### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs January 24, 2001

ALAN HALL v. STATE OF TENNE SSEE

Appeal as of Right from the Criminal Court for Sullivan County

No. C43, 960 R. Jerry Beck, Judge

No. E2000-01522-CCA-R3-PC May 23, 2001

On April 30, 1996, th

e petitioner, Ala

n Hall, pled guilty

in the Sullivan County Cr iminal Court to first de gree murder, especially aggravated robbery, especially aggravated bur glary, aggravated burglary, theft over

$1000, and possession of

burglary tools. The petitioner received a total effective sentence of

life plus twelve years. Subsequently, on September 15, 1999, the trial court entered an order correcting the petitioner’s judgment of conviction for especially aggravated robbery to reflect that the petitioner

would serve one hundred percent (100%) of his sentence in confinement instead of thirty percent (30%) as was erroneously reflected on the original judgment. Within a year after the entry of the corrected judgment, the petitioner filed a pro se petition for post-conviction relief. The post-conviction court dismissed the petition as being barred by the statute o f li mitations. On appeal, the petitioner co

ntests the dismissal of his petition for post-conviction relief. Upon review of the record an

d the parties’ br

iefs, we affirm

the judgment of the

post-conviction c

ourt.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt is Affirmed.

N O RMA M C G EE O GLE , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., an d J AMES C URWOOD W ITT , J R ., J., joined.

Alan Hall, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of Tennessee

.
OPINION

I. Factual Backgroun

d On April 30, 1996, pur

suant toa plea agreement, the petitioner, Alan Hall, pled guilty in the Sullivan County Criminal Court to fir st degree murder, especially aggravated robbery, especially aggravated burglary, aggravated burglary, theft over $1000, and possession of burglary tools. The trial court sentenced the petitioner to life

imprisonment in

the Tennessee Department of Correction for the first degree murder conviction, fifteen yea rs incarceration

for the especia

lly1 The han dwritten d ate on the amended judgment reflects that the amended judgment was entered on January 15, 1999. However, t

he trial court noted that the

correct da

te of entr

y was September 15,1999, as is reflect ed by the clerk’s date st amp.

-2- aggravated

robbery conviction, twelve years in carceration for the especially aggravated burglary conviction, six years incarceration for the aggravated burglary conviction, four years incarceration for the theft conviction, and eleven months and twenty-nine days incarc erati on for the possession of burglary tools conviction. The trial cou rt ordered the petitioner to serve his sentence for especially aggravated bur

glary consecutiv

ely to his first degree murder sentences makes for a total effective sentence of life plus twelve years.

In September 1999, the Tennessee Department of Correction notified the trial court

o f an error on the petitioner’s judgment of conviction for especially aggravated rob bery. Th e judgmenterroneously reflected that the petitioner was to serve thirty percent (30%) of his sentence for especially

aggravated

robbery in confinement. However, Tenn. Code Ann. § 40-35-501(i)(2)(E) (1997) mandates that a defendant convicted of especially aggravated robbery serve one hundred percent (100%) of his sentence in confinement. The percentage of service noted on the petitioner’s original judgment of convic tion for especia

lly aggravate

d r obbery is, therefore, in direct contravention of a statute and, additionally, was not the percentage that the petitioner was informed by the trial court or by the State that he would serve. The record clearly shows that the trial court repeatedly

informed the petit

ioner during his gui

lty plea hearing t

hat he would

be required to serve

a minimum of eighty-f

ive percent (85% ) of his sentence for especially a

ggravated robbe

ry in

co nfinement. The trial court a rrived at the eig

hty-five perce

nt (85%) figure b

y consi dering th e fif teen percent (15%) sentence reduction that the petitioner could potentially earn duri ng hi s confinement. See

Tenn. Code Ann. § 4 0-35-501 (i)(1); see also Tenn. Code Ann. § 41-21-236 (1997). Additionally, the written negotiated plea agreement between the petitione r and the State, which the petitioner and h is attorn ey signed, also re flects that the pe

titioner would be r

equired to

serve a minimum of eighty-five percent (85%) of his espec ially aggravate d robbery senten

ce in confinem ent. Accordingly, on September 15, 1999, the trial court, after being alerted to the error by the TennesseeDepartment of Correction, entered an order correcting the judgment to reflect that the petitioner would be required to serve one hundred percent (100%) of his especially aggravated robbery convict

ion in confinement

. 1

On April27, 2000, within one year of the entry of the corrected judgment, the petitioner filed a pro se petition for post-conviction relief alleging the following grounds for relief: (1) The petitione

r suffered fro

m ineffective as sistance of couns el (A) The petitioner’s

confessio

n s hould have been quashed because of his me

ntal abilities (B) The pe titione r’s lack of understanding as to the consequences of the criminal offense committed should have been brought before th

e criminal court f

or it s consideration, the attorney for the

petit ionerknowing full well the mental abilities of the petitioner-3- (C) That the indictmen

ts constitute

multiplicity

and duplicity, and by allowing the petitioner to plead guilty to them effectively

waivedhis right to a conventional app eal to those issues (2) The trial judge did notinform the petitioner during any part of the proceedings that he has the rig ht to appeal any adverse decision made, thereby denying the petitioner his constitutional rights of due proc ess through the court system (3) The trial court erred in convicting the petitioner as an adult when test scores clea

rly showed him to ha

ve the mentality of

a child (4) The trial judge violated the plea agreement between the petitioner and the State

when he called the petitioner back to be resentenced on the fifteen year sentence for especially aggravated robbery. Withoutholding an evidentiary he aring, the post-conviction court dismissed the petition as being untimely. On appeal, the petitioner implicitly argues that the corrected judgment should be considered

the “final judgment” for the purpose of determining when the statut e of limita

tions applying to claims for post-conviction relief commences.

II. Analysis We begin our

analysis by noting that post-conviction relief “shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30- 203 (1997). However, the Tennessee Code provides that

a person in custody under a sentence of a court of this state must petition for p ost-convi ction relief under this part . . . within one (1) year of the date on which the judgment became final , or consideration of such petition shall be barred

. . . . Time i s of the essence of the rightto file a

petition for post-conviction relief . . . and the one-year limitations period is an element of the right to file such an action and is a condition upon its e

xercise. Excep

t as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief

. . . shall be extinguished

upon the expiration of the limitations period. Tenn. Code Ann. § 40-30-202(a) (1997) (emphasis added). Furthermore, our supreme court re

cently stated that the language of the A ct is unam biguous. The Act clearly mandates that post-conviction claims be filed within one year from the date of the final action. . . . [The petitioner] had one year after [his judgment became final] in which to file his petition, but he did not do so. Therefore, [the petitioner] failed to seek time ly post-conviction relief under a strict application of the statute. Dexter L. Williams v. State

, No. E1 999-00871-SC-R11-PC, 2001 WL 304163, at *3 (Tenn. at Knoxville, March 29, 2001) (publication pending).2 This court has opined that , upon a guilty pl

ea pursuant to a plea a greement and a waive

r of appeal and sentence, a judgm ent beco mes fina l on the da y of the g uilty plea. See State v. Ha ll , 98 3 S. W.2d 710, 711 ( Tenn . Cr im. App. 1998); Lakeith O. Ligh tfoot v. State , No. 02C01-9703-CR-00129, 1998 WL 64005, at *1 (Tenn. Crim. App. at Jackson, February 18, 1998). Howe ver , a pane l of thi s co urt rec ent ly o bse rve d th at our

supreme court has not reviewed the correctne ss of this hold ing and urged th e suprem e court to d o so. See State v. Harold L. Green , No. E2000-00616- CCA- R10-C D, 200 1 WL 9926, a t *3 (Ten n. Crim. A pp. at Kn oxville, Jan uary 4, 2 001).

-4- In the instant case, the p ost-conviction cou rt dismissed the petitioner’s claim for relief withoutconducting an evidentiary hearing, finding tha t reli ef was barred b

y the statute of limit

ations. For the purpose of determining the date w hen the statute of limita tions bars the petit

ioner’s claim for relief, the post-conviction court found that the judgment in this case became final after the entry of the original judgment of conviction, and the entry of the corrected judgment did not serve to grant the petitioner an additional year in which to file for post-conviction relief. 2 We agree.

The petitioner

did not file for

post-conviction relief until April 27, 2000, almost three years after the expiration of the statute of limitatio

ns for his post-con

viction claim. Addi

tionally

we note that, in the p etitioner’ s response to the Sta te’s motion to dismiss t

he petition for pos

tconviction relief, the petitioner concedes the untimeliness, stating, “[w]hile it is true that the petitioner was not within the time frame to file a [p]etition for [p]ost[-c]onviction [relief] before the Stateallegedly corre

cted his sentence

, the correction

noneth el ess violated his [p ]lea [a]gree

ment, making his case ripe for [p]ost[-c]onviction [r]elief.” Furthermore, we have previously noted that “correction

of a judgment pur suant to Ru le 36 does not extend the statutory period for filing a petition for post-conviction relief.” Kenneth J. Hall v. State , No. 03C01-9609-CR-00342, 1998 WL 208080, at *2 (Tenn. Crim. App. at Knoxville, April 15, 1998).

T his court has stated: In making changes for clerical er ror, the record

in the case

must show that the judgment en tered omitted a portion of the judgment of the court or that the judgment

was erroneously entered. The most reliable indicator that

clerical error was made is the transcript of the hearing

or other papers filed in connection with the proceedings which show the judgment was not correctly entered. State v. Jack Lee Thomas, Jr. , No. 03C01-9504-CR-00109, 1995 WL 676396, at *1 (Tenn. Crim. App. at Knoxville, November 15, 1995). The transcript of the petitioner’s guilt

y plea hearing c

learly shows that the petitioner

was repeatedly

advised by the tria

l court that he wou

ld be required to serve

a mini mum of ei ghty-five percent (85%) of his fifteen year sentence for especially aggr avated robbery in confinement. Once again, we note that the eighty-five percent (85%) figure mentioned by the court included the fifteen percent (15%) sentence reduction the pet

itioner could pote

ntially

earn while

in confinement. See Tenn. Code Ann. § 40 -35-501(i)(1); see also

Tenn. Code Ann. § 41- 21 -236. Furthermore, the written guilty plea

agreement betw

een the petitione

r and the State

als o provides that the petitioner is required to serve a minimum of eighty-five percent (85%) of his fifteen year sentence in confinement. Accordingly, the trial court pro perly corrected the petitioner’s judgment of conviction when notified of the error by the Tennessee Department of Correction.-5- We also note that nothing in the record indicates that any of the petitioner’s claims for post-conviction relief would satisfy any of the three exceptions to the post-conviction statute of limita ti ons as contained in Tenn. Code Ann. § 40-30-202(b) and (c). Thus, we conclude that the post-conviction court properly dismissed the petitioner’s claims as being time-barred.

III. Conclusion Based on the fore

going, we affirm t

he judgment of the p

ost-conviction co

urt.

___________________________________ NORMA McGEE OGLE, JUDGE