### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecember

12, 2001 JASON MICHON v. S TATE OF TENNES SEE Direct Appeal from the Criminal Court for Davidson County No. 98-B-1159 Cheryl A. Blackburn, Judge

No. M2001-00343-CCA-R3-PC - Filed January 4, 2002

Petitioner appealsthe summary dismissal of his petition for post-conviction relief after the trial court found it was barred by the statute of limitations. We conclude that due process considerations may have tolled the

running of

the statut e of limitati ons if tria

l counsel misled pet

itioner c oncerning his intention to pursue an appeal. We, therefore, reverse and remand for an evidentiary hear ing on the issue of tolling. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Rever sed; Remanded J OE G. R ILEY , J., deliv ered the opinion of

the cour t, inwhich J AMES C URWOOD W ITT , J R . and J OHN E VERETT W ILL IAMS , JJ., joined. Jason Michon, Clifton, Tennessee, Pro Se

. P aul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General ; Victor S. Johnson, I

II, Distr ict Attorn ey Gene ral; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION PROCEDURAL HISTORY Petitioner was conv icted by a jury of aggravated robbery in February 1999. He was sentenced to a term of eleven years in May 1999. A timely filed motion for new tria l was den ied in July 1999. Apparently, trial counsel did not file a notice of appeal. Petitioner filed a pe tition for post-conviction relief on December 21, 2000. The petition alleged, inter alia , that he was deprived of effective assistance of counse

l prior to a

nd during t

rial.1 We note t ha t Te nn . R. Cr i m. P. 37 (d) p rov ides th at cou nsel fo r any defe nda nt w ho h as a rig ht to ap pea l shall

either timely f ile notice of ap pea l or a w ritten w aiver of ap pea l signe d by the d efen dan t. The tr ial court noted t hat no appeal was fil ed from the origi nal conviction, but t he record is sil ent as t o whether a wa iver of appea l was f

il ed. Nev ertheless, we a ss ume i t w a s not as the st at e does not contend otherwise. Regardless , the f ailur e to fi le a writ

ten waiver does not, i n and of its elf, render the jud gm ent in valid

. See Ranier v. State , 95 8 S

. W. 2d 35 6, 35 7 ( Te nn . Cr i m. (con tinue d...) -2- Petitioner also asserted

he was de

prived of effec tive assis tance of

counsel d

ue to counsel’s failure to pursue appellate relief , although petitioner was led to believe counsel was pursuing an appea l. The trial court

summarily

dismissed t

he petitio n, conclu ding it

was barred by the statute of limitations. The trial court further concluded petitioner made no allega tions which would toll the statute of limitations. This appeal followed.

DUE PROCESS TOLLING OF STATUTE OF LIMITATIONS A petition for post-conviction relief must be filed within one year of the date the judgment became final if no appeal was taken. Tenn. Code Ann. § 40-30-2 02(a). Here, the judgment b ecame final in August 1999, thirty days after the sentencing judgment was entered. The December 2000 filing of the petition was well beyond one year. T hus, the pe

tition wasuntimely un

less the st atute of limitations was tolled. This case is controlled by Williams v . State , 44 S.W.3d 464 (Tenn. 2001), which, in fairne ss to the trial

court, was file d subsequ ent to the order of dismissal. The record in Williamsindicated the petitioner mighthave been denied the opportunity to timely challenge his conviction through no fault of his own, but because of possible misrepresentations of counsel. Id . at 468. The court noted that if one err oneously b elievesthat coun sel is con tinuing to r

eprese nt him in see

king appe llate relief, he is essentially precluded from pursuing certain remedies indepe ndently. Id . at

469 (citations omitted). The court concluded that if counsel, in fact, misled the petitioner into believing representationwas continuing, then due process required tolling of the statute of

limitations. Id . at 471. The court remanded for an evidentiar y hearing relating to the tolling issue. Id

. Petitioner in the case sub judice allegedhe was led to believe that counsel was pursuing an appeal of his conviction, andhe did not learn otherwise until after the one year ha d run. Based upon the allegati ons of pet

itioner, w e conclu de that he is entitle d to a

hearing on the issu e of tolling. Just as the court did in Williams , we r emand for an e videntiary hearing to determine whether the petitioner was, in fact, misled into believing that his counsel would seek appellate review. See id at 471. Specifically, the trial court shall determine (1) whe the r due process tolled the statute of limitations so as to give the petitioner a reasonable opportunity after the expiration of the limitations periodto present his claim in a meaningful time and manner; and (2) i f so, whether petitioner’s filing of his petitio n on Dece

mber 21, 2 000, was with i n the reasonable opportunity afforded by the due process tolling. Id . Counsel should be appointed to represent petitioner. 11 (.. .continued)

Ap p. 19 97) ; Da le M . Jenk ins v. S tate , CCA No. 01C01-9405-CR- 00156, 1995 WL 218500, at *3 ( Tenn. Crim. App. Ap r. 13, 1 995 , at Na shv ille). -3- CONCLUSION Accordingly, we reverse the judgment of the trial court and re mand for a n evidentiary hearing.

___________________________________ JOE G. RILEY, JUDGE