State v. Edward Jones ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
EDWARD EARL JONES, * C.C.A. # 02C01-9607-CR-00226
Appellant, * SHELBY COUNTY
VS. * Hon. Arthur T. Bennett, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
FILED
For Appellant: For Appellee:
Edward Earl Jones, pro se Charles W. Burson August 27, 1997
#085890 Attorney General & Reporter
Cold Creek Correctional Facility
P.O. Box 1000 M. Allison Thompson
Henning, TN 38041-1000 Counsel for the StateCecil Crowson, Jr.
450 James Robertson Parkway
Nashville, TN 37243-0493 C ourt Clerk
Appellate
Perry Hayes
Assistant District Attorney General
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Edward Earl Jones, appeals the trial court's denial of
post-conviction relief. The single issue presented for review is whether the petition
was barred by the statute of limitations.
We affirm the judgment of the trial court.
On August 11, 1977, the petitioner was convicted of aggravated rape,
for which he received a life sentence; robbery by the use of a deadly weapon, for
which he received an eight-year sentence; and crime against nature, for which he
received a sentence of not less than eight years nor more than twelve years. This
court affirmed the convictions on direct appeal. Edward Earl Jones v. State, No.
102 (Tenn. Crim. App., at Jackson, Feb. 29, 1980). An application for permission to
appeal to the supreme court was denied July 1, 1980.
On May 14, 1996, the petitioner filed a post-conviction petition,
challenging the validity of the rape conviction. The petitioner contended that there
were various irregularities regarding the affidavit of complaint, his arrest, and his
preliminary hearing in the General Sessions Court. He also argued that there were
deficiencies in the arraignment, the trial, the instructions to the jury, and the
sentencing procedure.
The trial court ruled that the petition was barred by the three-year
statute of limitations which had been in effect until repealed on May 10, 1995. See
Tenn. Code Ann. §§ 40-30-102 to -124 (repealed 1995).
In this appeal, the petitioner also complains that he should have been
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appointed counsel for assistance in his post-conviction claim. He contends that the
district attorney general failed to respond to his petition as required by statute:
The district attorney general shall represent the state and
respond by proper pleading on behalf of the state within
thirty (30) days after receiving notice of the docketing or
within such time as the court orders.
Tenn. Code Ann. § 40-30-114(a) (repealed 1995).
Initially, the dismissal of a colorable post-conviction claim, prior to the
1995 amendment, was rarely proper without the appointment of counsel. Swanson
v. State, 749 S.W.2d 731 (Tenn. 1988). If, however, it could be conclusively
determined from the pro se petition that the petitioner is not entitled to relief, a
summary dismissal is not precluded. A time-barred petition is a classic example.
See, e.g., Frederick v. State, 906 S.W.2d 927, 930 (Tenn. Crim. App. 1993) (petition
dismissed without the appointment of counsel when barred by statute of limitations).
Also, the failure of the district attorney general to participate would not warrant a
reversal unless the petitioner was prejudiced thereby. See Brown v. State, 445
S.W.2d 669 (Tenn. Crim. App. 1969). More importantly, the amendments to the
Post-Conviction Procedure Act, effective May 10, 1995, implemented substantial
changes. See Tenn. Pub. Act 207, §§ 1 and 3. Now, the trial judges must give
preliminary consideration to each petition. Tenn. Code Ann. § 40-30-206 (1996
Supp.). Because this petition was filed May 14, 1996, the amended act would apply
and, unless the claims fall within one of the statutory exceptions, a summary
dismissal without the appointment of counsel would be proper:
If it plainly appears from the face of the petition, any
annexed exhibits or the prior proceedings in the case that
the petition was not filed in the court of conviction or
within the time set forth in the statute of limitations, or
that a prior petition was filed attacking the conviction and
was resolved on the merits, the judge shall enter an
order dismissing the petition....
Tenn. Code Ann. § 40-30-206(b) (1996 Supp.).
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Here, the petitioner has made no claims that would qualify as an
exception to the statute of limitations. Tenn. Code Ann. § 40-30-202 (1996 Supp.);
see Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Thus, under any interpretation
of the 1995 Act, this petition is barred by the statute of limitations. See Arnold
Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim. App., at Knoxville, July 11,
1996), appeal granted, (Tenn., Dec. 2, 1996).
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
John H. Peay, Judge
_______________________________
Thomas T. Woodall, Judge
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