# FILED
December 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1998 SESSION

KEVIN LAVELL ABSTON, ) ) C.C.A. NO. 02C 01-9807-CR-00212 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR., STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
KEVIN LAVELL ABSTON, Pro S e JOHN KNOX WALKUP Lauderdale Co. Correctional Complex Attorney General & Repor ter Site #1 P.O. Box 1000 DOUGLAS D. H IMES Henning, TN 38041-1000 Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JOHNNY R. McFARLAND Asst. District Attor

ney General 201 Poplar Ave., Suite 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED IN

PART, REVERSE D IN PART, A ND REMAND ED JOHN H. PEAY, Judge2 

### O P I N I O N

On November 17, 1989, t he petitioner pled guilty to sixteen counts of robbery with the use of a deadly weapon and was sentenced to fifty years in prison. The petitioner

did not directly appeal these convictions. H owever, on June 1, 1998, the petitioner

filed sixteen pro se petitions for po st-convic tion relief alleging that his convictions

were illegal, that his sentence was illegal, that the petitioner

was denied the effect ive assistance of counsel, and that his guilty pleas were not knowing an d volunta ry. On June 26, 1998, the post-conv iction court dismissed the petitions on the ground that they were barredby the applicable statute of limitations. Thepetitioner now appeals and argues that the post-convicti on court erred whe n it dismi ssed his petitions for postconvic tion re lief.

When the petitioner pled guilty on November 17, 1989, a three-year statute of limitations was in e ffect regarding post-conv iction petitions. T.C.A. § 40-30-102 (repealed 1995). This statute of limitations began to run w hen the judgments

against the petitioner

became final in December of 1989. See State v. Moore , 814 S.W.2d 381, 382 (T en n. Crim. App. 1991). As the peti tioner’s post-convic

tion petitions were fil ed after December

1992, th e three-y ear statute of limitations had expired. Although there are
exc eptions to the statute of limitations, the defen dant has alleged nothing that would bring his petition within those limited c ircumstancesentitling him to reli ef. See T.C.A. § 40-30-202(b).
Although the grounds al leged in the post-conviction petitions do not fall under any of the statutory ex

ceptions to the applicable st atute of limitations, the petitioner
co nte nds that the statute of limitations does not apply in this case becau se his1 We note that the peti tioner doe s not all ege any grounds t o justi fy a fi nding of an i llegal convicti on other than the grounds used t o argue that his sentence was i llegal . As the recor d is also devo id of a ny evid enc e tha t mig ht su ppo rt a fin ding t hat h is con viction was illegal, t his co nten tion is without merit even i f not barre d by the st atute of l imitati ons. 2 Under the sentencing gu idelines in effect before Novembe r 1, 1989, a Range I standard offend er could b e sente nced to ten to thirty-five year s for rob bery by the us e of a de adly weap on. See T.C.A. § 40-35-1 09 (1982); T.C. A. § 39-2-501( 1982). Under t he Criminal Sent encing Reform Act of 1989, robbery by use of a deadly weapon wa s characterized as a Class B felony and a R ange I standard offend er conv icted of a C lass B fe lony could o nly be sente nced to eight to twelve years. See T.C.A . § 40-35-118 (1989); T.C .A. § 40-35-112(a)(2) (1989).

3 Although t he judgment form is si lent on t his issue, the plea agr eement indicates that t he senten ces are concu rrent. 3 convictions and sentences are illegal and theref or e void. We agree that the statute of limitations does not bar the petitioner’s claim that his sentences are illegal

. See State
v. Mahler , 735 S.W.2d 226, 228 (Tenn. 1987)(notingthat generally, an i llegal judgment maybe noticed at any time, even after it becomes final). The sta tute of limitations, however, does bar the petiti oner’s c ontentions that his convictions are illegal, 1 that he received ineffe ctive assistance of counsel, and that hi s guilty pleas were unknowi ng and involunt ary.

After

a review of the record, it appears that the petitioner’s sentences may be illegal in that

they exceeded the allow able sentence for

a Range I standard offender under the old sentencing guidel ines and all ranges under the Criminal Sentencing Reform Act of 1989. 2 However, from the rec ord it is impossible to make a clear determination as to whether the sentences are illegal because there is only one judgment form included in the record and it appears to have been used for all si xteen of the petitioner’s convictions. This judgment form fails to indicate if the fif ty-year sentence imposed on the pet iti oner

is a total of several consecutive sentences or if it is one term imposed on all counts to run concu rrently. 3

In light of the foregoing, w e remand this cause so that an attorney c an be appointed for the petitioner and a hearing can be held to determine if the petiti oner’s4

sentences are indeed illegal. If the sentences are found to be ill egal, they should be set aside and a hearing held to determi ne if the defen dant is entitled to withdr aw his guilty pleas. See State v. Burkhart , 566 S.W.2d 871, 87 3 (Tenn. 1978).

Accordin gly, the dismissal o f the petitioner’s petitions for post-conviction reliefis affirmed in part, rever sed in part, and remanded for a hearing to determine the legality of the petitioner’s sentences.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ L. T. LAFFERTY, Senior Judge