State v. Arthur Turner ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
ARTHUR MELVIN TURNER, * C.C.A. # 02C01-9607-CR-00233
Appellant, * SHELBY COUNTY
VS. * Hon. John P. Colton, Jr., Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
FILED
July 8, 1997
For Appellant: For Appellee: Cecil Crowson, Jr.
Appellate C ourt Clerk
Arthur Melvin Turner Charles W. Burson
Pro Se Attorney General & Reporter
No. 13253-076
Federal Correctional Institute William David Bridgers
P.O. Box 34550 Assistant Attorney General
Memphis, TN 38134-0550 450 James Robertson Parkway
Nashville, TN 37243-0493
Lorraine Craig
Asst. District Attorney General
Criminal Justice Center
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
PER CURIAM
OPINION
The petitioner, Arthur Melvin Turner, appeals the trial court's denial of
his petition for post-conviction relief. The issue presented for review is whether the
trial court correctly dismissed the petition without an evidentiary hearing on the basis
that it was barred by the statute of limitations. We affirm the judgment of the trial
court.
This post-conviction petition, filed April 15, 1996, challenges the
validity of three separate convictions: a March 17, 1971, guilty plea to third degree
burglary; a May 23, 1974, guilty plea to second degree burglary; and a February 28,
1983, guilty plea. The petitioner contends these sentences are being used to
enhance a sentence received in federal court. He alleges that the guilty pleas were
not knowingly and voluntarily made. The trial court summarily dismissed the petition
as being time-barred.
In this appeal of right, the petitioner makes several arguments as to
why his petition should not be barred by the statute of limitations. First, he contends
that the statute of limitations does not apply because he is in custody of the federal
rather than state government. This court has previously held, however, that there is
no distinction under the post-conviction act between a prisoner in federal custody
and one in state custody. Passarella v. State, 891 S.W.2d 619, 622-23 (Tenn. Crim.
App. 1994). Also, this court has upheld application of the statute of limitations
against a federal prisoner. See Phillip Woody v. State, No. 03C01-9211-CR-00396,
slip op. at 5 (Tenn. Crim. App., at Knoxville, July 29, 1993). Thus, this contention is
without merit.
The petitioner also contends that application of the statute of
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limitations violates the ex post facto provisions of both the state and federal
constitutions. Our courts have consistently rejected this argument. See State v.
Richard S. Butler, No. 1338, slip op. at 3 (Tenn. Crim. App., at Knoxville, May 19,
1992). See also William Lynn Johnson v. State, No. 02C01-9605-CR-00136, slip
op. at 5 (Tenn. Crim. App., at Jackson, June 10, 1997).
Next, the petitioner argues that the new Post-Conviction Procedure Act
creates a one-year window in which any petitioner may file. Effective May 10, 1995,
the new Post-Conviction Procedure Act replaced the prior act in its entirety. See
1995 Tenn. Pub. Act 207, §§ 1 and 3. Because this petition was filed in April of
1996, the new act applies. The most recent legislation replaced a three-year with a
one-year limitation:
(a) ...[A] person in custody under a sentence of a court of
this state must petition for post-conviction relief under
this part within one (1) year of the date of the final action
of 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, or
consideration of such petition shall be barred. The
statute of limitations shall not be tolled for any reason....
(b) No court shall have jurisdiction to consider a petition
filed after such time unless:
(1) The claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional
right that was not recognized as existing at the time of
trial, if retrospective application of that right is required.
Such petition must be filed within one (1) year of the
ruling of the highest state appellate court or the United
States [S]upreme [C]ourt establishing a constitutional
right that was not recognized as existing at the time of
trial;
(2) The claim in the petition is based upon new
scientific evidence establishing that such petitioner is
actually innocent of the offense or offenses for which the
petitioner was convicted; or
(3) The claim asserted in the petition seeks relief
from a sentence that was enhanced because of a
previous conviction and such conviction in the case in
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which the claim is asserted was not a guilty plea with an
agreed sentence, and the previous conviction has
subsequently been held to be invalid, in which case the
petition must be filed within one (1) year of the finality of
the ruling holding the previous conviction to be invalid.
Tenn. Code Ann. § 40-30-202 (Supp. 1996).
Because the convictions in this case became final in 1971, 1974, and
1983, this petition appears to have been barred not only by the current one-year
statute of limitations but also the former three-year statute. Moreover, the grounds
raised in the petition and on appeal do not appear to fall within any of the exceptions
set out in Tenn. Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).
In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.
App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of
this court, by a two-to-one margin, ruled that the literal terms of the new statute
created a one-year window, starting on May 10, 1995, during which post-conviction
petitions may be filed, notwithstanding the date of the judgment:
This act shall take effect upon becoming a law, the public
welfare requiring it and shall govern all petitions for post-
conviction relief filed after this date, and any motions
which may be filed after this date to reopen petitions for
post-conviction relief which were concluded prior to the
effective date of this act. Notwithstanding any other
provision of this act to the contrary, any person having a
ground for relief recognized under this act shall have at
least one (1) year from the effective date of this act to file
a petition or a motion to reopen under this act.
1995 Tenn. Pub. Act 207, § 3 (emphasis added).
This majority found no ambiguities in the terminology of the statute
despite the reasonable argument by the dissent to the contrary. In Carter, our
supreme court granted the state's application for permission to appeal. While no
decision has yet been filed, other panels of this court have adopted the dissenting
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view in Carter and have held that the new act did not create a new one-year filing
period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415
(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.
02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.
State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);
Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at
Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289
(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres
to the holding in these subsequent cases. Thus, treating the petition as one for
post-conviction relief, this claim is barred by the statute of limitations under the new
Act.
The petitioner also argues he is entitled to relief under the principles
announced in State v. Frazier, 784 S.W.2d 927 (Tenn. 1990); State v. Newsome,
778 S.W.2d 34 (Tenn. 1989); and State v. McClintock, 732 S.W.2d 268 (Tenn.
1987). Frazier held that Boykin was not to be applied retrospectively and that
Mackey violations that exceeded the mandates of Boykin were not subject to review
during a post-conviction proceeding. Frazier, 784 S.W.2d at 928. Newsome held
that the harmless error rule applies to violations of Mackey. Newsome, 778 S.W.2d
at 38. Neither Frazier nor Newsome created a new constitutional right to be applied
retroactively. The plain language in McClintock provides that the ruling only applies
to litigants already in the "pipeline." McClintock, 732 S.W.2d at 274. None of these
rulings afford the petitioner any relief.
The petitioner also argues that the former post-conviction statute of
limitations does not apply to guilty proceedings unless an action is filed in the
highest state appellate court. Our court has routinely held that the statute of
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limitations on guilty pleas commences "when the judgment of conviction [is]
entered." Sharon Ann Conner v. State, No. 03C01-9509-CC-00279, slip op. at 2
(Tenn. Crim. App., at Knoxville, June 3, 1996).
The petitioner also argues that the application of the statute of
limitations to his case denies him due process of law and that the post-conviction
court erred when it did not find an exception to the statute of limitations in this case.
In Burford v. State, 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a
narrow exception to the three-year statute of limitations. Burford had been
sentenced as a habitual criminal to a term of life imprisonment based upon five prior
robbery convictions. Id. at 205. He filed a timely post-conviction petition, alleging
that certain of his five prior robbery convictions were constitutionally infirm because
he had not been advised of his right against self-incrimination before entering his
plea; he was granted post-conviction relief from these convictions. Id. Later, after
the three-year statute of limitations had expired, Burford filed a petition to set aside
the finding of habitual criminality on the basis that there was no longer a sufficient
number of prior felony convictions to qualify him for the enhanced punishment. Id.
at 206. Our supreme court ruled that the statute of limitations, while generally
compliant with constitutional due process, violated Burford's specific due process
rights:
If consideration of the petition is barred, Burford will be
forced to serve a persistent offender sentence that was
enhanced by previous convictions that no longer stand.
As a result, Burford will be forced to serve an excessive
sentence in violation of his rights under the Eighth
Amendment to the U.S. Constitution, and Article I, § 16
of the Tennessee Constitution, which, by definition, are
fundamental rights entitled to heightened protection.
Burford, 845 S.W.2d at 209.
In Sands v. State, 903 S.W.2d 297 (Tenn.1995), our supreme court
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further defined how to apply the Burford test. A court must:
(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
normally have commenced; and (3) if the grounds are
"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. In making this final determination, courts
should carefully weigh the petitioner's liberty interest in
"collaterally attacking constitutional violations occurring
during the conviction process," against the State's
interest in preventing the litigation of "stale and
fraudulent claims."
Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,
208).
By the use of these guidelines, we have first determined that the
statute of limitations for this petitioner's convictions expired in 1989.1 The
petitioner's argument fails at the second step. He argues his pleas were involuntary.
The right to the voluntariness of a guilty plea was established well before petitioner's
convictions were entered. See, e.g., Boykin v. Alabama, 395 U.S. 238 (1969).
Thus, he has not established that a constitutional right arose after his convictions
became final or after his statute of limitations expired. To the extent the petitioner
argues his pleas are invalid because he was not advised that the conviction could
be used to enhance a subsequent punishment, that portion of the advice litany is not
constitutionally required. Our supreme court has ruled that the "advice [that the
conviction may be used to enhance a future sentence] ... is not based upon any
constitutional provision, federal or state... such omissions have no validity on the ...
post-conviction proceeding." State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).
1
Th e thre e-year statu te of lim itations was pas sed in 198 6. See Tenn. Code Ann. § 40-30-102(repealed 1995 ).
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This court is compelled to comment on the 1983 guilty plea. The
petition states that this conviction occurred on "February 28, 1993." The state did
not file an answer indicating when the conviction occurred. The trial court's order
dismissing the petition also did not indicate the date of conviction. Our court,
however, takes judicial notice of the fact that the conviction in this case occurred on
February 28, 1983, and that the petition contains a typographical error. "The courts
may take judicial notice of the court records in an earlier proceeding of the same
case and the actions of the courts thereon." Delbridge v. State, 742 S.W.2d 266,
267 (Tenn. 1987). In addition, appellate courts are authorized to supplement
incomplete records. Tenn. R. App. P. 24(e). Accordingly, we have supplemented
the record with a copy of the judgment and conclude that the conviction did, in fact,
become final on February 28, 1983.
If judgment had been entered on February 28, 1993, as alleged, the
petitioner would have filed a timely petition. In Betsy Jane Pendergrast v. State, No.
01C01-9607-CC-00289, slip op. at 3 (Tenn. Crim. App., at Nashville, May 16, 1997),
this court ruled that the new Post-Conviction Act gives individuals whose statute of
limitations had not yet run a year from the effective date of the new Act until May 10,
1996.
We emphasize that the state has an obligation to file portions of the
record "that are material to the questions raised therein." Tenn. Code Ann. § 40-30-
208(b) (1996 Supp.). "It is the role of the State, and not the court, to file those parts
of the record that are material to the questions raised in the petition." Allen v. State,
854 S.W.2d 873, 875 (Tenn. 1993).
We affirm the judgment of the trial court.
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PER CURIAM
Joe B. Jones, Presiding Judge
Gary R. Wade, Judge
John H. Peay, Judge
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