State v. Joy Nelson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1999 SESSION FILED
December 20, 1999
JOY NELSON, ) Cecil Crowson, Jr.
) Appellate Court Clerk
C.C.A. No. W1999-01885-CCA-R3-PC
Appellant, )
) Gibson County
v. )
) Honorable Dick Jerman, Jr., Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
JOY NELSON, pro se PAUL G. SUMMERS
TDOC No. 247472 Attorney General & Reporter
Mark H. Luttrell Reception Center
6000 State Road J. ROSS DYER
Memphis, TN 38134-7628 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
CLAYBURN L. PEEPLES
District Attorney General
EDWARD L. HARDISTER
Assistant District Attorney General
110 South College Street, Suite 200
Trenton, TN 38382-1841
OPINION FILED: __________________________________________
AFFIRMED
ALAN E. GLENN, JUDGE
OPINION
The petitioner, Joy Nelson, appeals the Gibson County Circuit Court's denial of her
petition for post-conviction relief without an evidentiary hearing. After a review of the
record, we find that the petition is time-barred and affirm the dismissal of the trial court.
PROCEDURAL BACKGROUND
The petitioner was indicted for first degree murder on March 21, 1994. In a plea
bargain agreement with the State, she pleaded guilty on April 10, 1995, to second degree
murder and was sentenced to forty years incarceration in the Tennessee Department of
Correction as a Range I standard offender. Petitioner did not appeal this sentence.
On October 6, 1998, petitioner filed a pro se petition for post-conviction relief with
the trial court. Her petition for post-conviction relief was dismissed on February 1, 1999.1
Appeal was timely filed.
ANALYSIS
The law controlling petitions for post-conviction relief is set out in the 1995 Post-
Conviction Procedure Act. See Tenn. Code Ann. §§ 40-30-201 to -310. This new law went
into effect on May 10, 1995. See id., Compiler’s Notes. The act provides for a statute of
limitations for the filing of post-conviction relief petitions which states:
Except as provided in subsections (b) and (c), 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, including any
tolling or saving provision otherwise available at law or equity.
Time is of the essence of the right to file a petition for post-
conviction relief or motion to reopen established by this
chapter, and the one-year limitations period is an element of
the right to file such an action and is a condition upon its
exercise. Except as specifically provided in subsections (b)
and (c), the right to file a petition for post-conviction relief or a
motion to reopen under this chapter shall be extinguished upon
the expiration of the limitations period.
Tenn. Code Ann. § 40-30-202(a).
The exceptions to this one-year statute of limitations are narrow: (1) retrospective
application of a new constitutional right established by a ruling of the highest appellate
court of the state or the U.S. Supreme Court; (2) new scientific evidence establishing that
the petitioner is actually innocent; or (3) a previous conviction that was not a guilty plea
1
Although the record does not indicate that the trial court’s dismissal of petitioner's petition for
post-conviction relief was based on a finding that it was time-barred, based on the analysis
contained in this opinion, the trial court would have erred had it granted an evidentiary hearing and
appointed counsel.
2
that was used to enhance the sentence from which relief is being sought has been held to
be invalid. See id. § 40-30-202(b).
We review the record to determine if it supports a finding that the petition for post-
conviction relief in this case is time-barred and, if so, whether any exceptions apply to save
the petition.
I. Application of Statute of Limitations
At the time petitioner’s conviction became final on April 10, 1995, the statute of
limitations applicable to post-conviction relief proceedings was three years. See id. § 40-
30-102 (repealed 1995). Petitioner therefore had until April 10, 1998, to file a petition. On
May 10, 1995, when the new act went into effect, petitioner became subject to the current
statutory procedure as set out in the 1995 Post-Conviction Procedure Act. Because she
was still within the three-year statute of limitations of the old Act, her right to petition for
post-conviction relief remained viable. The language of the enabling provision for the
1995 Act provided such petitioners with a specific period for filing ending on May 10, 1996.
See Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997). This period worked to actually
shorten what would have been petitioner’s time frame for filing under the old Act. In this
case, application of the new statute of limitations is not determinative because when
petitioner filed for post-conviction relief on October 6, 1998, her petition was time-barred
under both the new and old Acts.
Having determined that this petition for post-conviction relief is time-barred, we next
determine whether any exceptions applied to save the petition. Petitioner does not argue
any of the statutory exceptions of Tennessee Code Annotated § 40-30-202(b). Rather, she
argues that the statute of limitations should not apply to her because the sentence itself
is illegal. Petitioner claims each of the following to support her contention:
(1) that the sentence of forty years as a Range I offender
violates the statutory guidelines of Tennessee Code
Annotated § 40-35-112(a)(1) and is an illegal
sentence;
(2) that she lacked mental capacity both as to the mens
rea element of the offense and generally as a
condition tolling the statute of limitations;
(3) that defense counsel cajoled, coerced, and
threatened her into accepting the plea agreement;
and
(4) that her indictment failed to allege facts as to each
essential element of the offense and failed to give her
proper notice.
3
First, as to the legality of petitioner’s plea bargain agreement with the State, we are
aware of the decisions by this court supporting her contention that a sentence falling
outside the span of years allocated to a specific range of offender and a specific category
of offense is illegal.2 The law is not settled on the issue, and other panels of this court
have affirmed such “hybrid” sentences. 3
A source of the lack of clarity appears to be whether a sentence must fall within the
overall felony class, as stated in the first column of the grid found in Tennessee Code
Annotated § 40-35-101, or within the column under the offender range. In Gentry v. State,
this court found that a defendant who entered a plea bargain agreement for a forty-year
sentence as a Range I offender for the offense of second degree murder had been legally
sentenced because “[s]econd degree murder is a Class A offense and the possible range
of punishment is fifteen to sixty years.” Gentry, 1994 WL 284115, at *3. Gentry is factually
similar to this case. Our supreme court, in Hicks v. State, cited the holding in Gentry and
acknowledged the varied approaches to this issue that this court has taken. Hicks, 945
S.W.2d at 709. The Hicks court observed that the legislature had evinced no intent in the
Sentencing Reform Act of 1989 to “limit prosecutor’s use of offender classification and
release eligibility as plea bargaining tools” and affirmed the sentence of Terry Hicks, who
pleaded guilty to voluntary manslaughter, a Class C felony, and was sentenced to ten
years as a Range I offender. The overall span of years for a Class C felony is three to
fifteen years. The span for a Range I offender is three to six years, therefore Hicks was
sentenced outside the span for Range I.
We find the holding in Hicks controlling in this case where, as in Hicks, a sentence
was imposed that was outside the span of years of the offense, based on the agreed range
of the offender, but within the overall statutory span of years for the class of felony.
Therefore, we conclude that petitioner's plea bargain agreement was valid and the
2
For cases disapproving such a sentencing structure, see Dixon v. State, 934 S.W.2d 69 (Tenn.
Crim. App. 1996); Woods v. State, 928 S.W.2d 52 (Tenn. Crim. App. 1996); Ronald Lature McCray
v. State, No. 02C01-9412-CC-00277, 1995 WL 568388 (Tenn. Crim. App., Jackson, Sept. 27,
1995); and George Cheairs v. State, No. 02C01-9304-CC-00070, 1994 WL 583331 (Tenn. Crim.
App., Jackson, Oct. 26, 1994).
3
For cases approving such a sentence structure, see, Gary Dewayne Donald v. State, No.
01C01-9710-CR-00481, 1998 WL 468646 (Tenn. Crim. App., Nashville, Aug. 12, 1998), perm. app.
denied (Tenn. Jan. 11, 1999);Terry L. Hicks, Jr., v. State, No. 02C01-9503-CC-00071, 1996 WL
39386 (Tenn. Crim. App., Jackson, Jan. 31, 1996), aff’d, 945 S.W.2d 706 (Tenn. 1997); and
Darnell Gentry v. State, No. 02C01-9304-CC-00052, 1994 WL 284115 (Tenn. Crim. App., Jackson,
June 29, 1994), perm. app. denied (Tenn. Oct. 3, 1994).
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sentence legal.
Petitioner also alleges that her diminished mental capacity negated the mens rea
element of the offense and also tolled the statute of limitations. There is nothing in the
record to support this contention. The psychological evaluation provided by petitioner
noted that petitioner was oriented to person, place, time, and situation and was
appropriately dressed and appeared normal. We find no basis for tolling the statute of
limitations based on the mental state of the petitioner.
Petitioner argues that she was coerced by defense counsel into accepting an illegal
plea agreement and that she did not enter her plea knowingly, voluntarily, and intelligently.
We have already concluded that the agreement and sentence applied in this case were
legal. Since the allegations do not fall within any exceptions so as to toll the statute of
limitations, as previously discussed, the petition is time barred.
Petitioner finally argues that her indictment is constitutionally void because it does
not allege all the elements necessary to constitute the offense of first degree murder. The
indictment stated:
THE GRAND JURORS of GIBSON County, Tennessee, duly
empaneled and sworn, upon their oath, present that ROBERT
DUVALL, JOY NELSON & ELIZABETH ALLISON on the ____
day of January, 1994, in GIBSON County, Tennessee, and
before the finding of this indictment, did unlawfully,
intentionally, deliberately and with premeditation kill Ronnie
Nelson, in violation of T.C.A. 39-13-202, all of which is against
the peace and dignity of the State of Tennessee.
Petitioner points to no essential element missing from this indictment, and we find none.
Petitioner had sufficient notice of the offense she was called to answer. See Tenn. Code
Ann. § 40-13-202.
Petitioner further alleges that the indictment failed to provide her with sufficient
notice because it failed to allege the “date and times the murder was allegedly committed
by use of a deadly weapon, i.e., a gun, a knife, a stick, etc.” The indictment need not
specify the time or place of the offense when time is not a material ingredient of the
offense. See id. § 40-13-207; see also Shadden v. State, 488 S.W.2d 54 (Tenn. Crim.
App. 1972), cert. denied, 411 U.S. 909, 93 S. Ct. 1538, 36 L. Ed. 2d 199 (1973). We
conclude that the indictment was valid.
CONCLUSION
5
Petitioner has presented no valid grounds to save her petition for post-conviction
relief from being time-barred. Additionally, we note that we cannot treat this petition as a
petition for writ of habeas corpus because it was filed in Gibson County where petitioner
entered her guilty plea, rather than in Shelby County were she is incarcerated. See Tenn.
Code Ann. § 29-21-105 (1980).
For the above stated reasons, we affirm the ruling of the trial court denying the
petition for post-conviction relief.
_____________________________________
ALAN E. GLENN, JUDGE
CONCUR:
__________________________________
JOHN H. PEAY, JUDGE
__________________________________
NORMA McGEE OGLE, JUDGE
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