1) year of the date on which the judgment became final.” And unless
the claim is based on the exceptions listed under § 40-30-102 (b), the Court
shall no longer have jurisdiction over the matter.
After reviewing the petition, the Court finds that the petition is time
barred because the one (1) year statute of limitations has expired.
Furthermore, the Court finds no grounds which would preclude the
application of the statute of limitations as allowed by § 40-30-102(b).
Based on these findings, the Court respectfully summarily DISMISSES the
petition.
The trial court entered this order on September 9, 2015. The Petitioner filed his notice of
appeal on October 14, 2015.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred when it
summarily dismissed his petition without holding a hearing to determine whether an
exception to the one-year statute of limitations existed. He asserts that he “may or may
not have been representing himself since his conviction” and that, while that alone is not
a basis for tolling the statute of limitations, the trial court should have held a hearing to
determine whether there was such a basis. He offers no reason why the statute of
limitations should be tolled. The State counters that the appeal should be dismissed
because the Petitioner did not timely file his notice of appeal. It further contends that the
post-conviction court correctly determined that the post-conviction petition was not
timely filed. We agree with the State.
Tennessee Rule of Appellate Procedure 4(a) provides that the notice of appeal
must be filed “within 30 days after the date of entry of the judgment appealed from[.]”
However, the rule further provides that “in all criminal cases the „notice of appeal‟
document is not jurisdictional and the filing of such document may be waived in the
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interest of justice.” Id. As we will explain, we conclude that the interest of justice does
not require our waiving the untimeliness of the filing of the appeal notice, and we decline
to do so.
Although the Petitioner argues that the trial court erred when it did not hold a
hearing to determine whether an exception to the one-year statute of limitations existed,
he offers no explanation on appeal about what exception applies. His only contention is
that he “may or may not have been representing himself.” This is not grounds to toll the
statute of limitations. We cannot conclude that the interest of justice compels our
waiving the untimeliness of this appeal. Accordingly, the appeal is dismissed.
III. Conclusion
Based upon the foregoing authorities and reasoning, the appeal is dismissed.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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