### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Se pte m be r 20, 200 5 S es sio n



### WI LLIAM BINKLEY v . STATE OF TENNES SEE

Direc t Appeal from the Circ uit Court for Rutherford Coun ty No. F -54844 Jam es K . Clayton, Jr., Judge

No. M2005- 00988-CCA -R3-P C - F iled Novem ber 18, 2005

The pe titioner, Wi lliam Binkley , was c onvicted by a Rutherf

ord C o unty

Circuit Court jury

of attempted first de gre e m urder and re ckless endang erme nt, and the trial c ourt sentenc ed him to an eff ective twenty -five- y ear sentenc e. Subsequently , the petitioner filed a petition for post-conviction relief , claiming that he re ceive d the ineff ective a ssistance of trial counsel. Af ter a n evidentiary hearing, the post-conviction court denied post-convic tion relief, a nd the p et i t i o n er appea led. The State arg ues that the a

ppeal should be dismissed bec ause the petitio n er fi l ed his post-conviction petition outsi de the one -y ear statute of limitations. W e conc lude that the ca se should be re manded in order f or the post-c onviction court t o determine whether the petition was filed outside the one -y ear statute of limitations

. Reg arding the petitioner’s ine ffe ctive assistanc e of c ounsel claim, we hold that the post-conviction court proper ly ruled that the petit ioner did not rec eive the ine ffe ctive assistanc e of c ou ns e l.

Tenn. R. App . P . 3 Appeal as of Right; Case R em anded.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES a ndJ.C. M C L IN , J J
., joined.

J o h n H

. B ak e r , M u r f

r e e s b o r o , T e n n e s s e e , f

o r t h e ap p e l l a n t , W i l l i a mB i n k l e y.

Pa ul G

. S u m m e r s , A t t o r n e y G e n e r a l a n d R e p o r t e r ; P r e s t o n S h i p p , A s s i s t a n tA t t o r n e y G e n e r a l; Wil liam C. W hitesell, J r., Distri ct At torney Gene ral; and Tr evor H . Ly nch, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

This case arose from the pe titioner’s shooting his estra ng ed g irlfriend w hile their y oung son sto odne arb y . A jury

con vi cte d the pe tit ion e r o f atte mpt e d f ir st d e g re e mur de r andre c kle ss endang erme nt, and the trial court sentenc ed him to consec utive sentenc es of twenty -three y ear s and2

tw o y e ars , r e sp e c tiv e ly . T he app e lla nt app e a le d, a nd thi s c ou rt a ff ir me d th e c on vic tio ns . Se e Sta te v. Wil liam Binkley
, No

. M 2001-00404-CCA-R3-CD, 2002 WL 517138 (Tenn. Crim. App. at Nashville, Apr. 5, 2002), perm to a ppeal denied, (Tenn. 2002). Subsequently
, the petitioner filed a pro se pe tition for post-conviction relief , claiming that he rece ived t he inef fec tive assistance of trial counsel a nd that he wa s unable to assist with his defense. T h e p o s t-conviction court appointed counsel to ame nd the petition.

At the e vid e nti ary he ari ng , the pe tit ion e r te sti fi e d th a t he wa s a rr e ste d f or sh oo tin g the vic tim on Marc h 2, 1999, and re mained in jail for ove r two y ear s. During that time, he was pr escribed the psy cholog ical medications Celex a, Ha ldol, a nd Coge ntin. The petitioner was supposed to take one dose of Cele x a per

day , but the jailers g ave him the medic ation two or three t i m es p er day . The petitioner asked his trial attorney if he shoul d be taking the pills, and his attorney told him t o take them. The pe titioner stated that he ne ver sa w a doc tor while he w as i n jail, that the medications made him not want to re member a ny thing, and that he fe lt “drug g ed up” w hile he wa s taking the medicine. When the pe titioner was tra nsfer red to the Depa

rtment of Corre ction, he stopped taking the medication and beg an re membering the crimes. The petitioner said that he testified at trial that he did not reme mber the c rimes but t h at he now remembe red driving to the victim’s home a nd shooting he r. He said that he pointed the g un at the victim and pulled the trig g er but that he did not know the g un was c ocked.

The pe titioner testified that his trial attorn ey met with him in j ail three times and that they discussed a diminished ca pacity defen s e. The pe titioner testified at trial, but his attorney did not prepa re him to testify . Be fore the shooting, the petitioner had be en t re at ed b y Dr

. Alex Fider, a psy chiatrist, but the petit ioner’s attorney did not have Dr. F ider testify at trial. The pe titioner stated that Dr. F ider should have testified about how his medications affec ted hi m. He sa id that during the
tr ia l, a fe ma le jur or sa w him in a sta ir way ou tsi de the c ou rt ro om andthat he wa s w e ari ng sh a c kle s. He sa id th at he tol d h is atto rn e y abo ut the inc ide nt andthat hi s a tto rn e y tol d h im i t w a s “ no big deal.” He state d that his attorney did not prepar e him to testify at his sentencing hearing, that they did not discuss whether a ny witnesses would testify

at the hearing, and that his attorney told him he would probably

rec eive a twelve- y ear

sentenc e.

O n c r o s s

- e x a m i n a t i o n , t h e p e t i t i o n e r t e s t i f i e d t h a t h e d i d n o tr e m e m b e r h i s tr i a l t e s t i m o n y. Howeve r, he acknow ledg ed that he reme mbere d asking his attorney about his medication and te lling h i s at t o rn eyt h at a j u ro r s aw h i mi n t h e s t ai rw ay

. He ac k n o wl ed ged th at d u ri n g a p re tri al h ea ri n g, two doctors, including Dr. F ider, testified a bout his competenc y

. He stated that althoug h he testified
at t rial t hat he did not reme mber any thing about the crimes, he now re membere d the shooting a nd didno t in te ndto kill the vic tim

.

Th e pe tit ion e r’ s tria l a tto rn e y te sti fi e d th a t th e pe tit ioner nev e r c omp la ine d a bo ut h is medication and w as alway s polite and cohere nt. He said that they discussed the fa cts of the c ase but that the petitioner did not reme mber en t ering the vic tim’s house and shooting he r. A menta l

e va luatio n w a s c o n d u c t e d

o nthe pe tit ion e r, a ndthe pe tit ion e r’ s a tto rn e y int e rv ie we d th e tw o d oc tor s, including D r. F ider, who ha d trea ted the pet i t i o n er

. The attorney said that he did not think the3

petitioner knew what the pe titioner was doing on the day of the c rimes but that the t rial court ruled the petitioner’s doc tors could not te stify about a possible diminished ca pacity defe nse. He said that he dec ided not to call Dr. F ider to testify at t he petitioner’ s trial. He did not re member the petitioner telling him that a juror had seen the petit ioner in shackle s outside the courtroom, and he stated that if the petitioner ha d told him about it, he would have broug ht it to t he court’s attention. He sa id that no doctors testified at the petitioner’s se ntencing hearing be cause the doctors ha d testified in a pretria l he aring and the hearing w as part of the re cord. H e said that at the sentenc ing he aring , the
t r i a l c o u r tm a d e i tc l e ar

t h a ti t d i d n o tn e e d a n ym o r e p r o o f r e g ar d i n g t h e p e t i t i o n e r ’ s m e n t a l c ap a c i t y. On cr oss-examination, the petitioner’s trial attorne y t es t i fied that he arg ued the pe titioner’s dim ini sh e d me nta l c apa c ity a s a mit ig a tin g fa c tor

a t th e se nte nc ing he ari ng . H e st ate d th a t he did not tell the petitioner that the petitioner would r ece ive a twe lve-y ear sentenc e.

I n deny ing the petition, the trial court rul ed that there was nothing the petitioner’s tria l attorney could have done to cor

rec t the dose of the petit ioner’s medication. Moreove r, the trial c ourt noted that during the petitioner’s psy chiatric evaluation, the petitioner did not show he was ha ving

a ny pr ob le ms w ith his me dic ine . T he tr ia l c ou rt ru le d th a t th e pe tit ion e r’ s a tto rn e y a dequat e ly prepa red him to t es t i fy

. Reg arding the attorne y ’s fa ilure to arg ue that the pe titioner’s mental

c on dit ion mit ig a te d h is s e nte nc e s, th e tr ia l c ou rt state d th a t “ the Cou rt

kn e w o f h is m e nta l he a lth questions prior to that since that wa s broug ht in by ref ere nce into the sentenc ing hearing.” Reg arding

a jur or ’s se e ing him in sh a c kle s, the tr ia l c ou rt state d that the re wa s no e vid e nc e the e ve nt a c tua lly

occur red, de monstrating that the trial court did not believe the petitioner’s testimony . The trial c ourt de nie d th e pe tit ion fo r p os t- c on vic tio n r e lie f, a ndthe pe tit ion e r a pp e a ls.

II. Ana lys is

A. Statute of Limitations

The S tate claims for the first time on appea l that this court does not have jurisdiction over the petitioner’s c ase be cause he filed his pos t -c o n v i ct i on petition outsi de the one -y ear statute of limit ations provided in Tennessee Code Annotated se ction 40-30-102( a). The State contends that the one- y ear

period for filing the petition beg an to run on Nove mber 4, 2002, whe n the Tenne ssee Supreme Court d en i ed p er mission t o appea l. The State also conte nds that the petition was filed outside the s tatute of limit ations beca use t he cir cuit court c lerk’s stamp on the pe tition s hows that it was filed on Nove mber 10, 2003.

Under Tenne ssee Code A nnotated section 40-30-102(a ), a pe titioner must petiti on for po s t

- c o n v i c t i o n r e l i e f w i t h i n o n e y e ar o f t h e d a t e o f t h e f i n a l a c t i o n o f t h e h i g h e s t s t a te a pp e lla te court to which a n appeal w as taken. Pursuant to T ennesse e Code Annotated section 40-30- 102(b),

a court does not have jurisdiction to consider a petition for post-c onviction r el i ef i f i t wa s filed outside the one-y ear

statute of limitations unl ess (1) the claim in the petition is based upon a final ruling of an a

ppellate c ourt establishing a constit utional rig ht that was not rec og nized as ex isting at the tim e of

tr ia l, i f r e tr os pe c tiv e app lic a tio n o f that r ig ht i s r e qu ir e d; ( 2) the c la im i n th e pe tit ion is based upon n ew s ci en tific evidenc e esta blishing that such pe titioner is actually innocent of the4

offe nse or of

fense s for which the petitioner was convicted; or (3) the c laim in the petition seeks relief fr om a se nte nc e that w a s e nh a nc e d be c a us e of a pr e vio us c on vic tio n a nd su c h c on vic tio n in the c a se in which the cla im is assert ed wa s n o t a guilty plea with an a g ree d sentenc e, and the previous conviction has subsequently been held to be invalid. The statute of limitations m ay also be tolled wher e application of the one-y ear period wo u l d o ff

en d principles of due proce ss. See B urfor d v. State, 845 S.W .2d 204, 208-09 (Te nn. 1992). The “ one-y ear st atutory period is an e lement of the rig ht to file a post-convic tion petition and . . . is not an a ffirma tive defe nse that must be asserted by the State.” State v. Nix, 40 S.W .3d 459, 464 (Tenn. 2 0 0 1 ). The Post-Conviction Procedure Act imposes an af

firmative duty

on post-conviction courts to dism i s s p et i t i ons “[i] f it plainly appea rs from the f

ace of the pe tition
, an y annexed exhibit s or the prior pr ocee dings in the c ase tha t the petition was not filed . . . within the time se t f orth in the statute of limitations.” Tenn. Code Ann. § 40-30-106( b).

I n the instant c ase, the Tenne ssee Supre me Court denied the pe tition t o appea l on November 4, 2002. The State c laims that the p et i t i o n for post-conviction relief w as filed on Nove mber 10, 2003, the date that it is stamped “f iled” by the cler k’s offic e. Howe ver,

[i ]f pa pers require d or permitted to be filed

. . . are prepa red by or on behalf of a pr o se petitioner incar cer ated in a c orre ctional fa cility and

are not rec eived by the clerk of the c ourt until after the time fix ed for filing, f iling shall be timely i f t he pape rs wer e deliver ed to the app ro p ri at e i n d i v i d u al at t h e c o rr ec t i o n al fa ci l i t y wi t h i n t h e t i me fixed for f iling.

Tenn. Sup. Ct. R. 28 § 2(G). Ther efore, the date sta mped on the fa ce of a petition for po st- c on vic tio n r e lie f i s n ot n e c e ssa ri ly the da te wh ic h de te rm ine s wh e the r the pe tit ion wa s ti me ly fi le d, a ndthe qu e sti on be c ome s w he the r the p eti ti one r d e liv e re d h is p e tit ion to the app ro pr ia te individual at the corr ectional f acility on or bef ore N ovember

4, 2003.

The pe tition for post-conviction relief ref lects that the pe ti t i o ner sig ned the pe tition i n the prese nce of

a notary on November 3, 2003. Howeve r, t he petition states that “it is being mailed on 11 /5/ 03 .” Th e re is n oth ing in the re c or d to ind ic a te whe n th e pet ition e r d e liv e re d th e pe tit ion to prison authorities for f

iling. We note that in a letter , written by the petiti o n er t o the circ uit court cler k and date d November

8, 2003, the petitioner stated, “ Please find enclose d one (1) orig inal and

one (1) copy of the Petitioner’s Pro-se f iling of Post-Conviction Petiti on,” indicating that the petition was still in the petit ioner’s possession on November 8, 2003. I n any event, be cause the issue was not raised in the post-c onviction court and t h e re co rd indicates that the statute of limit ations was

never an issue, we are u nable to dete rmine whe ther the post-c onviction court had jurisdiction. There fore
, we must rema nd the ca se for an evide ntiary

hearing in or der f

or the post-c onviction court to determine w hen the petition wa s delivere d to the appropr iate authorities and if the post-convic tion court ha d juris d i ct i o n to consider the pe tition. Thi s timeliness iss ue must be re solved befor e the

case can be adjudicate d on the merits. See Antonio L

. S aulsberry v. State, No. W20 02 -0 25 38 -C CA -R 3- PC, 2 00 4 WL 23 97 67 , a t *1 (T e nn . Crim. App

. F e b. 9, 20 04 ), pe rm . to5

appea l denied, (Te nn. 2004). Ne verthe less, we will addr ess the is sues raised by the petitioner due
to the po ssi bil ity

of fu rthe r a pp e a l.

B. Ineff ective A ssistance of Counsel

The pe titioner claims that he re ceive d the i neff ective assistance of counsel because his trial attorney failed to pre sent evidenc e of his mental condition at his sentenc ing hearing. H e conte nds that such evide nce w ould have shown tha t he was suf fering f rom a serious me n t al condition and would have supported the trial court’s application of m itigating fac tor (8), that the petitioner “ was sufferi ng from a me ntal or phy sical condition that signif icantly reduc ed [his] culpability for the of fe ns e .” Te nn . Co de An n. § 40- 35 -1 13 (8 ). Th e pe tit ion e r al so c on te nd s th a t hi s a tto rn e y faile d to prepa re him ade quately

for tria l, failed to do something about his taking too muc h medication, and failed to objec t or move for a mistrial when a

juro r s aw t h e p eti tioner we aring shackle s in the courthouse sta irwell.

To be succ essful in his claim for post-c onviction relief, the petitioner m ust prove a ll factua l alleg ations contained in his post-conviction petition by clea r and c onvincing evidenc e. See Te nn. Code Ann. § 40-30-110( f). “‘Clea r and c onvincing evidenc e mea ns evidenc e in which ther e is no serious or substantial doubt about the c orre ctness of the co n cl u s i o n s draw n from the e vidence .’” State v. Holder, 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodg es v. S.C. Toof & Co., 833 S.W .2d 896, 901 n.2 (Tenn. 1992) ). I ssues reg arding the cre dibilit y of witnesses, the we ight a nd value to be a ccor ded their te stimony , and the fac tual questions raised by the evidenc e adduc ed at tria l

are to be re solved by

the post-conviction court as the trier of fa ct. See Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997)

. There fore
, we aff ord the post-conviction court’s finding s of fac t the weig ht of a jury verdic t, with such findings be ing c onclusive on appe al abse nt a s howing that the evidenc e in the rec ord pre ponderates ag ainst those finding s. I d. at 578.

A c la im o f i ne ff

e c tiv e a ssi sta nc e of

c ou ns e l is a

mixe d qu e sti on of la w a nd fa c t. S e e Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a presumption that those finding s are corr ect. See Fields v. State, 40 S.W .3d 450, 45 8 ( Te nn . 2 00 1)

. Ho we ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w p ur e ly de novo. I d. “To e stablish ineffec tive assistance o f co u n sel, the petitioner be ars the bur den of proving bot h that counsel’s pe rformance was de ficient a nd that the def iciency prejudice d the defe nse.” G oad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U. S. 6 68 , 6 87 , 1 04 S. Ct . 205 2, 20 64 (198 4) ). In e va luatin g wh e the r the pe tit ion e r h a s me t th is burden, this court must determi n e whether counsel’ s perf ormanc e wa s within the rang e of competenc e re quired of attorney s in criminal case s. See Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975).

The pe titioner claims that he rece ived t he ineffec tive assistance of counse l because his trial

a tto rn e y fa ile d to pr e se nt e vid e nc e abo ut h is m e nta l he a lth a t hi s se nte nc ing he ari ng in o rd e r t o mitigate his sente nces. H oweve r, the post-c onviction co u rt ru l ed that it had bee n awa re at theA l t ho ugh t he p et i t i o ner has not m ad e t he t ri al t rans cri p t a pa rt of t he ap p el l at e reco rd, b ecause t he 1

t r an s cr i pt of

t h e t r i al pr oce edi n g s w as f i l ed wi t h t h i s c ou r t on di r ec t a ppea l
, w e wi l l t ak e j u di ci al n ot i ce t h er eof for p urpo ses of t he current ap p eal

. D el b ri d ge v. Stat e, 74 2 S.W

. 2 d 26 6
, 26 7 (T enn. 19 8 7 ).

6 sentenc i n g h ea ri n g of the pe titioner’s mental condition. During the sentenc ing he aring , the trial 1

cour t s t ated that it believe d the appe llant “had menta l problems that may have a dded to this,” supporting t h e p o s t -convic tion court’s conc lusion that it had conside red the appellant’ s mental condition during sentenc ing. Moreove r, our revie w of the s entenc ing hearing tr anscript shows that the trial court applied seve ral e nhance ment fac tors to the appellant’ s sentence s. I n light of the application of the se fact o rs , the petitioner ha s failed to show that his sentenc es would have been differ ent eve n if the trial court had applied mitigating f actor (8).

Th e pe tit ion e r a lso c la ims that hi s a tto rn e y faile d to pr e pa

re him a de qu a te ly

fo r t ri a l. Howeve r, the a ttorney

testified that he and the petit ioner discussed the fa cts of the c ase, a nd the trial

co u rt ru l ed that the attorney adequately

prepa red the petitioner to testify . We see nothing in the

rec ord to preponde rate ag ainst the trial court’s finding

. As for the petitioner’s medic ation, the trial court rule d that the petitioner’s atto rn ey co u l d not have done anything to cor rec t the petitioner’s medication. We note that the petitioner’s trial attorney testified that the petitioner ne ver c omplained to h im a bo ut his me dic a tio n a nd that the pe tit ion e r wa s a lw a y s c oh e re nt. Th e tr ia l c ou rt ob vio us ly

acc redited the attorney ’s testimony over tha t of the petitioner. F inally , the trial court did not believe the petitioner’s c laim that a juror saw him we aring shackle s in the stairwell. The petitioner has f ailed
t o s h o w t h a t h i s a t t o r n e y r e n d e r e d d e f i c i e n t p e r f o r m a n c e o r t h a t h e w a s p r e j u d i c e d b y a n y d e f

i c i e n c y.

We note that the petit ioner also claims that the trial court improperly enhanc ed his sentenc es in lig ht o f B lake ly

v. Was hin g ton , 5 42 U. S. 2 96 , 1 24 S. Ct . 2 53 1 ( 20 04 ). I n B lake ly , th e Sup re me Cou rt he ld tha t

the “statutory

maxi mum” for Appr endi [v. New Jersey
, 530 U.S. 466, 1 2 0 S

. C t

. 2 3 4 8
, (2 0 0 0 ), ] p u rp o s es i s t h e ma x i m u m s en t en ce a j u d ge may impose solely

on the basis of th e facts refle cted in the jury verdic t or admitted by

the def endant. In other wor ds, the rele vant “statut o ry m axim um” is not the max imum sentence a judge may impose after

fi n ding a dditional facts, but the maximum he may imp os e wi th ou t a ny

a dd iti on a l f

ind ing s. Whe n a

jud g e inf

lic ts punishment tha t the jury ’s verdic t a lone does not a llow, the jury has

no t found all t he fa cts “whic h the law make s essential to the p u n i s h m e n t , ” a n d t h e j u d g e e x c e e d s h i s p r o p e r a u t h o r i t y.

Blakely , 542 U.S. at ___, 124 S. Ct . at 2537. B lakely did not disput e the a

ppropriate ness of a

trial court’s application of enhance ment fac tor (2), which is based on the exi stence of a de fenda nt’s prior criminal history , but called into question the constitutionalityof the a pplication of t he re mainder of our statutory

enhanc ement fa ctors without such fact s b ei n g fo u nd by a jury or admitted by

an

app e lla nt.7

Howeve r, our supre me court rec ently held that B lakely

does not announc e a ne w rule of law and that the “ Tenne ssee Crimi nal S entenc ing Reform Act does not authorize a se ntencing proce dure which violates the Six th Amendment rig ht to jury trial.” State v. Gome z, 163 S .W.3d 632, 651 n.16 (T e nn . 2 00 5) . G ive n th e dic ta te s o f G ome z, th e app e lla nt’ s r e lia nc e on B la ke ly mus t f a il.

III. Conclusi on

Ba sed upon t he record and t he parties’ brief s, we re mand the ca se to the post-convic tion court for f urther pr ocee dings c onsistent with thi s opinion.

___________________________________ NORMA McGEEOGLE, J UDGE